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Case number 15-3063 at L, United States of America versus James Antonio Jones, also known as Tonio Appellant.

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Mr. Axon for the appellant, Mr. Coleman for the appellee.

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Good morning.

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Good morning.

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May it please the court, counsel, Tony Axon, representing Appellants James Jones and Melvin Butler.

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The appellant's request remand for the district court to reconsider their sentence reduction motions while properly considering and weighing the 3553 factors.

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To turn to jurisdiction, this court has jurisdiction over these claims under Section 1291 because the denial of the sentence reduction motions was a final order of the court, and Section 1291 gives jurisdiction over any final orders.

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Of course we understand that if this court views the denial as an actual sentence, as some courts have described such denials, this court has ruled that jurisdiction would lie under Section 3742.

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This court does have jurisdiction under Section 3742, specifically 3742A3, because the sentences the defendants have are greater than the applicable guideline range.

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We believe that Melvin Butler's sentence is 405 months and his applicable guideline range is 262 to 327 months, and James Jones's

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The sentence is 393 months and his applicable guideline range is the same, 262 months to 327.

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We believe that the court doesn't need to look any further than section A3 for jurisdiction in this case and can decide the reasonableness of the district judge's decision to deny the sentence reduction motions.

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But even under... Does it fall, does it automatically follow that

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The challenge under 3742A3 is reviewed for, I guess, for lack of a better word, substantive unreasonableness.

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It would be reviewed for unreasonableness.

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I'm not sure that the court has to make a distinction between substantive or procedural unreasonableness, because it's still an abuse of discretion standard.

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Reasonableness is, I don't think that Booker distinguished between substantive

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Certainly, in identifying errors, distinguish between substantive and procedural unreasonableness.

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But in terms of the standard of review, I think Booker simply says the standard is whether it was unreasonable, whether there was an abuse of discretion.

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We'd further submit that even under 3742.

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What do you do with Dylan?

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Dylan, at least read in the most extreme form, seems to remove all Booker considerations from this realm.

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I would agree with the court, only in its most extreme form.

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But I think you have to read Dylan

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for the reason.

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the claims that the defendant had before the court in Dillon.

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And the defendant in Dillon wanted to be sentenced below the amended guideline range.

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He wanted essentially a plenary resentencing.

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And the only thing that Dillon said was that this is not a plenary resentencing.

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Booker doesn't apply to allow complete resentencings in the context of section 3582.

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Booker did not

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carve out or create a mandate, re-institute a mandatory regime in 3582 sections.

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It's true that it recognized that the policy statement flowing from section 3582 in section 1B1.10 of the guidelines requires

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a court to not reduce the sentence lower than the amended guideline range.

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But Dillon didn't take any steps to replace the standard review that Booker clearly established before.

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Well, the standard review wasn't an issue, right?

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Dillon spoke very broadly.

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Standard review was not an issue, and jurisdiction was not an issue.

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So I don't think Dillon speaks to jurisdiction at all.

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It's solely concerned with whether the defendant can have a complete resentencing under Section 3582, and the answer is no.

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It leaves undisturbed the standard of review for all sentencing established by Booker.

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And in fact, this court has recognized that standard of review in a case, United States v. Dorsey, that I apologize, I found last night.

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There's an irons footnote in there, and I shared it with counsel.

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But in United States v. Dorsley, in footnote four, the court said, because our conclusion that section 3742A1 provides us with jurisdiction to review any sentence for reasonableness, conflicts with circuit precedent, it has been considered and separately approved by the full court.

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But it cited Hazel, right?

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Because Hazel was the inconsistent precedent.

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Hazel was the inconsistent precedent.

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But I believe that the rationale of Hazel is a rationale adopted by courts who have viewed Dylan with this very narrow view.

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And a very narrow view with regard to jurisdiction for sentencing appeals.

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review under 3742 of sentencing appeals in terms of the standard of review that Booker set up is not narrow.

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It is very broad.

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And I think all Dorsey is doing is recognizing that.

