[00:00:01] Speaker 02:
Case number 15-3084, the United States of America versus Devon Cleveland Hunt, also known as Man Appellant.

[00:00:08] Speaker 02:
Mr. Sussman for the appellant, Mr. Feldman for the appellate.

[00:00:11] Speaker 02:
Good morning, Mr. Sussman.

[00:00:13] Speaker 03:
I'm under the heading of First Things First.

[00:00:15] Speaker 03:
I guess I have to deal with the question of why does my client have the right to appeal in this particular case.

[00:00:22] Speaker 03:
And we turn first to the plea agreement and make the same kind of analysis that I believe a panel made last week or the week before in which, Judge, that you participated in.

[00:00:34] Speaker 03:
And it's looking first at the plain language of the appellate waiver contained in the plea agreement.

[00:00:41] Speaker 03:
which says that there's a waiver of a right to appeal a sentence, including any term of imprisonment, fine, forfeiture award, or term of supervised release.

[00:00:54] Speaker 03:
Now, if I recall the grammar I learned, there's what we call parallel structure there.

[00:01:00] Speaker 03:
Term of imprisonment clearly is a temporal term relating to the amount of imprisonment.

[00:01:06] Speaker 03:
We're not talking about hard labor.

[00:01:07] Speaker 03:
We're not talking about anything but the length of imprisonment.

[00:01:10] Speaker 03:
And I would submit that the use of the word term of supervised release in this particular case applies to the length of supervised release.

[00:01:21] Speaker 03:
notable note that in a drug case as this was, the term of supervised release is up to life.

[00:01:28] Speaker 03:
There are guidelines on it, but it is statutorily up to life.

[00:01:31] Speaker 03:
So the question about the term of supervised release is... Mr. Sussman, what page are you on?

[00:01:40] Speaker 04:
JA37.

[00:01:42] Speaker 02:
How about the setting the conditions of it?

[00:01:47] Speaker 00:
So Mr. Sussman, the client agrees to waive the right to appeal without any conditions, just the right to appeal, including all of those enumerated elements.

[00:02:00] Speaker 00:
So how does your argument get you there if the waiver is a blanket waiver and then the enumerated terms are including but presumably not limited to?

[00:02:13] Speaker 03:
Well, I would argue that if there was a blanket waiver, there's no need to explain the secondary nature of what you're waiving.

[00:02:22] Speaker 03:
I mean, this is a fairly, to a criminal defendant, this is a fairly arcane kind of waiver.

[00:02:28] Speaker 03:
He well understands, and this was 11C1C plea, that the term of

[00:02:33] Speaker 03:
The term of imprisonment is not to be disputed.

[00:02:38] Speaker 03:
But in terms of the foreseeability or the understanding of any particular defendant, I think this is designed to clarify that.

[00:02:46] Speaker 03:
And the clarification is inherently ambiguous as to what exactly is he waiving.

[00:02:53] Speaker 02:
The answer, Judge Henderson's right.

[00:02:55] Speaker 02:
Go ahead.

[00:02:57] Speaker 02:
Are you saying that you're waiving the authority but not

[00:03:02] Speaker 02:
the language waives the authority, waives the challenge.

[00:03:05] Speaker 03:
You asked about conditions of release.

[00:03:08] Speaker 03:
Right.

[00:03:08] Speaker 03:
I think conditions of release pertain, and in terms of the normal usage of that term, conditions of release, it relates to bail conditions, because conditions of release is not really what we use

[00:03:23] Speaker 03:
is common phrase that's used as to bail, and bail is an open question.

[00:03:28] Speaker 02:
You mean bail on appeal or what?

[00:03:30] Speaker 02:
Well, you can... Okay, I mean, but this is, again, the right to appeal the sentence, including, and coming right after the term of supervised release and to set the conditions of release.

[00:03:43] Speaker 02:
You think because they've dropped the word supervised, that doesn't...

[00:03:47] Speaker 03:
I would argue that.

[00:03:49] Speaker 02:
Oh, OK.

[00:03:49] Speaker 03:
I would argue, because there is something called conditions of release.

[00:03:53] Speaker 03:
The more common terminology for conditions of release is bail, which you.

[00:03:58] Speaker 04:
Well, we've seen cases of all kinds of conditions on them, not unlike the one here, the geographical limitation.

