[00:00:00] Speaker 00:
Case number 15-3006, United States of America versus Michael Palmer, also known as Tony, also known as Not, also known as James, appellant.

[00:00:09] Speaker 00:
Miss Rowland for the appellant, Mr. Coleman for the appellee.

[00:00:16] Speaker 04:
Good morning.

[00:00:17] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
The Fair Sentencing Act is not a windfall for Mr. Palmer.

[00:00:24] Speaker 04:
It's Congress's judgment that a term of life imprisonment for 1,500 grams of crack is unfair and too long.

[00:00:33] Speaker 04:
The Supreme Court drew a line in Dorsey versus United States, and Mr. Palmer is on the side of the line that entitles him to an FSA sentence.

[00:00:42] Speaker 05:
You would agree.

[00:00:42] Speaker 05:
I know your brief says re-sentencing, but Dorsey didn't address that.

[00:00:47] Speaker 05:
Is that correct?

[00:00:48] Speaker 04:
No, Dorsey did not address re-sentencing.

[00:00:54] Speaker 04:
It addressed defendants who were being sentenced post-act for pre-act conduct.

[00:01:00] Speaker 05:
So that's the question we have to decide, right?

[00:01:04] Speaker 05:
In other words, whether under 2255, when relief is granted, the judgment must be set aside

[00:01:18] Speaker 05:
And what does that mean for purposes of the Fair Sentencing Act?

[00:01:23] Speaker 04:
Well, most certainly the judgment does have to be set aside.

[00:01:27] Speaker 04:
That's what 2255 says, that if an infirmity is found.

[00:01:32] Speaker 04:
I know.

[00:01:33] Speaker 05:
I'm trying to emphasize that as a significant point.

[00:01:38] Speaker 05:
And I don't know which way that cuts from the point of view of your client's interest.

[00:01:42] Speaker 05:
But once the district court decides to grant

[00:01:47] Speaker 05:
a 2255 motion for any reason, it's required to set aside the judgment.

[00:01:56] Speaker 05:
And then it has four options.

[00:01:58] Speaker 05:
And as I read the government's brief, it's saying, well, if it's a resentencing, you get the Fair Sentencing Act relief.

[00:02:07] Speaker 05:
If it's a correction, you don't.

[00:02:11] Speaker 05:
And so you say, that's just labeling.

[00:02:15] Speaker 05:
Yes.

[00:02:16] Speaker 05:
So now, does your argument mean that those two words in 2255 are duplicative?

[00:02:28] Speaker 05:
That one is rendered superfluous?

[00:02:30] Speaker 04:
I don't think that we need to make that argument.

[00:02:34] Speaker 05:
Well, what I'm trying to understand here is the government's brief is taking the position that the district court was very careful

[00:02:42] Speaker 05:
not to grant your client the resentencing hearing he wanted.

[00:02:47] Speaker 05:
Yes.

[00:02:49] Speaker 05:
And as I understand the government's brief, and it can correct me, it says, therefore, all that occurred here was a correction.

[00:02:58] Speaker 05:
And a correction doesn't get you where you and your client need to be.

[00:03:02] Speaker 05:
Is that your understanding?

[00:03:05] Speaker 04:
Yes.

[00:03:07] Speaker 04:
The Supreme Court's decision in Dorsey

[00:03:10] Speaker 04:
defeats that argument.

[00:03:12] Speaker 04:
The analysis in Dorsey about what Congress was doing and the analysis about the disparities that would be created by not allowing pre-act offenders who are being sentenced post-act, the benefit of the FSA applies equally here.

[00:03:35] Speaker 05:
So you raised Dorsey to mean

[00:03:38] Speaker 03:
I was just going to follow up on your question, so go ahead.

[00:03:42] Speaker 05:
Okay.

[00:03:42] Speaker 05:
You read Dorsey to mean that any time a defendant's sentence or the judgment of conviction is set aside, what necessarily happens

[00:03:59] Speaker 05:
is the type of sentencing that Dorsey was addressing.

[00:04:05] Speaker 04:
Yes, that is our argument.

[00:04:07] Speaker 04:
That when the judgment has been set aside and sentence is going to be imposed on the remaining counts of conviction,

[00:04:18] Speaker 04:
the judge must apply current law that's been made retroactive.

[00:04:24] Speaker 02:
Isn't there some overlap between 2255 and Rule 35 in the language of correction?

[00:04:32] Speaker 02:
One of the things a judge is empowered to do under 2255 is to perform a correction, right?

[00:04:39] Speaker 02:
And that's one of the things.

[00:04:41] Speaker 04:
To set aside the judgment and correct it, right?

[00:04:45] Speaker 02:
That's one of the categories.

[00:04:46] Speaker 04:
No, rule 35 doesn't say that.

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

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

[00:04:48] Speaker 04:
I was thinking of 2255.

[00:04:51] Speaker 04:
Yeah, 2255.

[00:04:52] Speaker 02:
And in that way, isn't there some overlap between what's happening in 35?