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So it would be inconsistent to not find jurisdiction here.

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I realize I'm only talking about 3742A1, but.

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Your lead argument was 1291 should be the basis of jurisdiction, right?

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1291.

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Yes.

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Right.

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Yes.

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You'll take anything.

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Yeah.

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Either way.

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But you're in your brief, the lead argument.

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Well, on the merits, if we get to the merits, our standard review of substantive reasonableness is deferential to begin with.

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And it seems in this context that would be even underscored by the word may in the statute.

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Well, I'd respectfully disagree that the may has a greater significance in terms of the discretion the court should afford.

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But in any event, it's quite deferential, our review.

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Absolutely.

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And we've said that repeatedly.

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Judge Lamberth said we're talking about the most dangerous drug gang in the history of the city.

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Some of the top drug kingpins in the country.

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He analyzed

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the facts of the case, or at least the significance of the gang activity in this case, and made a decision.

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Other district judges might have come to a different decision, but I'm not, how can we upset that discretionary determination given our standard of review?

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Well, I'll take the most prominent problem with what Judge Lamberth did is his reliance on restitution as a basis for denying the sentence reduction.

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Well, he was looking at the effect on victims and that has to be

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you would acknowledge considering the effect of the criminal activity on victims is an appropriate thing to consider yes that would be appropriate but not under restitution right and he was very clear

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I can only take the court at its word.

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I apologize.

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But if he didn't use the label A7 but just talked about the effect on victims and we're talking about a gang that was making I guess a million dollars a week and supplying large swaths of the city with cocaine in the 1980s.

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And that's appropriate to take that into account, isn't it?

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Absolutely.

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The facts of the case are always appropriate to take into account.

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But labels do matter.

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And he didn't just mention restitution offhandedly.

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He discussed what the defendants did and the debt that they owed to the harm that

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that they had caused, how they needed to make the victims whole based on the harm that they had caused.

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And that's classic restitution.

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It's not, I mislabeled something.

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He's thinking in terms of restitution, these defendants need to make the community whole again.

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And that's improper.

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It's improper to use restitution as the reason for imprisonment.

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Did he link that to his denial of demotion in the sense that basically they won't have fulfilled their restitution obligations unless they do the entirety of the sentence that I originally imposed?

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I don't think he said it like that, but that's certainly the flavor of what he said.

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He didn't suggest that they would ever fulfill their restitution obligations, but he made clear that they owed the victims, victims of violence.

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And I'd just like to say something.

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I know that he referred to violence several times, but he did not cite any facts supporting

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violence.

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I understand that through a series of inferences, all drug crimes can relate back to violence, but they're not facts in the PSR that relate

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Mr. Butler to any violence.

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There are facts that allege that Mr. Jones was an enforcer and did things that were suggested violent acts by him.

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But whatever happened to the Kane and Curry murders?

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Do you know?

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That was a question raised in the sense of intrinsic.

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I did look.

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I never found

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Because someone walked up to them and just shot them in the car and killed them, right?

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And that was never... That was charged, but never... He's not serving a sentence for that, I know that, but...

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I was unable to... And Butler was in California, right?

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Yes.

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And involved with the Crips gang out there and getting the drugs from Colombia.

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I mean, I'm generalizing, and I understand you would want to go into the specifics, but generalizing, he's in LA, and he's the one obtaining it from Colombia.

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He's considered a broker, but there's no allegation.

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Even the gun that he received an enhancement under the guidelines for was in an apartment here in Washington, DC.

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So even Judge Ritchie said it was the conspiracy's gun.

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You could foresee that there would be a gun.

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But there's no allegation that Butler ever even had a gun.

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So you don't have to have a gun if you're responsible for it.

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I understand, I'm only talking about the district court conclusion that these two were responsible for violence without any

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citation to facts or victims or the violence that they caused in the context of talking about how they needed to make the victims of their violence whole again.

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There's just no factual basis for that.

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Why don't we give you a couple minutes for a bottle unless you have you were about to make?

