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Case number 16-3107, United States of America versus Anthony Tyrone Holman, also known as Nino Appellant.

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Mr. Kramer for the appellant, Ms.

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Nyack for the appellee.

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Good morning, Your Honors, and may it please the Court.

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There's really very little dispute, I think, between the parties about both issues that are raised and even less about the second issue.

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I think it's clear or plain, however standard of review, that the District Court never made any inquiry into Mr. Holman's ability to pay or the willfulness

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of his failure to pay restitution.

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So I'll focus on the first issue, which is the jurisdiction, which would make the second issue irrelevant in any event.

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And the only dispute between the parties on that issue is whether the failure to pay restitution issue that was alleged in petition number two as violation number two

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was still pending.

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The government, in a footnote in their brief at page 9, I think it's footnote 4, concedes that his arrest on the Maryland charges had been fully resolved at the 2014 hearing, but the government contends that the restitution issue was still outstanding, although at the time of the

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October 2014 hearing when the district court said, I'm sanctioning you for your conduct and imposed certain conditions on Mr. Holman that are contemplated under Section 3583.

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At that time, the district court said, these are the sanctions I'm imposing for your conduct, which the district court had made inquiry into Mr. Holman's failure to pay restitution as well as his arrest in Maryland.

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that had been dismissed by them.

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And of course, Mr. Holman repeatedly explained that he was unemployed and therefore unable to pay restitution from the very beginning.

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But then the district court said, I'm sanctioning you for your conduct, set a hearing in February, but said to Mr. Holman, if you comply with all the conditions I've just imposed, you don't have to worry about anything for this next hearing.

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I'm sorry.

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Not February, but December, I think.

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December the next hearing was to be in December 2014.

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Yes, and then nobody did anything for almost 18 months Mr. The probation office filed a petition in 2016 after mr. Holman had incurred a new arrest and added and then filed a petition violation number four they called it for failure to pay restitution, but it was for a different time period the initial violations were number one

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for the Maryland arrest, number two for the failure to pay restitution for several months in 2014.

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And then after nothing had been, the district court had sanctioned Mr. Holman for those two actions, those two violations.

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Nothing was done for almost 18 months when the probation office filed a petition in 2016 for a new arrest in Virginia and they added allegation number four, which was failure to pay restitution for a different time period

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than had been in the violation number two that was dealt with at the October 2014 hearing.

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Everybody agrees that no warrant or summons was issued for violations number three or number four and that obviously they were not, the district court did not deal with them, complete any action on them until after the period, well after the period of supervised release, it expired.

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If the, if a court had

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um, done exactly what you did.

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Um, but said specifically, um, I'm not dealing with restitution.

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Um, do you, would you have been okay

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with reviving this 18 months later.

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In other words, is the problem just the confusion about what happened?

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I don't think so.

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I don't think a district judge can just say I'm not going to deal with a violation.

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I think a district court has to deal with the violation or not.

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At the time, so what I understood was happening here, and maybe you can correct me if I'm wrong, is that because he was unemployed and there were some requests to say, well, let's wait 60 days to see if he can come into compliance.

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So I don't mean to say that the court was ignoring it, but that if the court had made it clear

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Well, I am not resolving this that seems like what happened.

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We're gonna wait 60 days and see what happens No, I agree with you.

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That's what the parties requested and that's what the district court Did but then the probation office submitted a report?

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That said in the interim submitted or it just before that scheduled December hearing that said mr. Holman has complied with all the increased

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conditions that you've placed upon him in the meantime, and the district court then cancels the hearing.

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It didn't say vacated.

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Admittedly, the minute order said to be rescheduled, but it said the hearing for December is canceled.

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So at that point, there was no indication that any action with respect to the restitution

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alleged violation was outstanding.

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In fact, Mr. Holman had said, I'm unemployed.

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That's why I can't pay.

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OK.

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But I guess my question is, is that the problem?

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That at the point where he said, you know, we reschedule the hearing or something, he didn't say.