[00:04:56] Speaker 04:
I think the kind of correction that they're talking about is the example that we gave in our brief, when the judgment mistakenly says you're convicted of 50 grams of crack, when in fact, you were convicted of five grams of crack.

[00:05:10] Speaker 05:
So rule 35 refers to arithmetic

[00:05:15] Speaker 05:
technical or other clear error.

[00:05:20] Speaker 05:
And I've been trying to find out what Congress had in mind when it used correction in 2255.

[00:05:28] Speaker 05:
And you don't cite the Morris case until your reply brief, so I don't know if the government's prepared to address it, but... I think that it is possible that

[00:05:43] Speaker 04:
If there had not been intervening changes in the law that changed the penalties for the remaining counts, perhaps a court could simply reissue what it would call a corrected judgment.

[00:05:58] Speaker 04:
But that's not the case.

[00:05:59] Speaker 02:
In 1994, when Congress revisited this, they called it a correction.

[00:06:03] Speaker 02:
They called it correction of erroneous cross-references.

[00:06:10] Speaker 02:
So at least that's what they had in mind that they were doing.

[00:06:15] Speaker 02:
They viewed the Scrivener's error argument, although you don't think it was a Scrivener's error, but they viewed that as a problem that needed to be fixed by a correction of erroneous cross-references.

[00:06:26] Speaker 02:
That doesn't sound like we've said anything here.

[00:06:29] Speaker 04:
Well, I mean, certainly there was no Scrivener's error type technical problem here to be corrected.

[00:06:36] Speaker 04:
This was a substantive,

[00:06:41] Speaker 04:
sentence where the law had changed.

[00:06:45] Speaker 04:
So it wasn't appropriate for a correction.

[00:06:52] Speaker 04:
Dorsey says that the FSA applies to pre-act offenders being sentenced post-act.

[00:07:00] Speaker 02:
And all of the court's sentencing.

[00:07:02] Speaker 02:
The district court certainly didn't think it was involved in re-sentencing.

[00:07:07] Speaker 02:
I mean, it seemed almost ministerial, right?

[00:07:10] Speaker 02:
They were just locking off some sentences that were no longer applied.

[00:07:16] Speaker 02:
And the language of the district court, the rest of the sentences

[00:07:21] Speaker 02:
from petitioners' original judgment of conviction remain as announced.

[00:07:27] Speaker 02:
There's no recalculation here.

[00:07:30] Speaker 02:
You weren't untying this knot that the second suit brought to you.

[00:07:33] Speaker 04:
And that is the error.

[00:07:36] Speaker 04:
We asked for, we asked twice in the 2255 for

[00:07:43] Speaker 04:
a resentencing hearing at which we could make arguments about the appropriate sentence.

[00:07:48] Speaker 05:
So the word resentencing, as defined in Black's law dictionary, which is as far as I've gotten so far, says it means a new or revised sentence.

[00:08:04] Speaker 05:
So the district court said, your client's going to face life as he

[00:08:11] Speaker 05:
faced under the original sentence, so there's no change there.

[00:08:16] Speaker 05:
So do you have to come under the rubric of this is at least a revised sentence?

[00:08:24] Speaker 05:
I mean, what I'm trying to understand is what Congress had in mind here in terms of if you're going to get 2255 relief, then Congress instructs the judgment must be vacated.

[00:08:37] Speaker 05:
So there's nothing pending against the defendant until the district court does something.

[00:08:42] Speaker 05:
Yes.

[00:08:44] Speaker 05:
And it seems to me that's different from Rule 35A's notion of correction.

[00:08:49] Speaker 05:
But I may be wrong.

[00:08:51] Speaker 04:
Well, it is different in the sense that the judgment is vacated entirely.

[00:08:57] Speaker 05:
If I could just briefly... Could I ask you one other question about your interpretation of Dorsey?

[00:09:09] Speaker 05:
Another way to read Dorsey is that it was line drawing.

[00:09:16] Speaker 05:
But it understood that even with the line it was drawing, there were still going to be cases that involve the types of discrepancy in sentencing that Congress was concerned about.

[00:09:32] Speaker 04:
Right.

[00:09:32] Speaker 04:
And what they said was there will still be some disparities.

[00:09:36] Speaker 04:
Some defendants aren't going to have the opportunity, like in this kind of case, some defendants are not back before the district court, and so they don't have the opportunity to make these arguments and get an FSA sentencing.

[00:09:49] Speaker 04:
But they decided that not applying the rule that they applied, not making it retroactive, would

[00:10:01] Speaker 04:
result in worse disparities.

[00:10:03] Speaker 04:
And that's certainly the case here.

[00:10:05] Speaker 04:
He's back before the court.

[00:10:09] Speaker 04:
The district court might sentence someone five minutes later whose pre-act conduct, whose

[00:10:18] Speaker 04:
Conduct was pre-August 3rd, 2010, but who would get the benefit of the federal sentencing now?

[00:10:24] Speaker 02:
So your argument is even if we just thought it was a correction, it still gets the benefit?

[00:10:29] Speaker 03:
Yes.

[00:10:30] Speaker 03:
Yes.