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Is that OK?

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Do you have one more point you wanted to make?

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No, I'll make it.

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OK, thank you.

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Good morning, Your Honor.

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My name is Nick Coleman, and I represent the United States in this case.

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I'd like to begin by addressing the jurisdictional issue first.

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It is the government's position that it is 3742A that governs jurisdiction of appeals of these kinds of sentencing decisions, a sentencing reduction decision.

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But it's not a sentence.

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And that's a review – that's a provision for review of sentences, and the Supreme Court made clear to Dylan this is not a sentence.

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So why wouldn't we do 1291?

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Just kind of simpler.

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I think the Sixth Circuit in Bowers addressed that question and did point out that, you know, you could look at the 3582C2 decision as one of two things.

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You could narrowly focus on the order, the denial of the – an order denying the motion.

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But I think they persuasively state that the real subject of the defendant's appeal is not the narrow decision, but the fact that his sentence has been left unaltered.

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And of course, that determination itself has to be governed, according to 3582C2, by the 3553A factors, by the Sentencing Commission's policy statements.

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In other words, all bodies of law that were created by dissent in the same reform act, which also created the appellate standard that was supposed to govern these decisions.

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I think one thing that should be noted, however, is that even appellants have not cited any

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cases dealing with sentences under Section 1291 that would have permitted the kind of substantive reasonableness review that they alleged should be imposed here.

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My understanding is that in the circuits that view these under 1291, that's exactly what they do.

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Well, I think actually what's happened is that almost all of those cases, Your Honor, came well after even Booker.

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And they didn't actually cite two cases from the pre-1984 era that dealt with how 1291 permitted sentencing appeals, because it's simply not the case.

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It seems to be they took the view that the SRA and Booker radically changed the whole

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we have to draw from Dorsalei.

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I think it is absolutely the case, Your Honor, that first the SRA completely knocks out A for purposes of a standard review of a sentence.

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Right, of an initial sentence.

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But that's because, I mean, Booker, yes, changed an initial sentence.

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But that's because it had to deal with the Sixth Amendment problem of the mandatory guidelines and of judges making findings.

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Right.

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It didn't.

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Right.

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See, I guess I don't read Dorsley is doing that, Your Honor.

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I think that what Dorsley did was simply do what it thought Booker required, which is that in the context of a sentencing, that the old standards, in other words, an initial sentencing and the decision whether to depart had to be governed by new standards.

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I understand Dorsley was initial sentencing.

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Right.

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I think it has to re-examine whether dorsally applies in the 3582C2 context, because I think the problem is that if dorsally... Well, because Dillon didn't deal with the initial sentencing.

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It dealt with the 3582C2 determination.

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Council, what is the government's... I'm trying to make sure I understand your argument.

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When there's an initial sentencing, okay, not a re-sentencing or modification, just the initial sentencing, you would agree that the appellate jurisdiction is based on 3742A?

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Yes, absolutely.

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Okay, so let's suppose there's an initial sentencing and the only issue that is raised is substantive unreasonableness of the sentence.

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That's the only thing.

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Which provision of 3742A is that being brought in?

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I believe what this court has said in cases like Gardinelli, I think if I have my citation right there, is that essentially that gets worked into whether it was an error of law.

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In other words, that post-booker, because that standard has to be changed such that it permits a substantively unreasonable sentence.

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So it's an A1.

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Is an A1 problem.

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That is how this court and other courts have viewed appeals of initial sentences.

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The problem is that in Dillon, the Supreme Court said that is not a true re-sentencing or a full sentencing.

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procedure for which we have a Sixth Amendment problem.

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And so the addition of substantive reasonableness review, which the Supreme Court felt was necessary to provide as part of its fix of the Sentencing Reform Act, is unnecessary.

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It's simply not necessary in the 3582C2 context the way that it was at an initial sentencing.

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Do we even have to reach this issue given the argument that A3 applies?

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I think this court does have to, because A3 is really a provision that deals with an initial sentencing, what happens when the guidelines are applied or there's a sentence that departs from it.