[00:04:05] Speaker 03:
Well, that's a subsequent question.

[00:04:06] Speaker 04:
Next up in the registry, any number of things.

[00:04:08] Speaker 04:
In terms of what do we mean by conditions of relief, it's a broad array.

[00:04:14] Speaker 03:
Well, then the court is making the point or expressing the belief that conditions of release relate to supervised release and not necessarily, why would you have to say it twice?

[00:04:25] Speaker 03:
Why would you have to say it twice if it's related to the same thing?

[00:04:29] Speaker 02:
Because one, as you pointed out, goes to the length of the supervised release.

[00:04:33] Speaker 02:
The second goes to the conditions.

[00:04:37] Speaker 03:
Well, then I would argue that there's a second ambiguity because

[00:04:43] Speaker 03:
The question of bond and question of condition of release is up for grabs in terms of any plea.

[00:04:49] Speaker 03:
The judge has plenary authority to set conditions of release.

[00:04:53] Speaker 00:
I know this wasn't briefed by either side, this phrase, authority of the court to set conditions of release.

[00:05:00] Speaker 00:
Why authority here and not authority with respect to the other listed items?

[00:05:09] Speaker 03:
I'm not sure what your answer is.

[00:05:11] Speaker 00:
Including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release.

[00:05:17] Speaker 00:
And it doesn't say condition of release.

[00:05:19] Speaker 00:
It says authority of the court to set conditions of release.

[00:05:21] Speaker 00:
Why isn't it authority of the court to set a term of imprisonment, fine, forfeiture?

[00:05:25] Speaker 03:
Well, I think it's a good question.

[00:05:27] Speaker 03:
Obviously, these are drafted by the government.

[00:05:31] Speaker 03:
We see one after another.

[00:05:32] Speaker 00:
We'll ask the government also.

[00:05:34] Speaker 03:
So I think that that's a better question for Mr. Hellman to be answering.

[00:05:39] Speaker 03:
I don't know why the language was used.

[00:05:43] Speaker 03:
argue that the interpretation of the language is such that it is ambiguous, and that I would think that the more likely way to interpret it is that the term of supervisory release relates to time.

[00:05:56] Speaker 03:
The court has vast discretion with regards to the amount of time that can be imposed in a drug case such as this.

[00:06:05] Speaker 03:
And I would think that terms of supervised release would be the applicable phrase if I was talking about the actual conditions of supervised release.

[00:06:12] Speaker 00:
And you had other arguments about the appeal waiver stemming from the colloquy?

[00:06:17] Speaker 03:
Well, there was something, actually, the government brought up.

[00:06:20] Speaker 03:
And I don't think that's my best argument, to be honest.

[00:06:24] Speaker 03:
I think that there is some question about the court spoke, I think, incorrectly and then corrected itself.

[00:06:30] Speaker 03:
There was some inherent ambiguity in what the court told Mr. Hunt.

[00:06:35] Speaker 03:
And I think that probably is additive to the inherent ambiguity

[00:06:45] Speaker 03:
In the document, I mean, the judge didn't help Mr. Hunt by virtue of explaining.

[00:06:53] Speaker 03:
Let me point out, this was not one of the standard conditions of probation or supervised release.

[00:06:59] Speaker 03:
This was a special condition that was urged upon the court at the last moment by the government in its sentencing memorandum.

[00:07:06] Speaker 03:
So this was an unanticipated kind of condition in terms of what one normally would think to be the standard terms of supervision.

[00:07:15] Speaker 03:
This came out of blue.

[00:07:18] Speaker 03:
carried to extreme, the government could have asked that in order to cut crime in the District of Columbia, all persons on supervised release reside outside of the District of Columbia and not enter the District of Columbia.

[00:07:29] Speaker 02:
Well, let me ask you about coming out of the blue.

[00:07:32] Speaker 02:
You argue in the gray brief that there was no, absolutely no indication of this condition would be imposed prior to the sentencing hearing itself.

[00:07:41] Speaker 02:
But the government in the sentencing memorandum that it filed 10 days before the hearing requested this specifically.

[00:07:48] Speaker 03:
It was in the memorandum, clearly.

[00:07:50] Speaker 03:
And if I said that, then I misspoke or miswrote.

[00:07:55] Speaker 03:
I don't recall the memorandum coming in that far in advance.