[00:10:30] Speaker 03:
I guess I'm still not sure how we get from Dorsey's view that initial sentencing, which falls after the effective date, would get you the benefit of the FSA.

[00:10:44] Speaker 03:
to the idea that any part of a sentence is vacated, you would have to give the defendant the benefit of that.

[00:10:59] Speaker 04:
Well, for two reasons.

[00:11:00] Speaker 04:
One is that there's really no difference between the defendant in Mr. Palmer's circumstance and the defendant who's being sentenced for the first time.

[00:11:14] Speaker 04:
Sorry, I lost my train of thought.

[00:11:17] Speaker 03:
You said there's really no difference, but I mean, it does look different, at least to me.

[00:11:23] Speaker 03:
I mean, someone who is being sentenced for the first time, it suggests that the pre-act conduct probably occurred in reasonable proximity to the sentencing, whereas once we get to re-sentencing, we could be talking about conduct that was 30 years earlier.

[00:11:43] Speaker 04:
Right, but I don't think that that makes any difference when the conduct occurred, as long as we're talking about pre-act conduct.

[00:11:54] Speaker 04:
And the other thing I wanted to point out is that the entire sentence was vacated.

[00:12:01] Speaker 04:
There was no judgment.

[00:12:04] Speaker 04:
So all of the sentences

[00:12:07] Speaker 02:
That's a rather technical matter, though, isn't it?

[00:12:11] Speaker 02:
I mean, that the entire sentence is vacated.

[00:12:13] Speaker 02:
The effect of this was that the original parts of the sentence were left intact and weren't touched, but Lambert just lopped off some that were no longer viable.

[00:12:25] Speaker 04:
Right, but when you're commanded to vacate the judgment, everything in that judgment is vacated, and now you have to reimpose sentence

[00:12:36] Speaker 04:
based on what's left.

[00:12:37] Speaker 04:
And here, what was left had different penalties.

[00:12:42] Speaker 02:
Now, Dorsey, I understand, I think I understand your argument about Dorsey.

[00:12:45] Speaker 02:
I mean, Dorsey obviously didn't have this scenario in front of him.

[00:12:49] Speaker 02:
This would be an extension of a principal, you say, under Bridge.

[00:12:53] Speaker 02:
Dorsey, and it seems to me that the thing we need to wrestle with is, does this mean that every time

[00:12:59] Speaker 02:
a sentence is going to be corrected, that the FSA comes into play.

[00:13:04] Speaker 02:
And I hear your argument saying, yes, that's what Congress intended.

[00:13:08] Speaker 02:
Yes.

[00:13:08] Speaker 02:
Even for what may appear to be sort of ministerial corrections that don't involve the judge making every

[00:13:17] Speaker 02:
So you reject the Second Circuit language of the knot, the idea that if they untie the knot of sentencing, then you get the benefit of the FSA.

[00:13:27] Speaker 02:
But if you leave the knot alone, that metaphor doesn't resonate with you, I think.

[00:13:35] Speaker 04:
The district court, when it's issuing a new judgment, reimposing sentence, it has to, you know, it's gonna lop off some and then it has to look at what's remaining and determine the appropriate sentence for that.

[00:13:50] Speaker 04:
And it might, in some circumstances, it might cause, and here it was a mandatory minimum, so the judge didn't have a choice if he thought the FSA didn't apply, but in other circumstances, the judge might

[00:14:04] Speaker 04:
you know, sort of look at what's locked off and look at what's left and decide that there might be, you know, that the sentence on the remaining count might need to be different.

[00:14:15] Speaker 02:
It changes things.

[00:14:16] Speaker 02:
Your point is it changes things.

[00:14:17] Speaker 02:
It's a new... Yes.

[00:14:18] Speaker 03:
Yes.

[00:14:19] Speaker 03:
Okay.

[00:14:20] Speaker 03:
There's an older case out of the, I guess it's the Fourth Circuit, that sort of talks about, you know, what's the difference under 2255 between just

[00:14:31] Speaker 03:
correcting something and re-sentencing.

[00:14:34] Speaker 03:
There the court draws a line by saying, well, re-sentencing means looking at what's new, having it hearing, doing something that goes far beyond just what Judge Lamberth did here.

[00:14:54] Speaker 03:
I mean that seems to be a line that would make it much easier for us to figure out when re-sentencing has occurred versus something else under 2255.

[00:15:04] Speaker 03:
And so is your view that it's just whenever you touch the sentence in some way that is not a purely technical correction or maybe you don't even accept that?

[00:15:19] Speaker 04:
Yes, that's my view.

[00:15:21] Speaker 04:
And my view is that it's a bit circular to say, he didn't hold a hearing, and he just said, I'm lopping these off, and everything remains the same.

[00:15:31] Speaker 04:
Therefore, it was merely a corrected sentence when, in fact, it needed to be more than that.

[00:15:39] Speaker 04:
It needed to be looking at the remaining sentences to determine, under current law, what those sentences should be.

[00:15:50] Speaker 04:
Is that clear?