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I think the best clue to that is if you look at 3742E3, which was the standard of review that Congress thought was going to be applicable in an A3 question, it was de novo review.

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essentially of whether or not you were going to give a sentence within the guidelines.

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I mean, the Supreme Court was pretty clear that that had to go in Booker in an initial sentencing.

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A3 is about initial sentences, and it's about the fact that Congress thought that the guidelines were going to be mandatory.

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except under very narrow circumstances.

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That's not the case in the 3582C2 determination.

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The whole thing's about initial sentences, which is why it's an ill fit for this circumstance, it seems to me.

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This whole thing is a triple bank shot to try to do it under 3742, and it just seems like 1291 is the

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A simple way to go.

[00:20:50] Speaker 01:
But I think even, you know, it's not a perfect fit, but I think 1291 is also not a great fit either, because you're talking about applying a pre-SRA statute to an SRA decision.

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No, no, you would apply, I mean, I assume I don't agree with that part of your argument.

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1291 is a simple fit, and then you apply the statute, which is very discretionary, and all the deferential standards we've applied to review of sentences would obviously kick in here too.

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I think part of the problem is, though, you'd have to look to how 1291 was applied to sentences before the SRA.

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And if you look at this court's decision... Why?

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Why?

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Why?

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It's a final order under 3582, which says May after considering the 3553A factors.

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And we just review the district court's decision of

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applying the 3553A factors, which is discretionary given the name, and it's an abuse of discretion, and you're going to win 999 times out of 1,000 on that, undoubtedly.

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You're still talking about a sentence, though.

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And I think the Supreme Court, before the SRA was passed, in cases like Dorzinski, was very clear.

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1291 did not apply plenary review of every question that a defendant could raise about a sentence.

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It was pretty narrowly circumscribed.

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I think there was actually a- Why do you think that the circuits that have chosen to apply 1291 in this context have jumped to the form of reasonableness review?

[00:22:23] Speaker 01:
They've done so, I think, Your Honor, because it's never really been an issue and it's never been pressed.

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What did 1291 actually do?

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And I think there's a second circuit case from 1989 cited in Appellant's supplemental brief, which is USV Cologne, which they quote as saying, the only sensible view of Section 3742A1, bear in mind, this is talking about this provision shortly after it's been enacted.

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is that it was largely intended to ensure that the appellate review previously available for claims that a sentence was in excess of the statutory maximum was based on impermissible considerations or was the result of some other demonstrable error of law remained available but not review for unreasonableness.

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1291 didn't do what

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post-booker.

[00:23:10] Speaker 06:
1291 is not the substantive standard, though.

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That's just the vehicle by which you get here.

[00:23:17] Speaker 01:
Again, though, the Supreme Court was pretty clear.

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1291, with respect to a sentence, was not a statute that permitted every kind of appeal.

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There was not jurisdiction for every kind of appeal.

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And in particular, the kind of narrow abuse of discretion review

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which appellants would like to have applied here.

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Substantive unreasonableness would not prevent it.

[00:23:36] Speaker 06:
Is this the government's position around the country, by the way, on this issue, or are you aware of that?

[00:23:42] Speaker 01:
Our position is that the best view is that 3582C2 determinations should be reviewed under 3742A.

[00:23:52] Speaker 01:
Right.

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But in the manner that

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that the Sixth Circuit has described.

[00:23:57] Speaker 06:
And that's the position around the country?

[00:24:00] Speaker 01:
That is our position.

[00:24:01] Speaker 06:
Now, again, this is not going to issue a... Our position might be just your office.

[00:24:05] Speaker 06:
Is that the position around the country?

[00:24:06] Speaker 01:
It is the department's position.

[00:24:09] Speaker 01:
Okay.

[00:24:09] Speaker 01:
Since when?

[00:24:13] Speaker 05:
Since last week.

[00:24:16] Speaker 01:
Without delving too much into it, what I can say is this.