[00:07:59] Speaker 03:
If that's what the docket says, that's what the docket said.

[00:08:02] Speaker 03:
But in terms of it was a novel, to my experience at least, it was a very novel condition.

[00:08:11] Speaker 03:
I have not seen that condition anecdotally in any case that I've tried or been involved in the sentencing hearing.

[00:08:18] Speaker 00:
Mr. Sussman, considering it's not clear that we reach it, but considering the condition that was imposed, one of the things that wasn't entirely clear to me from the record was the relationship of Mr. Hunt to this neighborhood.

[00:08:33] Speaker 00:
It appears that he did not personally reside there.

[00:08:38] Speaker 03:
At the time of the offense, I do not believe he personally presided there.

[00:08:43] Speaker 03:
He had a long history with that neighborhood, some of it not particularly to his credit, but it also removed him.

[00:08:50] Speaker 00:
Well, those were the kinds of statements that your briefing set forward, was that he had connection, been a member of the community.

[00:09:01] Speaker 00:
But the government says he maintained an apartment for the sole purpose of distributing heroin and you don't point anything in the record or you also in your briefing don't actually dispute that and it would make potentially a difference if that were his home.

[00:09:19] Speaker 00:
But we don't have any record basis to believe that it is his home.

[00:09:22] Speaker 04:
Isn't there an indication that he actually did have a home somewhere else?

[00:09:26] Speaker 03:
That's right.

[00:09:27] Speaker 03:
I did say that in the brief because there was a home that was searched in Maryland as part of the investigation.

[00:09:34] Speaker 03:
And I thought it was appropriate to put that in, in fairness, that there was questions about residents.

[00:09:42] Speaker 03:
He had a long attachment to the neighborhood.

[00:09:44] Speaker 03:
The government wouldn't maintain that it was a criminal attachment.

[00:09:46] Speaker 03:
But as the court is probably well aware of, Potomac Gardens is a large housing unit of multi

[00:09:52] Speaker 03:
hundreds of units and he and family members had to live there, it was my understanding, at some point along the line.

[00:10:01] Speaker 03:
Toward that end, I would point out that the general conditions of probation of supervised release preclude you from selling drugs or committing crime.

[00:10:09] Speaker 03:
So I don't – I didn't see why the geographical boundaries of that really change anything, and they seem to be unnecessary.

[00:10:17] Speaker 03:
I see – I think my time has run down, and no further questions.

[00:10:21] Speaker 02:
Okay.

[00:10:21] Speaker 02:
We'll give you a couple minutes in reply.

[00:10:24] Speaker 03:
Thank you.

[00:10:24] Speaker 02:
Thank you.

[00:10:25] Speaker 02:
Mr. Feldman?

[00:10:35] Speaker 01:
Good morning.

[00:10:36] Speaker 01:
Jason Feldman for Appellee United States.

[00:10:39] Speaker 01:
Your Honors, I'd like to start at the same place Mr. Sussman started, which is the waiver issue.

[00:10:45] Speaker 01:
It's the government's position, just as Your Honor pointed out in questioning Mr. Sussman, that the waiver is phrased in a way where the first clause is the operative clause.

[00:10:56] Speaker 01:
It states that defendant agrees to waive his right to appeal the sentence in this case.

[00:11:02] Speaker 01:
And everything that follows after that are illustrative examples.

[00:11:06] Speaker 01:
And those examples are included by the government in an effort to provide the defendant with as much notice, as much contacts and examples as possible about the rights that the defendant would be waiving by entering into the rule 11C1C.

[00:11:20] Speaker 00:
But Mr. Feldman, Mr. Sussman also makes a good point, which is if all you needed to say was,

[00:11:25] Speaker 00:
zero, you have no right to appeal, then there wouldn't be the elaborating follow-on clauses.

[00:11:32] Speaker 00:
And as we know, there are certain limited rights to appeal, notwithstanding an appeal waiver.

[00:11:38] Speaker 00:
And the difficulty I think we have is that term of imprisonment followed by term of supervised release does naturally imply, what Mr. Sussman said it does, which is the length of the time that you're being subject to supervised release.

[00:11:52] Speaker 00:
And then we have this,

[00:11:53] Speaker 00:
somewhat strange phrase about the authority of the court to set conditions.