[00:15:50] Speaker 04:
I don't think that saying what he did was so minimal that it must be a correction.

[00:15:57] Speaker 03:
Well, it should have been more than that.

[00:15:59] Speaker 03:
I think the problem that we're having is that it seems like we're going in a circle either way we do it.

[00:16:04] Speaker 03:
But I understand your answer.

[00:16:07] Speaker 04:
I do think that under Dorsey, and as we've cited cases in our brief, and as far as I can tell,

[00:16:14] Speaker 04:
There's been no court, and the government cites no case, that says that a defendant, in our circumstance, after 2255,

[00:16:25] Speaker 04:
where the judgment has been vacated is not entitled to the Fair Sentencing Act.

[00:16:30] Speaker 04:
Several courts, and the cases are in our brief, have said that they are.

[00:16:35] Speaker 05:
All right.

[00:16:36] Speaker 05:
Why don't we hear from the government?

[00:16:37] Speaker 05:
We'll give you some time on.

[00:16:38] Speaker 05:
Oh, sorry.

[00:16:39] Speaker 03:
She did not get to address the second part of this, so I just want to...

[00:16:44] Speaker 04:
Okay, right.

[00:16:46] Speaker 04:
Regarding the 848B statute in place at the time that Mr. Palmer was convicted and sentenced, the district court lacked jurisdiction to sentence him because it did not state a crime.

[00:16:57] Speaker 02:
At the time of his conduct, though, that wasn't the statute.

[00:17:04] Speaker 02:
22 months of the 24 months of edge.

[00:17:07] Speaker 02:
He was under clear predecessor.

[00:17:10] Speaker 04:
He was sentenced, though, under the 1989.

[00:17:14] Speaker 02:
What's the significance of the fact that for 22 months during his crime spree?

[00:17:20] Speaker 02:
Um, it was the predecessor statue.

[00:17:22] Speaker 02:
What?

[00:17:22] Speaker 02:
What?

[00:17:22] Speaker 02:
What?

[00:17:23] Speaker 04:
Well, that

[00:17:25] Speaker 04:
That gets into factual issues where there was evidence at trial, testimony from government's witnesses.

[00:17:31] Speaker 02:
Well, let's imagine it's true.

[00:17:32] Speaker 02:
Let's imagine that for 22 months of the 24 months, he was conducting, he was engaged in his crime spree under the predecessor statute in which the enhancement was clear.

[00:17:44] Speaker 02:
What does that, if that's the case, you may dispute that, but if that is the case, what significance would that have for us?

[00:17:52] Speaker 04:
Well, I think the court would have to look at

[00:17:56] Speaker 04:
what exactly the jury was asked to find and what they found about the time frame.

[00:18:05] Speaker 04:
And I think you have to look at the evidence.

[00:18:09] Speaker 02:
I thought this was a notice argument.

[00:18:12] Speaker 02:
I thought this was a due process argument.

[00:18:14] Speaker 02:
And if, in fact, he was on notice that that sort of conduct could lead to life imprisonment, I'm trying to think what that does to your notice argument.

[00:18:27] Speaker 04:
When he was charged, when he was arrested, when he was charged, when he was tried, convicted, sentenced.

[00:18:34] Speaker 02:
Was the only times to look at not when the conduct occurred?

[00:18:36] Speaker 04:
Well, I don't think that the defendant is held to sort of pick through older iterations of the statute.

[00:18:46] Speaker 02:
No, it wasn't the older iteration of the statute.

[00:18:48] Speaker 02:
As I understand it, for 22 months of the 24-months crime spree, it was a statute that was clear that this sort of conduct could lead to life in prison.

[00:19:00] Speaker 02:
Now, for the last two, now, at the time he was sentenced and so forth, we've got the model of the problem of the statute.

[00:19:07] Speaker 02:
But I'm just trying to get at, what's the legal significance of that fact, if that?

[00:19:12] Speaker 04:
I think there is none.

[00:19:14] Speaker 04:
Because at the time that the court exercised jurisdiction, it did not have jurisdiction.

[00:19:24] Speaker 04:
Because the offense that the government charged,

[00:19:31] Speaker 04:
and the offense for which the judge sentenced him was based on the 1989 statute that did not state a crime.

[00:19:40] Speaker 05:
So that's your response to the government's waiver and procedural bar arguments that this is a jurisdictional matter?

[00:19:46] Speaker 04:
Yes, it is a jurisdictional matter and it can't be waived.

[00:19:50] Speaker 04:
All right, thank you.

[00:19:51] Speaker 04:
Thank you.

[00:20:01] Speaker 01:
My name is Nick Coleman and I represent the United States.

[00:20:05] Speaker 01:
I'd like to begin by addressing the first Fair Sentencing Act issue before proceeding to the jurisdictional question about the CCE statute.

[00:20:15] Speaker 01:
One thing I did notice that counsel began with the argument that there was unfairness here in having appellant sentenced not under the law passed in 2010, but that his sentence would remain what it was when he was actually

[00:20:34] Speaker 01:
committed the crimes and was sentenced.

