[00:00:01] Speaker 00: Case number 16-30 Tang, United States of America versus Lowell Brian Lamont, also known as Brian, also known as B Big, also known as B Appellant. [00:00:11] Speaker 00: Mr. Axum for the Appellant, Ms. [00:00:13] Speaker 00: Kudla for the Appellee. [00:00:17] Speaker 02: May it please the Court, Council, and Tony Axum for representing Lowell Lamont. [00:00:22] Speaker 02: I'd like to reserve two minutes for rebuttal. [00:00:25] Speaker 02: The District Court abused its discretion by refusing to retroactively reduce Mr. Lamont's sentence pursuant to Amendment 782 of the Sentencing Guidelines. [00:00:36] Speaker 02: That decision was substantively unreasonable because the remaining sentence that Mr. Lamont is serving right now was greater than necessary under the factors of 3553A. [00:00:52] Speaker 02: Specifically, Mr. Lamont's original sentence was based on a guideline range that the Sentencing Commission retroactively reduced. [00:01:03] Speaker 02: the district court acknowledged that it was, in fact, based on that guideline range. [00:01:08] Speaker 02: And that was a driving factor in the parties arriving at the 180-month sentence that the district court imposed. [00:01:20] Speaker 02: That was based on a guideline range of 168 to 210 months. [00:01:25] Speaker 02: With the reduction, the guideline range went down to 135 to 168 months. [00:01:33] Speaker 02: That being such a predominant factor in the sentence that was imposed, it was an abuse of discretion for the district judge not to reduce the sentence when that predominant factor was reduced by the Sentencing Commission. [00:01:52] Speaker 04: Well, what specifically was the district court's error? [00:01:55] Speaker 04: What specifically did he abuse his discretion? [00:01:59] Speaker 04: Which aspect of his decision? [00:02:02] Speaker 04: You say in your brief at one point that the district court failed to consider defendants' good behavior in prison, but the judge did expressly note that factor and simply said that it wasn't sufficient to deter future misconduct, misbehavior. [00:02:25] Speaker 04: So, I mean, there's no abuse of discretion there, is there? [00:02:29] Speaker 02: No, there's never been an abuse of discretion when the judge has adequately considered something. [00:02:34] Speaker 04: OK, so where is it in this case? [00:02:36] Speaker 02: But I'm talking about a substantive unreasonableness. [00:02:42] Speaker 04: OK. [00:02:43] Speaker 02: And really substantive unreasonableness comes down to whether the sentence, the ultimate sentence, is too high or too low. [00:02:53] Speaker 02: And the only way to determine [00:02:57] Speaker 02: I suppose it's difficult to determine whether a sentence is too high or too low abstractly. [00:03:02] Speaker 02: It's always based on reasons. [00:03:03] Speaker 02: It's always based on the background and history and characteristics of the defendant. [00:03:08] Speaker 02: And in this case, I'm simply saying that the ultimate sentence, the failure to reduce the sentence, it was greater than necessary because the predominant factor driving that original sentence was the sentencing guidelines. [00:03:24] Speaker 02: I'm not saying that the district court committed a procedural error, although procedural errors could lead to a substantively unreasonable sentence. [00:03:34] Speaker 02: And although the district court's failure to discuss aspects of a defendant's background may reveal that the district court did not adequately consider something, but I am simply arguing in this case [00:03:51] Speaker 02: that the sentence that remained intact was substantively unreasonable. [00:03:58] Speaker 04: But why? [00:04:00] Speaker 04: That's my question. [00:04:04] Speaker 02: Because the guideline range that drove that original sentence had been reduced. [00:04:09] Speaker 04: So is it your view that all sentences that are covered by this statute, the district court has to reduce them? [00:04:17] Speaker 02: It's not my view that the district court has to reduce them. [00:04:21] Speaker 04: I didn't think so. [00:04:23] Speaker 04: So the district court has the discretion not to reduce a sentence that's covered by this statute, correct? [00:04:33] Speaker 02: Section 3582, yes. [00:04:36] Speaker 04: So that's my question. [00:04:38] Speaker 04: Once you acknowledge that the district court has discretion not to reduce the sentence, tell us, if you could, what was the district court's, what error did the district court make here? [00:04:50] Speaker 02: I understand that this court has held that it will be the rare case that a sentence is either so high or so low that this court will reverse it. [00:04:59] Speaker 02: But I believe that the argument is always available to the defense