[00:11:59] Speaker 00:
Why is that phrase differently?

[00:12:01] Speaker 00:
What does that mean by the authority of the court?

[00:12:04] Speaker 01:
And Your Honor, I'll address both points in turn.

[00:12:06] Speaker 01:
The first regarding term of imprisonment and term of condition of supervised release.

[00:12:11] Speaker 01:
When we're talking about imprisonment, there are not conditions on imprisonment.

[00:12:17] Speaker 01:
Imprisonment is imprisonment and the length of time that you are incarcerated for.

[00:12:22] Speaker 01:
Supervised release is different from imprisonment with respect to the fact that it inherently includes all sorts of conditions, and that's why it's supervised release.

[00:12:33] Speaker 01:
Reporting conditions, drug testing conditions, stay away conditions.

[00:12:37] Speaker 00:
I understand that it's susceptible of being read the way that you propose it be read, but it also is quite naturally read the other way.

[00:12:46] Speaker 00:
And this is a very grave thing for someone to be asked, someone who's not a lawyer and whose liberty is on the line, is being asked to

[00:12:57] Speaker 00:
wave something that is future and conjectural, it's very hard to grasp the nature of what's being waved.

[00:13:03] Speaker 00:
And I'm just a little surprised that the government hasn't been able to be clearer and hasn't been more vigilant in policing the clarity of the terms that it puts down.

[00:13:13] Speaker 00:
Do you have any theory of what it means and why this would refer to the authority of the court?

[00:13:18] Speaker 01:
Yes, Your Honor, in talking to my colleague during the argument for Mr. Sussman, we think, and we can clarify this after the argument, we're happy to do so, but we believe that that phrase stems from one of this Court's decisions, and we think that that decision is the Melania decision that had to do with whether the Court had authority or whether in a local

[00:13:43] Speaker 01:
The charge in that case actually that was tried by a federal court was a DC Superior Court charge.

[00:13:49] Speaker 01:
And in Superior Court, the probation office is the office that sets conditions of release, not the court.

[00:13:56] Speaker 01:
And so we believe that, and I think that's an important point because

[00:14:02] Speaker 01:
The court brought up the fact that maybe the waiver would be clearer if it was shorter.

[00:14:06] Speaker 01:
And maybe it would be.

[00:14:07] Speaker 01:
But I think what the length of this waiver, the reason it's so long, is because in response to different examples in different cases from this court, where the court has held that the waiver is not clear, what the governments strive to do is to provide defendants, for the exact reasons Your Honor mentioned, with as much notice as possible about the types of rights that they would be waiving.

[00:14:30] Speaker 01:
And it's very difficult to provide every single example that could possibly come up.

[00:14:36] Speaker 00:
Right.

[00:14:37] Speaker 00:
No, I understand there's some drafting challenges and they're also given that it isn't and I don't think can really be done through one blanket stroke because there are

[00:14:47] Speaker 00:
some kinds of appeals that are retained, that is a challenge.

[00:14:52] Speaker 00:
But I would emphasize how important it is to try to get that right.

[00:14:55] Speaker 00:
And then we have the district court and open court saying, you may also have a right to appeal or challenge your sentence or conviction if you think the sentence is illegal.

[00:15:06] Speaker 00:
or if it exceeds the applicable guideline range or resulted from ineffective assistance.

[00:15:11] Speaker 00:
So we have additional ambiguity that the government did not correct.

[00:15:17] Speaker 00:
And when the judge came back around and said, you're giving up your right to challenge a sentence, he didn't say, oh, I misspoke before.

[00:15:25] Speaker 00:
This is the one you should listen to.

[00:15:27] Speaker 00:
And so the question, I think, for us is why, given really two sources of ambiguity, why would we enforce the appeal waiver, given that the government does have the drafting pen and the stakes of this kind of waiver?

[00:15:45] Speaker 01:
And I understand that

[00:15:48] Speaker 01:
Certainly, there were these two competing explanations of the waiver, one correct and one incorrect.

[00:15:53] Speaker 01:
And the government does not dispute that that does inject at least some sort of ambiguity, as the court notes.

[00:16:00] Speaker 01:
We would just point the court again to comparing the Kaufman case, where a very similar misstatement was made to the misstatement here.

[00:16:09] Speaker 01:
But there were actually two misstatements in Kaufman.