[00:20:35] Speaker 01:
And I think here the unfairness is on the other side.

[00:20:39] Speaker 01:
The only reason why a penalty can even make this argument is because the government charged him with what was then the maximum threshold, or rather the minimum threshold to face the life sentence penalty, which was 1,500 grams.

[00:20:51] Speaker 01:
as Judge Green made clear at the sentencing.

[00:20:54] Speaker 05:
What was that sentence you just said?

[00:20:55] Speaker 05:
The government charged him with what?

[00:20:58] Speaker 01:
The minimum?

[00:20:58] Speaker 01:
At the time, I believe it was 1,500 grams of crack cocaine that made you eligible for the life penalty.

[00:21:04] Speaker 01:
But that's because that was what the law was at the time.

[00:21:07] Speaker 01:
Judge Green made clear at sentencing that as the government's evidence showed at trial,

[00:21:12] Speaker 01:
A parent in his organization was responsible for trafficking a crack cocaine far in excess of that amount.

[00:21:19] Speaker 01:
In fact, far in excess of the 8,400 grams.

[00:21:20] Speaker 05:
But let me just ask you what you're asking us to decide.

[00:21:24] Speaker 01:
Right.

[00:21:25] Speaker 05:
As though you're arguing to us as the district court.

[00:21:28] Speaker 01:
I think what this, if the idea is that Dorsey needs to be extended so far as to reach even what are merely ministerial corrections,

[00:21:38] Speaker 05:
to a sentence, simply to reflect vacated judgments, because it will result in... Well, let me ask you then, what do you take with Congress's language in 2255?

[00:21:47] Speaker 05:
Yes, I think you're... All right, resentencing or correction, you must vacate the judgment.

[00:21:57] Speaker 01:
Well, it's said, I don't think, again, it depends on whether you're looking at

[00:22:03] Speaker 01:
every part of a overall set of sentences for individual convictions, or whether you think that automatically the not is undone every time one conviction is vacated or submerged.

[00:22:15] Speaker 05:
I'm not talking about the not, counsel.

[00:22:17] Speaker 05:
I'm dealing with the text of the statute Congress passed.

[00:22:21] Speaker 05:
And it has these four alternatives.

[00:22:24] Speaker 05:
And so either the defendant's released, he gets a new trial,

[00:22:29] Speaker 05:
And we're dealing with the other two.

[00:22:31] Speaker 05:
He gets a resentencing or correction.

[00:22:34] Speaker 01:
I think this is at most a correction.

[00:22:36] Speaker 01:
It is certainly not a resentencing that required the existing convictions where the district court says there is no need to go back to those original sentences and redo them.

[00:22:45] Speaker 05:
And so the district court here said, I have to decide, this is a question, I have to decide what judgment to enter now that I have granted a motion to vacate.

[00:23:00] Speaker 05:
And I, the current district court judge, am in total agreement with the original district court judge that life is appropriate.

[00:23:14] Speaker 05:
Could the district court have reached an entirely different conclusion?

[00:23:19] Speaker 01:
I don't think it would have been appropriate for the judge to do so.

[00:23:22] Speaker 05:
No, legally.

[00:23:23] Speaker 01:
Yes, I don't think it would have been legally appropriate for the judge to do that in this case.

[00:23:26] Speaker 05:
No, strike appropriate.

[00:23:28] Speaker 05:
I'm trying to understand it.

[00:23:29] Speaker 05:
He had the legal authority to do something different, having corrected in your language and vacated the judgment.

[00:23:38] Speaker 01:
We haven't been asked to brief that because obviously that's not what Judge Lamberth did in this case.

[00:23:42] Speaker 05:
I don't think that Judge Lamberth... Treat it as a hypothetical question and give me your best answer.

[00:23:47] Speaker 01:
Our answer is this.

[00:23:49] Speaker 01:
Judge Lamberth, it would not have been...

[00:23:52] Speaker 01:
permissible for him to essentially say, I'm going to now re-sentence for all of the remaining counts of conviction, I am going to re-sentence appellant under the new law as opposed to the old one when there was no reason to think that vacating merged concurrent counts

[00:24:12] Speaker 01:
had any effect on the old sentences.

[00:24:15] Speaker 01:
And so I don't think that he would have had that authority.

[00:24:17] Speaker 01:
And I think you can even see that appellant did not suggest to Judge Lambert that he had that authority, because if you look at the motion that appellant filed... That's a housekeeping motion.

[00:24:27] Speaker 05:
He said, you know, we've got this old judgment that talks about 17 counts.

[00:24:33] Speaker 05:
You vacated five of them.

[00:24:35] Speaker 05:
So we need a judgment that shows the 11 counts.

[00:24:38] Speaker 01:
Right.

[00:24:38] Speaker 01:
And a parent went so far as to say the sentences should be and then listed all of the original sentences that Judge Green had issued.

[00:24:45] Speaker 05:
That's what Judge Lamberth had done.

[00:24:46] Speaker 01:
Well, that's true.

[00:24:47] Speaker 01:
But I think it also there was no suggestion made there that what was being done, that's the judgment that's on appeal, is the housekeeping judgment.