[00:24:19] Speaker 01:
This question, as you can see from our initial brief, which we have to confess, didn't address this question at all.

[00:24:26] Speaker 01:
I think many offices have been proceeding under just the assumption, everybody seems to be reviewing this under one statute or the other, so all of these claims must be before the court.

[00:24:35] Speaker 01:
Um, obviously this court asked us to answer the question.

[00:24:39] Speaker 01:
We have looked at it.

[00:24:40] Speaker 01:
We have consulted and this is the department's answer to the question.

[00:24:44] Speaker 01:
This court post, um, in terms of whether this court has jurisdiction.

[00:24:48] Speaker 06:
This would take away all the review that's been happening happening.

[00:24:53] Speaker 06:
in most circuits, though, of these kinds of questions.

[00:24:56] Speaker 01:
Of 3582C2.

[00:24:58] Speaker 01:
Certainly a lot of claims, yes, but not all of them.

[00:25:00] Speaker 01:
I mean, we do agree with the... The substantive reasonableness claims.

[00:25:02] Speaker 01:
Yes.

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Substantive reasonableness claims are not permitted.

[00:25:06] Speaker 01:
We do agree with the balance that there's a much narrower claim about the restitution as to whether that was an error of law.

[00:25:13] Speaker 01:
In other words, can Judge Lambert impose a restitution requirement, which he then

[00:25:18] Speaker 01:
compounded the error by substituting prison for that, that's a legal claim that would be cognizable.

[00:25:24] Speaker 06:
On the merits, just a minute if I could.

[00:25:26] Speaker 06:
The government did not contest the reduction in the district court.

[00:25:32] Speaker 06:
So obviously the government made a judgment that the

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of some kind that the sentencing reduction was appropriate for these defendants.

[00:25:42] Speaker 06:
And now you're arguing the opposite.

[00:25:45] Speaker 01:
Well, we did not oppose it, but we have always recognized that the discretion, the actual decision lies with the district judge.

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And we believe that the question presented here, we are defending the fact that the judge was entitled to make this determination.

[00:26:00] Speaker 01:
He did not err under any standard.

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which everyone is opposed.

[00:26:05] Speaker 01:
He did not err in such a way that his determination was unlawful and must be redone.

[00:26:13] Speaker 01:
That, again, it's not the government's call, ultimately, as to whether a defendant gets a 35-inch seizure reduction.

[00:26:19] Speaker 06:
Well, usually you're going to oppose in many cases.

[00:26:22] Speaker 01:
It was unusual.

[00:26:23] Speaker 06:
The district judge found it unusual that the government was not opposing it.

[00:26:26] Speaker 01:
That's a policy determination that can be made from defendant to defendant.

[00:26:30] Speaker 01:
But I think, again, I mean, this, I think, is a good time to sort of note.

[00:26:35] Speaker 01:
I think in terms of all of these claims about substantive unreasonableness, as this court held in Gardinelli, the 3553A factors, which is what a judge has to apply, they're vague, open-ended, and conflicting.

[00:26:47] Speaker 01:
And different district courts may have distinct sentencing philosophies and can come to different decisions.

[00:26:53] Speaker 01:
That's also going to be true at times between district judges and the government.

[00:26:59] Speaker 01:
We certainly did not take an affirmative position before the district court that these reductions must be given.

[00:27:07] Speaker 01:
We simply did not oppose these requests.

[00:27:11] Speaker 01:
We don't think it would have been

[00:27:13] Speaker 01:
certainly not an abuse of discretion to grant them, but it was also not an abuse of discretion to deny them for the reasons that Judge Lambert gave in his lengthy and well-reasoned opinion.

[00:27:25] Speaker 04:
If I could address... If one translates the restitution talk into something slightly different.

[00:27:30] Speaker 01:
I do think that at most it's a labeling problem because all of the things I disagree with appellants who claim that those considerations were somehow unsupported or illegitimate, one could think of them as under sort of the

[00:27:48] Speaker 01:
broad term of restitution, making, you know, making whole your debt to society or to those you've harmed.