[00:16:12] Speaker 01:
And so the only explanation the court gave regarding the waiver

[00:16:15] Speaker 01:
provision in that case was wrong.

[00:16:17] Speaker 01:
In this case, you had the misstatement, and then you had a correct statement of the waiver.

[00:16:23] Speaker 01:
And I would agree with Your Honor that the court didn't expressly go back and correct the record and note that its prior explanation was incorrect.

[00:16:33] Speaker 01:
And in Guillen, I think this case sort of straddles between Kaufman and Guillen.

[00:16:40] Speaker 01:
We had a similar situation to the issue here where you have a misstatement and then a subsequent correct explanation and the court indeed it seems like from the record and actually your honor wrote that opinion it seems like from the record that the court did in fact indeed go back and correct its misstatement but what the government's arguing is that

[00:17:00] Speaker 01:
The reason the waiver is valid in this case is because the final word on the waiver was correct.

[00:17:05] Speaker 01:
Appellant indicated in response to the court's colloquy that he understood.

[00:17:09] Speaker 01:
And therefore, appellant, unlike defendant.

[00:17:12] Speaker 00:
But the question is, what's the object of that understanding?

[00:17:15] Speaker 00:
I understand what you said.

[00:17:16] Speaker 00:
I heard, if I think the sentence is illegal, I can appeal.

[00:17:20] Speaker 00:
OK, done.

[00:17:22] Speaker 00:
I mean, so I think we also said in Kaufman that

[00:17:29] Speaker 00:
It is up to the prosecution when the court says something that injects ambiguity.

[00:17:37] Speaker 00:
You know, you need to protect your convictions and your pleas, and that you're sitting right there.

[00:17:43] Speaker 00:
And when you hear, if you think the sentence is illegal, you can appeal.

[00:17:46] Speaker 00:
Excuse me, Your Honor, perhaps that was infelicitous.

[00:17:50] Speaker 00:
Can we have a clarifying statement for the benefit of the defendant?

[00:17:54] Speaker 00:
We did say that in Kauffman,

[00:17:57] Speaker 00:
I reiterate that today.

[00:17:59] Speaker 01:
Understood, Your Honor.

[00:18:00] Speaker 01:
And I would just note that even if the court declines to enforce the waiver, we feel that we have a very good argument in this case on the merits.

[00:18:09] Speaker 02:
Before you get to the merits, how do you read the language in the waiver that hasn't been commented on in the last and the manner in which the sentence is determined?

[00:18:20] Speaker 02:
Is that sweeping in the explanation?

[00:18:24] Speaker 02:
What do you think that means?

[00:18:25] Speaker 01:
We would read that as determining how the court, as an example, we would read that as precluding the defendant for challenging how the court calculated the guidelines in the case or appeals such as that.

[00:18:42] Speaker 01:
That's how we would read that.

[00:18:43] Speaker 02:
How about a failure to explain a sentence?

[00:18:46] Speaker 01:
That's certainly another interpretation that I think that phrase is susceptible to.

[00:18:52] Speaker 04:
With respect to the merits, I'd just like to... Excuse me one second.

[00:18:58] Speaker 04:
Is the second sentence in the appeal rights of 37, the client agrees to waive the right to appeal, et cetera, is that standard?

[00:19:10] Speaker 01:
Is it standard in your office?

[00:19:13] Speaker 01:
My understanding is, at least for plea agreements, it is standard language in exchange for the concessions that the government gives up in a plea agreement.

[00:19:22] Speaker 04:
So the standard language uses the word term, according to your interpretation.

[00:19:29] Speaker 04:
My understanding is... It uses it twice and gives it different meanings.

[00:19:35] Speaker 01:
I understand the court's point.

[00:19:37] Speaker 04:
I think... Now, unless you have an A grade from the defendant's grammar course in school, I don't know how one can say that that gives adequate notice to get a knowing waiver.

[00:19:51] Speaker 04:
It's just, it's tricky.

[00:19:54] Speaker 04:
I don't mean to say it's intended to be a trick.

[00:20:02] Speaker 04:
your understanding from reading this.

[00:20:06] Speaker 04:
It's like going to a movie in French.

[00:20:10] Speaker 04:
I think I understand a lot of it, but I may not.

[00:20:13] Speaker 04:
Sometimes I get a bit surprised later on with what happened.