[00:24:54] Speaker 05:
At least for this judge, that was not a waiver, OK, that motion of the arguments made in the 2255 motion.

[00:25:02] Speaker 01:
But I think what it does illustrate, even if it's not seen as a waiver, it illustrates that the actual act of simply entering the amended judgment that removed vacated counts was nothing more than a ministerial act.

[00:25:15] Speaker 01:
And that is the judgment that's on appeal here today.

[00:25:17] Speaker 02:
It was that actually supposed to distinguish between ministerial acts and those that are clearly falling under doors.

[00:25:28] Speaker 01:
Well, again, I mean, Dorsey did not address at all the situation we have here today.

[00:25:33] Speaker 02:
We were to follow what all of our sister circuits have done and say that it applies to be sentencing.

[00:25:38] Speaker 02:
How do we distinguish between ministerial and resentencing?

[00:25:41] Speaker 01:
I think when a judge has to look at an existing count of conviction,

[00:25:46] Speaker 01:
and say that the sentence now needs to be redone.

[00:25:48] Speaker 01:
And I think the sentencing package doctrine, if it comes into play, is the classic case of a true resentencing.

[00:25:55] Speaker 01:
In other words, when vacated counts, when it's clear that that affected what the sentencing judge had wanted to do in terms of the overall length of the sentence, in other words, that the vacated counts had an impact on the sentence for the still existing

[00:26:13] Speaker 01:
convictions, then a resentencing is required, and that's more than a ministerial act.

[00:26:18] Speaker 01:
And I think that's one, I think one of the really good dividing lines is, is there any need for the defendant to be present at such an action?

[00:26:26] Speaker 01:
And I think vacating a merged count that has no effect on the other sentences, because they were purely concurrent,

[00:26:34] Speaker 01:
is not the sort of act that this court has said a defendant must be present for.

[00:26:39] Speaker 01:
Certainly, if now what's going to be said is that through the back door, now district judges, whenever they're told that they have to vacate a count, now they have to redo all of the other sentences.

[00:26:52] Speaker 01:
That would be the implication.

[00:26:54] Speaker 01:
And I don't think that that is what this court or any other court has held needs to be done.

[00:26:58] Speaker 05:
Well, let me ask you.

[00:26:59] Speaker 05:
I didn't see any argument about presence of the defendant in your brief.

[00:27:02] Speaker 05:
Did I miss that?

[00:27:04] Speaker 01:
No, it's discussed in a number of the cases, although I think we do have, we did talk about several cases by implication, where we said the defendant was not required to be present.

[00:27:14] Speaker 01:
And I think that's a good, if the question is what is the difference between the two, I think that's a good starting point.

[00:27:20] Speaker 05:
I, you know, with all due respect, those courts were not hanging their holding on whether the defendant needed to be present.

[00:27:30] Speaker 01:
That's true, but I think here a defendant would have to be present.

[00:27:33] Speaker 01:
Why?

[00:27:34] Speaker 01:
If the question is now, well, we're going to redo this sentence under new law, then it's hard to see how the judge doesn't have to have a full resentencing hearing where everybody gets to argue essentially what the new sentence should be under the new law.

[00:27:50] Speaker 01:
I don't see, and that really would be the effect.

[00:27:52] Speaker 01:
I don't think Judge Lambert had to do that.

[00:27:54] Speaker 05:
But you see, what I think you're still skirting, with all due respect, is Congress's use of the word correction.

[00:28:00] Speaker 05:
in 2255, and its instruction that the judgment has to be vacated.

[00:28:09] Speaker 01:
I don't think that what Congress intended by that was that every time a judge removes one count of conviction,

[00:28:17] Speaker 01:
that it is necessary now to undo the sentence for the remaining counts of conviction in every case.

[00:28:24] Speaker 01:
I don't think that that is what Congress had in mind.

[00:28:26] Speaker 01:
And that is why it distinguished between correction and resentencing.

[00:28:30] Speaker 01:
A resentencing on a count of conviction is a different animal from what we're dealing with here today.

[00:28:36] Speaker 01:
And again, I do think that Dorsey was talking about situations

[00:28:43] Speaker 01:
where it could be a matter of mere months between defendant A, who was sentenced for the same conduct at the same time, just before the FSA is passed, and defendant B, who was sentenced

[00:28:59] Speaker 01:
later, but to extend that kind of discrepancy back in time to this kind of a case, we submit is not what Congress had in mind.

[00:29:10] Speaker 01:
Congress did not make the FSA retroactive, but this it's hard to see every time a defendant who can find some count that's been merged.

[00:29:18] Speaker 01:
now gets the incredible windfall of having his sentence done under existing law that nobody could have anticipated at the time when he was charged.

[00:29:27] Speaker 03:
It's true that Dorsey speaks only of initial sentencing.

[00:29:35] Speaker 03:
which seems to be a clear line, but as I understood it, the government concedes that if there is, quote, re-sentencing, then Dorsey is extended to that.