that the sentence is too high. [00:05:05] Speaker 02: And the only – I do cite the guidelines themselves being reduced and the disparity that the – the sentencing disparities that the guidelines were created to eliminate. [00:05:20] Speaker 03: I think those two arguments go hand in hand. [00:05:29] Speaker 01: as to the background and nature of this particular defendant as compared to the younger, less experienced criminals who might be sentenced under? [00:05:42] Speaker 02: I think that's an argument that could be made. [00:05:44] Speaker 02: I don't think that this court actually said disparity. [00:05:48] Speaker 01: You may not have used the word disparity, but the record would support a finding on our part that he had not abused discretion by ignoring [00:06:04] Speaker 02: I couldn't argue with that conclusion. [00:06:10] Speaker 02: He did not focus on disparity. [00:06:12] Speaker 02: I'm pleased that the district court did look at the individual characteristics of Mr. Lamont in this case. [00:06:21] Speaker 02: And obviously, any time a court looks at the individual characteristics, the next step, the inference that can be drawn from that is that the district court [00:06:36] Speaker 02: was not continuing a disparity because it was individualizing this defendant. [00:06:42] Speaker 02: I am, again, simply arguing that the guidelines were reduced here, the guidelines seek to eliminate disparities, and the ultimate sentence in this case was greater than necessary. [00:07:01] Speaker 02: If the court doesn't have any other questions, I'd submit on the pleadings. [00:07:15] Speaker 05: May it please the court and council, Danielle Kudlow on behalf of the United States. [00:07:20] Speaker 05: The district court in this case believed both at the time of the original sentencing in 2006 and 10 years later at the reduction hearing in 2016 that the seriousness of the offense, which involved a large-scale drug conspiracy throughout DC, Virginia, and Maryland, and appellant's criminal history warranted 180 months incarceration. [00:07:45] Speaker 05: And we see this first at the original sentencing in January 2006, where Judge Walton specifically noted, justifiably, with your criminal history, I could give you a much greater sentence. [00:07:57] Speaker 05: But in this case, the United States has determined what this sentence should be, and I will reluctantly go along with that. [00:08:03] Speaker 05: Ten years later, at the reduction hearing, Judge Walton then noted, I remember this case specifically, and I remember the seriousness of the offense. [00:08:12] Speaker 05: And he goes on to state, had there not been an 11-seat plea in this case, I would have given a significant sentence, probably much more significant than 180 months. [00:08:22] Speaker 05: And he justified that by the 3553A factors, which he was required to do under 3582C2. [00:08:30] Speaker 05: And he looked there at more than five kilograms of cocaine being distributed throughout DC. [00:08:36] Speaker 05: The fact that Appellant just wasn't one of the co-conspirators, he in fact was the leader of this conspiracy. [00:08:44] Speaker 05: And in addition, when they executed the search warrant at Appellant's home, it related to this case, they found $60,000 in cash, a loaded weapon, and a loaded magazine. [00:08:54] Speaker 05: And then, as Your Honors pointed out, he particularly went to Appellant's criminal history, and he noted that was the most troubling concern for recidivism. [00:09:04] Speaker 05: Appellant had two prior convictions for distribution before the instant offense, one at 24 years of age and the other one at 29. [00:09:12] Speaker 05: He had been incarcerated at 29 and then was on a period of supervised release when he committed and was convicted of the [00:09:19] Speaker 05: instant offense at 39 years old and Judge Walton found that age particularly concerning and he looked at it and under individualized consideration said we treat older offenders differently than youthful indiscretions and the fact for one reason or another appellant has chosen a life of crime and it was in [00:09:38] Speaker 05: Judge Walton's discretion under the 3553A factors, A1 and A2 in particular, that this background suggested that he would likely to commit a new offense. [00:09:50] Speaker 05: And for that reason, he denied the reduction motion. [00:09:54] Speaker 05: But as Your Honors pointed out, the arguments that were put forth, Judge Walton really focused on eligibility, [00:10:01] Speaker 05: But after the eligibility, defense counsel at the sentencing motion said, you know, this is a changed man. [00:10:07] Speaker 05: She brought up appellant's background for his post-incarceration conduct. [00:10:13] Speaker 05: And Judge Walton did