[00:27:54] Speaker 01:
But you can also think of it as retribution.

[00:27:56] Speaker 05:
In other words, just punishment as 35 53 talks about just if it's termed as as what you just said, paying your debt to society.

[00:28:07] Speaker 05:
I mean, if you ask the lay person on the street, um,

[00:28:13] Speaker 05:
they would say that that means, you know, well, you did your time, so you paid your debt to society, or, you know, you paid whatever was owed by however many years or months you served in jail or prison.

[00:28:29] Speaker 05:
And so if you look at it that way, wasn't a fair reading of what he was saying is that, you know, in order to pay your debt back to society, you need to do the whole amount of the time.

[00:28:41] Speaker 01:
I think many people would view it that way, yes, Ron.

[00:28:44] Speaker 01:
I think that's correct.

[00:28:44] Speaker 01:
And I don't think that that consideration, however you want to label it, whether you label it as restitution within the meaning of A7, or you think of it in terms of more like the factors under A2,

[00:29:00] Speaker 01:
It's perfectly legitimate.

[00:29:01] Speaker 01:
It was not an unlawful consideration.

[00:29:03] Speaker 05:
Is it legitimate under A7?

[00:29:04] Speaker 05:
I mean, how has that argument ever been endorsed, or how is that proper under the statute in A7?

[00:29:17] Speaker 01:
We think the Ninth Circuit adequately addressed this question in Wrangel when it said that, look, a judge can take into account when fashioning the sentence of imprisonment the harm that was caused to victims, which may never be made whole by any monetary means.

[00:29:34] Speaker 01:
And we think that that translates pretty well to what Judge Lamberth was saying, was that the kind of drug dealing that was engaged in here, where hundreds of kilos are being brought in, shipment by shipment, for millions and millions of dollars and then being dealt, essentially, in an open-air drug market, that that created essentially incalculable harm.

[00:29:53] Speaker 01:
I mean, he used that term, I think, to show that he's not talking about restitution orders, which try to actually tally up a number.

[00:30:02] Speaker 01:
He's talking about

[00:30:03] Speaker 01:
the impact on people, actual people in the community, and that that needs to go into the decision as to whether to grant a sentence reduction under 3582C2.

[00:30:18] Speaker 01:
And that was not an illegitimate consideration.

[00:30:21] Speaker 01:
Even if you thought that it was somehow slightly mislabeled, it's pretty clear, A, that it was a permissible consideration under at least one of the 3553A factors, and B, that Judge Lambert thought it was important enough that regardless of how he labeled it, he was not going to come to a different decision even if he were told, hey, you have to consider that under a different part of subsection A.

[00:30:49] Speaker 01:
I see my time has expired.

[00:30:50] Speaker 06:
Do you know whatever happened to the murders of Greg Kane and Ron Curry?

[00:30:54] Speaker 06:
That was one thing reading the record to me.

[00:30:56] Speaker 06:
I was wondering whatever happened to them.

[00:30:58] Speaker 01:
In terms of the murders, my understanding is that the charges against these particular defendants were dropped.

[00:31:07] Speaker 01:
And so Mr. Jones was not charged.

[00:31:10] Speaker 01:
The government dismissed the charges.

[00:31:12] Speaker 01:
Was anyone ever charged with those murders?

[00:31:14] Speaker 01:
I don't know the answer to that question, Ron.

[00:31:16] Speaker 01:
I don't know.

[00:31:18] Speaker 01:
I hear it.

[00:31:19] Speaker 01:
Yes, apparently someone was.

[00:31:21] Speaker 01:
But again, I don't have a great deal of information on that particular case.

[00:31:25] Speaker 01:
If there are no further questions, we respectfully submit that the judgment of the district court should be affirmed.

[00:31:29] Speaker 01:
Thank you.

[00:31:31] Speaker 05:
Affirmed or that we should dismiss it for lack of jurisdiction?

[00:31:36] Speaker 01:
Either way, Your Honor.