[00:29:49] Speaker 03:
Am I wrong about that?

[00:29:51] Speaker 01:
That the government does appear to have taken that position with respect to true re-sentences.

[00:29:57] Speaker 01:
We certainly contest the idea that what happened here was a re-sentencing on the existing counts of conviction where the judge leaves them on the books and basically says they don't need to be re-aggressed.

[00:30:08] Speaker 03:
But the problem with that concession is that then we are in the business of trying to figure out when it is a true re-sentencing.

[00:30:17] Speaker 03:
And so what's the principle that

[00:30:19] Speaker 03:
is, you know, that can be applied there.

[00:30:23] Speaker 01:
I think, again, it sort of, you know, the way that the district judge approaches it shows whether it was, in fact, a resentencing.

[00:30:30] Speaker 02:
But that can't be right.

[00:30:32] Speaker 02:
The district court judge may be wrong.

[00:30:35] Speaker 01:
I think only if what the district judge does, I mean, it is conceivable the district judge could be wrong that what he's doing is in fact a resentencing.

[00:30:45] Speaker 01:
This is not that case, however, because Judge Lamberth was very clear, there is no need to revisit

[00:30:52] Speaker 01:
the concurrent counts that remain on the books.

[00:30:55] Speaker 01:
What you have here, I mean, I think it's important to look at what was struck off.

[00:31:00] Speaker 01:
You have concurrent 924C counts that everybody agreed under Rutledge merged with the conspiracy count.

[00:31:08] Speaker 01:
But Judge Green had structured those all in a way that they were concurrent.

[00:31:12] Speaker 01:
But the one that's really at issue here today is the CCE count and the narcotics conspiracy, which this court has since held is essentially subsumed.

[00:31:22] Speaker 01:
into the CCE count.

[00:31:23] Speaker 01:
That's why you can't have both convictions on the books at the same time.

[00:31:27] Speaker 01:
But to say that therefore now, every time a defendant who is convicted of both is now entitled to a full resentencing on the CCE count, when it is not clear that he's not,

[00:31:41] Speaker 01:
takes that language much too far.

[00:31:45] Speaker 01:
This is not a resentencing.

[00:31:46] Speaker 01:
This is simply a recognition that under this court's law, I believe in Anderson, the narcotics conspiracy count was merged into the CCE.

[00:31:56] Speaker 01:
There is absolutely no reason to see why that would require reevaluating the sentence for the CCE count.

[00:32:04] Speaker 05:
Of course, the district court here stated he had discretion

[00:32:08] Speaker 05:
to vacate the CCE count and he was exercising his discretion not to.

[00:32:15] Speaker 05:
So that undercuts your argument.

[00:32:17] Speaker 01:
Well, I don't know that it necessarily undercuts this in terms of whether this was a resentencing.

[00:32:23] Speaker 01:
He may choose which one of the two that he leaves on the books.

[00:32:26] Speaker 01:
And again, that isn't a question that we've been asked to address here today.

[00:32:30] Speaker 01:
The judge may have seen that.

[00:32:32] Speaker 05:
Well, counsel, I mean, I understand you don't want to answer these questions.

[00:32:36] Speaker 05:
But even as to the question that Judge Brown asked you, it's clearly written in your brief.

[00:32:41] Speaker 05:
And you sort of backed away from it by saying it appears that's the position the government has taken.

[00:32:47] Speaker 01:
Well, we're not backing away from anything in our brief.

[00:32:51] Speaker 05:
So if this court were to say what?

[00:32:55] Speaker 05:
That what the judge was doing once he vacated was a resentencing, then the government is fine with that?

[00:33:05] Speaker 01:
We don't think, no, because obviously that would be exactly contrary to what we've argued here today.

[00:33:09] Speaker 05:
No, you're saying we must find that it was only a correction.

[00:33:15] Speaker 01:
That's correct.

[00:33:16] Speaker 01:
This was a correction of the judgment.

[00:33:18] Speaker 05:
And that the district court, having corrected, had no authority, that's the strange part of this, to do anything other than go back to what the original judge did.

[00:33:30] Speaker 05:
Judge Lambert didn't seem to view his authority as limited in that manner.

[00:33:36] Speaker 05:
He talked about his discretion.

[00:33:39] Speaker 05:
He talked about which counts he was going to vacate or not vacate.

[00:33:45] Speaker 05:
And indeed, he didn't do exactly what the defendant asked him to do when he issued the updated order.

[00:33:56] Speaker 01:
These are two different questions, I think, that we're talking about here, though.

[00:34:00] Speaker 05:
Judge Lamberth, first of all, the 22- Well, you introduced this, counsel, with all due respect.

[00:34:08] Speaker 01:
I'm sorry, Your Honor.

[00:34:10] Speaker 01:
I do want to make sure I answer the court's questions.

[00:34:12] Speaker 01:
So I do think that what Judge Lamberth was trying to do was a different... Again, if what one thinks of what is being corrected, I suppose, is the way to think.

[00:34:25] Speaker 01:
Are you correcting the actual individual sentences for each separate conviction?