[00:20:17] Speaker 01:
And I understand the court's point, and in hindsight, looking at the waiver in the context of this particular appeal, there's no question that the waiver could be written in a clearer manner to correct it.

[00:20:29] Speaker 04:
It's true in any appeal.

[00:20:30] Speaker 04:
If this is standard language, to use the same word with two different meanings adjoining clauses on the same sentence, I think you ought to strongly recommend the change.

[00:20:40] Speaker 01:
I will pass that message on to the office, Your Honor.

[00:20:44] Speaker 01:
I would also note that Section 3742, which is also specifically cited in the waiver, does discuss conditions of supervised release in that statute, and that is encompassed within the language of the waiver.

[00:20:59] Speaker 01:
Your Honor, with respect to the merits, and I know Mr. Sussman discussed the reasonableness of the condition, so unless the Court has questions about the procedural merits, I'm going to confine my comments on the merits of the substantive claim.

[00:21:11] Speaker 00:
I did have a question on the procedural side.

[00:21:16] Speaker 00:
As I understand it, this would be under plain error review.

[00:21:21] Speaker 00:
Some courts would see this kind of procedural, you know, claimed failure to fully articulate the reason for the condition to be harmless.

[00:21:31] Speaker 00:
Others would say, well, maybe not subject to that, but if it can be gleaned from the record what the reasoning was.

[00:21:38] Speaker 00:
And here the only reasoning given for this condition was stated by the prosecution.

[00:21:45] Speaker 00:
The district judge made

[00:21:47] Speaker 00:
zero comment on why this condition was being adopted.

[00:21:51] Speaker 00:
Is that zero comment enough?

[00:21:55] Speaker 01:
Well, I think the district judge, it's correct to say that the district judge did not specifically connect its reasoning

[00:22:05] Speaker 01:
that it gave for a parent's sentence to the condition of supervised release.

[00:22:10] Speaker 01:
But I think that its reasoning regarding why it imposed a parent's sentence applied equally to why it imposed the condition of supervised release.

[00:22:21] Speaker 01:
And I would also note that when the court was articulating its

[00:22:30] Speaker 01:
It's the condition of supervised release.

[00:22:32] Speaker 01:
Just moments before, there had been an extended argument between the government counsel and defense counsel regarding the propriety, the reasonableness, the over-breath or lack of over-breath of this special condition.

[00:22:44] Speaker 01:
If the court had simply said that it's imposing the special condition for the reasons stated by the government,

[00:22:51] Speaker 01:
That would have been better for the court to say that.

[00:22:53] Speaker 01:
I don't think we would have been here if it had said that.

[00:22:56] Speaker 01:
But certainly, I think based on the extended argument regarding the condition in the sentencing transcript, the PSR appellants history of committing crimes in this community, which is extensive.

[00:23:08] Speaker 01:
as well as the government's 404B motion, which was also in the record, the government's sentencing memorandum, which mentioned its request for the condition of supervised release.

[00:23:17] Speaker 01:
All of that record information provided ample basis for the court to impose this condition.

[00:23:25] Speaker 00:
So there's a record basis, and in your view, where there's a record basis and the court doesn't incorporate it by reference or refer to it at all, when we're on Plenary Review, that suffices.

[00:23:36] Speaker 01:
And I think that that is the governance position.

[00:23:40] Speaker 01:
It's also the court has held that in Sullivan, which is cited in our brief, where in that case it was a very brief description, analysis of the condition.

[00:23:50] Speaker 01:
It was on plain air review, or of the claim.

[00:23:53] Speaker 01:
It was on plain air review.

[00:23:54] Speaker 01:
But the court rejected defendant's claim in that case that the district judge failed to, quote, substantiate.

[00:24:03] Speaker 01:
the conditions of supervised release.

[00:24:05] Speaker 01:
And the court said in that case that that didn't arise to the level of plain error.

[00:24:10] Speaker 01:
So given that precedent, as well as in this case, this condition was not an off-the-wall condition that the court has to search the record for why it was imposed.

[00:24:22] Speaker 01:
As just using an analogy, if a defendant has been testing positive throughout pretrial, awaiting his

[00:24:29] Speaker 01:
awaiting his trial for narcotics, to say that a court would have to say, I'm ordering drug testing as a condition of supervised release because you've tested positive several times, I think that this condition is akin to that.