[00:31:37] Speaker 01:
Thank you.

[00:31:46] Speaker 02:
We don't take issue with the fact that the district judge has discretion.

[00:31:51] Speaker 02:
But that discretion under Dillon is limited within a certain range.

[00:31:57] Speaker 02:
But even within that range, under Dillon and under 1 v 1.10 and 3582, the district judge still has to consider the 3553 factors.

[00:32:08] Speaker 02:
And where the district court has

[00:32:12] Speaker 02:
considered an impermissible factor or a factor failed to consider a factor that it must, there's an error there.

[00:32:24] Speaker 02:
And that's all we're saying.

[00:32:26] Speaker 02:
We know with restitution there was an error.

[00:32:30] Speaker 02:
And while harm is something that all courts can consider, I still submit that there

[00:32:41] Speaker 02:
is not a factual basis for the degree of harm that the court was attributing to the defendants in this case.

[00:32:52] Speaker 02:
Ultimately,

[00:32:57] Speaker 06:
Well, the district judge said that the organization enabled drug use and addiction on a scale that up until that point was unprecedented and largely unimaginable in this city.

[00:33:10] Speaker 06:
And is that a proper thing for the district court to have looked at?

[00:33:15] Speaker 06:
put aside the label, was that sentence a proper sentence?

[00:33:19] Speaker 02:
That would be something proper for district court to look at, except there's nothing in the record that the district court cites and nothing that I found from which the district court could draw that conclusion.

[00:33:30] Speaker 02:
Could we in general draw conclusions that drugs are bad and drug dealing is bad?

[00:33:34] Speaker 06:
It was the scale.

[00:33:35] Speaker 06:
It was the scale.

[00:33:36] Speaker 06:
This was the biggest

[00:33:38] Speaker 02:
That's what the district court said.

[00:33:39] Speaker 02:
I don't know what the basis for that is.

[00:33:42] Speaker 02:
There's no basis in the record for that extreme conclusion.

[00:33:47] Speaker 02:
I know that I have, I know if you want my own anecdotal view, no it was not.

[00:33:55] Speaker 02:
It may have been seen very important and big at the time, but in hindsight, now that we, as we look backwards... Well, he says that he does say the Kevin Gray organization might have been worse, the district judge says.

[00:34:09] Speaker 02:
I would agree.

[00:34:10] Speaker 02:
And I don't think it's close.

[00:34:11] Speaker 02:
I mean, Kevin Gray's organization had 31 more murders.

[00:34:15] Speaker 02:
There's no murder charged in this conspiracy.

[00:34:19] Speaker 02:
I understand, or I shouldn't say charged.

[00:34:23] Speaker 02:
I will focus only on these two defendants.

[00:34:28] Speaker 02:
Neither one is certainly not Melvin Butler.

[00:34:33] Speaker 02:
There's not even an allegation that Melvin Butler committed an act of violence.

[00:34:40] Speaker 02:
So a lot of the conclusions, and I'm not disputing it.

[00:34:50] Speaker 06:
Well, he doesn't claim that there was the violence, but the district judge said importing and distributing illegal drugs on that scale has an immense and devastating impact.

[00:35:00] Speaker 06:
And these quantities can cripple neighborhoods, destabilize cities.

[00:35:04] Speaker 06:
The victims may be unknown and diffuse, but they are real.

[00:35:07] Speaker 02:
All of that could be true.

[00:35:10] Speaker 02:
I understand that district courts can draw those inferences, but what Booker did was individualized sentencing.

[00:35:19] Speaker 02:
So for the district court to draw those conclusions not based in facts or based on the PSRs or based on the record in this case,

[00:35:28] Speaker 02:
was improper.

[00:35:30] Speaker 02:
Separate aside from using those conclusions to justify the restitution that the defendants owed in this case, the more legal question as opposed to the more factual question, the factual question is, was there evidence that they

[00:35:44] Speaker 06:
I don't want to belabor it, but what the district court did was say these two individuals were high-level players in an organization that was making a million dollars a week and distributing cocaine throughout DC and causing

[00:36:02] Speaker 06:
I think what the district court characterized as harm.