[00:34:31] Speaker 01:
I mean, each sentence must be based on a specific conviction.

[00:34:35] Speaker 01:
It is bound by the law that Congress has provided for that conviction.

[00:34:42] Speaker 01:
The judgment is, of course, in a particular case reflects all of the different counts of conviction and the sentences for them.

[00:34:51] Speaker 01:
The correction here at most was to the judgment.

[00:34:54] Speaker 01:
It was not to any individual sentence that remained on the books.

[00:34:59] Speaker 01:
It was to the judgment by striking merged counts.

[00:35:02] Speaker 01:
Certainly Judge Lamberth saw that step as being nothing more than a ministerial act.

[00:35:07] Speaker 01:
And that was how it was presented to him by appellant at that point.

[00:35:11] Speaker 01:
Yes, at the 2255 stage, appellant asked for a new sentencing hearing.

[00:35:16] Speaker 01:
But that decision is not on appeal here today.

[00:35:20] Speaker 01:
Appellant did try to take an appeal, but it is not properly before this court.

[00:35:24] Speaker 01:
It's his ministerial act which at most corrected a judgment.

[00:35:28] Speaker 01:
He did not correct any sentence for any conviction.

[00:35:31] Speaker 01:
And I think that is one of the crucial distinctions here.

[00:35:34] Speaker 01:
Now, yes, Judge Lamberth decided at the 2255 motion that he would vacate the narcotics conspiracy instead of the CZE conviction.

[00:35:46] Speaker 01:
Appellant disagreed with that, but that's not an issue that's before this court today.

[00:35:53] Speaker 01:
Again, which one he decided to vacate as merged is a separate question from having made all those decisions and then being asked later to enter an amended judgment.

[00:36:02] Speaker 01:
All he did at most was correct a judgment.

[00:36:05] Speaker 01:
And with respect to that judgment, there was no need for him to try to start then correcting existing sentences for individual convictions when he saw no basis to do so.

[00:36:16] Speaker 01:
And under that, because that I think flows from how certainly other courts have approached this question, what he did was not a resentencing under 2255.

[00:36:29] Speaker 01:
It was at most a correction of a judgment.

[00:36:32] Speaker 01:
And with respect to that, the FSA does not apply.

[00:36:35] Speaker 05:
Do you want to address 848B?

[00:36:37] Speaker 01:
Yes.

[00:36:39] Speaker 01:
First of all, we do think that this jurisdictional question has already been addressed and rejected by this court in Baucom.

[00:36:48] Speaker 01:
There was no right not to be hailed into court for a statute that has not yet been declared unconstitutional, and this court has said that that is not – the district court still has jurisdiction.

[00:37:00] Speaker 01:
over a statute whose constitutionality is still in doubt.

[00:37:05] Speaker 01:
And in fact, that's even more the case here, where Appellant isn't actually saying that the CCE statute as a whole was unconstitutional, but only the life penalty.

[00:37:17] Speaker 01:
So Appellant still must concede implicitly, I assume, that he would be properly convicted of CCE.

[00:37:27] Speaker 02:
There's a difference between being, the fiction here is that people know or need to know what the penalty will be and the difference between a mandatory life and a statutory minimum of 20 years is a big difference.

[00:37:48] Speaker 01:
Right.

[00:37:49] Speaker 01:
That's true.

[00:37:50] Speaker 01:
The jurisdictional question, though, I address only because it's the only way that a parent can ask this court to review it, because that's otherwise this claim is procedurally barred.

[00:38:00] Speaker 01:
It should have been raised on direct appeal 25 years ago and was not.

[00:38:05] Speaker 01:
Even if this court were to entertain it, however, we think that this court's decisions dealing with this very statute

[00:38:14] Speaker 01:
after it was enacted and having to deal with shows that the fact that, again, only 22 of the 24 months were unaffected by this error.

[00:38:27] Speaker 01:
The fact that the appellant has never even attempted to show that he was convicted solely on the basis of supposed

[00:38:33] Speaker 01:
post-invalidity conduct, shows that there was no notice problem either, because for, except for the last two months of his two-year conspiracy, there was no notice problem at all in the CCE statute's life penalty.

[00:38:48] Speaker 01:
And since Appellan hasn't even attempted to make that showing, this claim again simply isn't carried here today.

[00:38:58] Speaker 01:
If there are no further questions, we respectfully submit that the judgment of the district court should be affirmed.

[00:39:02] Speaker 01:
Thank you.

[00:39:03] Speaker 05:
Thank you.

[00:39:04] Speaker 04:
Council for repeal.

[00:39:10] Speaker 04:
Regarding the 848.

[00:39:12] Speaker 04:
the government at no time gave notice to the defendant that he was being charged under a prior iteration of the statute.

[00:39:22] Speaker 04:
So as far as he knew, he was being charged under the 1989 version of the statute.

[00:39:30] Speaker 04:
I'm happy to answer any questions the court has, and if not, we will rest on our briefs.

[00:39:38] Speaker 04:
Thank you.

[00:39:38] Speaker 04:
We'll take the case under advisement.