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And that means that remains pending.

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Was there something specific?

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I see.

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And I think that's exactly right.

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I mean, there was no indication.

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Let me put it this way.

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There's no indication anywhere in the record that failure to pay restitution, which, as I've argued, was improperly adjudicated in any event, but that that allegation number two, violation number two, was still outstanding after the cancellation of the December hearing.

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because the probation office submitted the report that said he's been in compliance with all the conditions, and the district court then, the day of the scheduled hearing says the hearing's canceled, no reason is given, and I don't see anything that can be read into that other than that this proceeding is concluded on these violations.

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There was a minute order, part of the minute order said to be rescheduled, but nothing was ever rescheduled.

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What do you make of that to be rescheduled?

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How do you explain that?

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It seems to me, I don't think I can, nor do I think the government can, frankly.

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It seems to me totally inconsistent with the report from the probation office saying that he's completed all the conditions, the district court saying this is what I'm going to do to you for your conduct, and then the day of the hearing cancels it.

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And it didn't seem to indicate it was a scheduling

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issue.

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So it's unknown and I don't think that should be interpreted against Mr. Holman.

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Mr. Kremer, is there any, if I look at the record, it's a little bit hard to decipher sort of month by month from when Mr. Holman was released from prison to when his supervisor released, finished, what the history of payments was.

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Is there any record of when payments were made and for how much?

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No, it's completely unclear.

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I think at one point the defense lawyer said, Mr. Holman actually said at the final sentencing, I did make payments along the way.

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I came in when I had money and I made payments.

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And then he said, I just made one actually recently, he told the district court.

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The defense attorney at one point said, I believe Mr. Holman has made payments.

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Nobody ever clarified it, mainly because the district court didn't make any inquiry.

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Let me ask you, what does it mean in practice to require

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payment of restitution at a rate of no less than $50 each month.

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And in particular, if Mr. Holman were to make a $200 payment, if he were to consistently make payments and then make a $200 payment and then not make payments for the ensuing three months, would that be permissible because he's effectively prepaid or would that be impermissible because he has to pay at a rate of no less than $50 each month?

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I think most judges would interpret that if you have a surplus one month, you should try to make the payment, and that if you can't make it the next month, it probably would apply.

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But again, because... No, that you'd be in violation if you hadn't made it, even though you were ahead.

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Well, you'd be in violation only if you willfully failed to pay under a period... Even if you were ahead, even if you'd made more than... I have to say, I don't...

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certainly the record in this case doesn't provide because the district court just simply said you didn't pay, you're in violation and contrary to Bearden.

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But I think most judges would interpret that if you have the money, you should pay at least $50 a month.

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You don't have to pay $200 a month.

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So that's something you did on

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that is good for you on your behalf if something comes up in the future.

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But they would, I think, but there's nothing in this record, but I think they would credit it that, I mean, it only comes into play, I think, that's the problem in this case.

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It really only comes into play if there's a willful failure to pay and the judge makes the inquiry and that wasn't done.

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And matter of fact, when there was any inquiry, Mr. Holman explained repeatedly, I'm unemployed, I can't pay.

[00:09:44] Speaker 02:
One of the reasons I'm asking is because the March 31, 2016 probation report, which is at page 33 of the appendix, reports that they had collected to date $1,110, which is about 22 months worth, if it's $50 a month.

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And so it made it seem like there, and then there's various comments about long periods of non-payment, and it does suggest that he had done some larger payments at the beginning, and I just wasn't sure

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What to make of that?

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Well, in matter of fact, that report says that he a payment was received on July 29th, 2014 for $200.

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And if you if violation number two, the original petition, which is page 14, says he failed to pay for April, May, June and August, specifically skipping July.

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So obviously there was a payment.