consider that and addressed it in his order. [00:10:17] Speaker 05: He specifically said, as noted, although he has reformed in prison, it doesn't offset the weight that we have to the seriousness of the offense. [00:10:27] Speaker 05: In line of that, there's nothing on this record that fails to show that Judge Walton did not recognize his statutory responsibility to consider the 3553A factors, and he gave them due deference for the factors that were emphasized before defense counsel. [00:10:44] Speaker 05: There's no requirement under the case law that he had to address numerically every 3553A factor, and it is very clear that this is a discretionary grant, not a constitutional mandate. [00:10:57] Speaker 04: You want to say anything about our jurisdiction to hear this case? [00:11:00] Speaker 05: Your Honor, the government's position about jurisdiction is that this claim falls under 3742A. [00:11:07] Speaker 05: And under 3742A, substantive unreasonableness claims would not be allowed to be heard by this court pre-Booker. [00:11:15] Speaker 05: And that is what we believe applies. [00:11:17] Speaker 04: What do you think about Supreme Court's decision in Dillon versus United States? [00:11:22] Speaker 05: Dylan supports this position. [00:11:25] Speaker 05: It does, Your Honor. [00:11:26] Speaker 05: Because as United States versus Bauer had emphasized that, Dylan talked about a limited adjustment. [00:11:33] Speaker 05: It is not a full resentencing. [00:11:35] Speaker 05: However, what defendant is appealing is not the denial of the motion itself, but the resulting sentence that is imposed. [00:11:43] Speaker 05: And we believe 3742 is the appropriate jurisdictional vehicle to review these claims. [00:11:49] Speaker 05: because 3582C2 was enacted under the same statute as 3742 and also it references the guidelines under 3553. [00:11:59] Speaker 05: For that reason we believe that 3742A is the appropriate vehicle for jurisdiction. [00:12:08] Speaker 05: Now the scope of appellate review would be limited to violations of law [00:12:13] Speaker 05: or a clearly erroneous fact that the disher court had relied upon. [00:12:19] Speaker 05: In this case, as appellants made clear, his arguments rely on substantively unreasonableness claims. [00:12:25] Speaker 05: The idea that the disher court did not weigh these claims properly. [00:12:30] Speaker 05: Those are the type of claims that would not be cognizable under appellate review. [00:12:35] Speaker 04: So in this case, the government's position is we have no jurisdiction to hear this appeal. [00:12:40] Speaker 05: You have jurisdiction to hear the appeal. [00:12:42] Speaker 05: However, the claims that appellant has raised do not fall under the scope of the jurisdiction to review. [00:12:49] Speaker 05: So, yes. [00:12:52] Speaker ?: Okay. [00:12:52] Speaker ?: Anything else? [00:12:52] Speaker 04: No. [00:12:53] Speaker 04: Okay, thank you. [00:12:54] Speaker 05: Thank you, Your Honor. [00:12:56] Speaker 04: Council, any time left? [00:12:57] Speaker 05: Go ahead. [00:13:06] Speaker 02: I understand that the government submitted a 28-J letter to alert the court to jurisdiction in this matter, but the government has not challenged jurisdiction in this case. [00:13:19] Speaker 02: We take a different view. [00:13:21] Speaker 02: We believe that Dillon would support jurisdiction, Dillon – but even before [00:13:30] Speaker 02: looking at jurisdiction under Dillon. [00:13:32] Speaker 02: Jurisdiction exists under this case because the district court's denial of the 3582 motion was a final order under section 1291. [00:13:41] Speaker 02: And this court has jurisdiction to review any final order. [00:13:47] Speaker 02: I'm not sure what to make of the government's argument that this court has jurisdiction, but the claims that we can challenge under that jurisdiction are limited. [00:14:01] Speaker 02: I guess I'm also unclear as to how this court would go back to a pre-Booker era of jurisdiction for some cases and the post-Booker era. [00:14:18] Speaker 02: Booker was excised the section of 3752 and replaced the standard of review with the standard that I'm advocating here, the reasonableness review. [00:14:31] Speaker 01: A little hard to see where the government's drawing the line. [00:14:38] Speaker 03: What do you understand their line to be if you understand? [00:14:41] Speaker 03: I'm actually at a loss. [00:14:46] Speaker 03: I should have asked her, I guess. [00:14:48] Speaker 04: Do you want to have her come back? [00:14:49] Speaker 04: No. [00:14:50] Speaker 04: Okay. [00:14:52] Speaker 03: We submit on our. [00:14:53] Speaker 03: Okay. [00:14:53] Speaker 04: Thank you. [00:14:54] Speaker 04: Cases submitted. [00:14:55] Speaker 04: Please call the next case.