[00:36:05] Speaker 06:
It was the individualized consideration was their roles in this organization.

[00:36:12] Speaker 06:
Then it was connected to what did this organization do and then that was connected to what harm was caused by all the drugs that were distributed in the 1980s by this organization.

[00:36:24] Speaker 06:
That seems like a

[00:36:27] Speaker 06:
You know, this is a written opinion at some length by the district court and seems.

[00:36:32] Speaker 02:
I understand all that.

[00:36:33] Speaker 02:
I just give you an alternate view that this could have been a transfer point.

[00:36:39] Speaker 02:
We know that we know all the district court has cited in terms of the record and facts is that there were a big quantity of drugs.

[00:36:47] Speaker 02:
The district court doesn't cite any victim, any addict, any like a raised community.

[00:36:55] Speaker 02:
And I understand those are logical inferences from drug dealing.

[00:36:58] Speaker 02:
But again, Booker requires individualized sentencing.

[00:37:04] Speaker 04:
It requires those facts to- You're taking individualized to an extraordinary length.

[00:37:10] Speaker 04:
You seem to want identification of individual victims, losers, as a result of that.

[00:37:20] Speaker 04:
But surely it's never meant that.

[00:37:23] Speaker 02:
Ideally, yes, but that's not what I'm saying here, that there would have to be.

[00:37:32] Speaker 02:
What I'm saying here is that there is none.

[00:37:35] Speaker 02:
The PSR does not make these claims.

[00:37:38] Speaker 02:
The PSR does not contain facts that would support these claims.

[00:37:44] Speaker 02:
Well, these are entrances and assumptions.

[00:37:46] Speaker 06:
They were originally sentenced by Judge Ritchie to life, each of them, right?

[00:37:50] Speaker 02:
That's correct.

[00:37:52] Speaker 02:
But each sentence was also reduced by Judge Ritchie.

[00:37:55] Speaker 02:
And that's another issue.

[00:38:00] Speaker 02:
I mean, it brings up another issue that Booker was concerned that district judges should have this discretion because they sat through trial and got to know the defendants and understood the dynamics of the crime.

[00:38:13] Speaker 02:
And this is a judge that did not.

[00:38:16] Speaker 02:
So I think this court should look at these conclusions that are not based on specific facts, whether they're victims' names or victims in general or allegations of actual acts committed by the defendants.

[00:38:36] Speaker 02:
should look at those conclusions with a little more scrutiny than if the district judge had sat on this case.

[00:38:45] Speaker 02:
Or there was any indication that the district judge had read the trial transcripts to better understand this case.

[00:38:54] Speaker 02:
At the end of it all, the district court committed legal errors and factual errors.

[00:39:04] Speaker 02:
to include in its calculus of whether to deny this sentence something that was improper.

[00:39:13] Speaker 02:
And we know restitution was improper.

[00:39:15] Speaker 02:
And how that weight against other factors is impossible to determine.

[00:39:20] Speaker 02:
That's why we're asking for a remand.

[00:39:22] Speaker 02:
There's some judgment calls that on their face

[00:39:27] Speaker 02:
will inevitably lead to an unreasonable sentence.

[00:39:30] Speaker 02:
The government would like to put me in this box that I'm asking this court to find that a sentence of this amount is substantively unreasonable.

[00:39:38] Speaker 02:
No, I'm saying there are some impermissible factors that once considered lead to a substantively unreasonable sentence.

[00:39:48] Speaker 02:
This court doesn't have to say the sentence was too long.

[00:39:50] Speaker 02:
That is not our argument.

[00:39:51] Speaker 02:
I hope I made that clear in... Yes.

[00:39:54] Speaker 06:
Yes, thank you very much to both sides for the well-argued case, and thank you in particular for the supplemental briefs, which were very helpful from both sides.

[00:40:03] Speaker 06:
The case is submitted.