[00:24:45] Speaker 01:
It was that obvious from the record about why it was imposed.

[00:24:48] Speaker 01:
If there are no more questions, the government would ask the court to affirm the sentence in this case.

[00:24:56] Speaker 00:
I just had one question, which is,

[00:24:59] Speaker 00:
Typically, drug dealers do operate in a particular vicinity, and could you help me distinguish why this special condition, if there's anything in the record that helps us understand why this special condition is warranted in this case and it's being warranted here does not make it equally warranted in every single case?

[00:25:21] Speaker 01:
I think the answer to the court's question really lies in this particular defendant's history of committing crimes in this location since he was 18 years old.

[00:25:33] Speaker 01:
You have an attempted possession of heroin charge conviction in 1998.

[00:25:39] Speaker 01:
You have a simple assault in 1990.

[00:25:41] Speaker 01:
You have a 1997 conspiracy to distribute heroin conviction.

[00:25:44] Speaker 01:
And then you have the factual proffer in this case in which he pled guilty and admitted and acknowledged that he maintained an apartment in Potomac Gardens for the sole purpose of distributing heroin.

[00:25:56] Speaker 02:
And the court noted that there is... You can go back farther.

[00:25:59] Speaker 02:
In 1987, he conducted at least three heroin deals.

[00:26:03] Speaker 02:
And in 1990, he was convicted of assaulting police officers there.

[00:26:07] Speaker 02:
In 1994, he participated in at least 75 more heroin deals at Potomac Gardens.

[00:26:15] Speaker 02:
I mean, the judge was saying, stay out of your base of drug operations during your term of supervised release.

[00:26:23] Speaker 01:
And I agree with the court's assessment.

[00:26:26] Speaker 04:
Also, I would note that it's hardly surprising you agree with that.

[00:26:35] Speaker 01:
I would also note that the condition, it's not an absolute banishment from Potomac Gardens.

[00:26:41] Speaker 01:
It's tempered by a phrase allowing a parent to enter Potomac Gardens if he obtains the permission of his probation officer, which makes the condition reasonable, even more reasonable.

[00:26:52] Speaker 01:
And in response to the court's point in questioning Mr. Sussman, a pellet doesn't live in Potomac Gardens.

[00:26:59] Speaker 01:
He lives in Temple Hills, Maryland.

[00:27:01] Speaker 01:
And so this is not requiring a pellet to find a completely different location, move his address upon getting out of prison.

[00:27:11] Speaker 01:
This is simply requiring him to stay away from a community where he has committed crimes since he was a very young man.

[00:27:18] Speaker 01:
And it's not just for

[00:27:22] Speaker 01:
the community's benefit, it's also for a parent's benefit.

[00:27:25] Speaker 01:
And I think the Watson case that I cited in the brief makes that point.

[00:27:30] Speaker 01:
Removing a person from negative influences in their life has a positive effect on their own rehabilitation.

[00:27:38] Speaker 01:
And seeing there are no more questions, we'd ask the court to affirm the sentence in its entirety, including the stay-away condition.

[00:27:47] Speaker 02:
Thank you.

[00:27:47] Speaker 02:
Does Mr. Sussman have any time?

[00:27:50] Speaker 03:
Okay, you want to take a minute?

[00:28:01] Speaker 03:
The question of plain error is a failure to require the judge to make an explanation of his findings.

[00:28:09] Speaker 03:
Now, from the trenches, I disagree with the court's holding with regard to that, because it's just not realistic.

[00:28:14] Speaker 03:
But that's another question.

[00:28:16] Speaker 03:
But the government has the same ability.

[00:28:18] Speaker 03:
We vehemently litigated the question of whether the condition should be imposed.

[00:28:23] Speaker 03:
And the government, now the shoe is on the other foot.

[00:28:25] Speaker 03:
The judge failed to make any findings whatsoever, and the government took no action to correct that.

[00:28:31] Speaker 03:
So I don't think the government can claim that the defense is placed on a plain-error standard and not suffer any loss by their failure as well.

[00:28:42] Speaker 02:
Thank you.

[00:28:43] Speaker 02:
Okay.

[00:28:43] Speaker 02:
Mr. Sussman, you were appointed by the court to represent your client, and once again, we thank you for your assistance.