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made in july and there was obviously he made um nine hundred and ten dollars in payments at other times there's no indication in this record when although as the defense lawyer pointed out i believe that other payments have been made by mr holman but if you look and in this lens further support to mr holman violation number four is for a different time period than violation number two violation number four is from november 2014 so that's why another reason

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This would have said – if the probation office thought that the restitution violation had not been concluded, it would have – it would not have said as of November 14th.

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It would have said the previous violation – Going back to May or whatever it was in 2014.

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– has not been resolved.

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And, matter of fact, when the district court asked

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at the first proceeding in 2016 said about the restitution, that violation goes to March of this year, this petition.

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The probation office responded, yes.

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It was only later after the issue of jurisdiction arose that people tried to say, wait a minute, that restitution violation is still outstanding.

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And is it your understanding, Mr. Kermer, that under Bearden, one, an allegation of restitution violation could be resolved by a showing that someone was looking for work?

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Yes.

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In other words, they could, if they were unable to pay but were looking for work?

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Yes, I think it's under beard, and it's clear that failure to pay has to be willful.

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And if you don't have any reason.

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The restitution wouldn't be resolved, but the probation violation.

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Yes, I'm sorry, the violation itself.

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The restitution obligation would still be outstanding.

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But the violation of failure to pay restitution could not be resolved against a defendant unless there was a showing of willfulness.

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And I think hand in hand with that is a showing that you have money available.

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I mean, you could win the lottery, theoretically, not be employed.

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Not pay and that would be a violation even though you're unemployed or you could come into an inheritance But but there has to be a that first of all there has to be an inquiry by the district court.

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It's not the defendant's Burden to show that the failure to pay was not willful.

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It's the initial burden of the district court to make the Inquiry or the government and indeed the government

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neither in the district court or in their brief in this court has ever contended that Mr. Holman willfully failed to pay restitution.

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But I don't think the court needs to reach that issue in any event because of the jurisdictional issue.

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Thank you.

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I'll reserve the time.

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Thank you.

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Thank you.

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If I have any.

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May it please the court.

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Priya Naik on behalf of Appellee of the United States.

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I'll begin with the jurisdictional issue.

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The district court had jurisdiction to revoke appellant's term of supervisor lease based on the summons underlying the restitution violation.

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And that's because that violation was never resolved.

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Importantly, although nothing happened, and we admit that it would have been better if something happened between December of 2014 and

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April of 2016, but Appellant made no restitution payments during that period.

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And he was aware that he made no restitution payments during that period.

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I was just going to ask you the same question that I had asked Mr. Kramer, which is the record on that.

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Because one can read this record with the $1,110 payment that he, in fact, had prepaid quite a chunk.

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And I just don't know what your position is on if that were the case.

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Does that cover him for some months when he did not take an action of making an additional payment for that month?

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Does that put him in violation or not?

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If that were the case, I'm not asking you to concede.

[00:15:11] Speaker 05:
To be frank, I think that the restitution condition that is in the judgment could be read either way, that it is a minimum of $50 a month, and you must pay $50 each month, or you're responsible for a total of $50.

[00:15:27] Speaker 05:
But in any case, probation saw it as a violation when it filed the petition in September 2014, and the record

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is clear and it's undisputed that the last payment was made in July of 2014.

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So Probation's view at that time was that he was in violation, so it appears that they're reading it that there must be a $50 payment each month.

[00:15:54] Speaker 02:
And in which summons are you relying on, the May 28th, 2014 summons or the October 15th?

[00:16:01] Speaker 05:
The October 15th, 2014 summons.

[00:16:10] Speaker 05:
No your honor and in this case it did provide a basis for jurisdiction through the end of the term of supervised release because the violation underlying that that summons was never resolved but there's a limit in the statute so it couldn't be forever because section 3583 I allows

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the post-term revocation only for a period reasonably necessary for the adjudication of matters arising before its expiration.

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And it's the government's burden to show that it's reasonably necessary for the resolution.

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I believe that's correct, Your Honor.

[00:17:09] Speaker 05:
There's no question that an additional time period was reasonably necessary to resolve, at a minimum, the Virginia arrest because the defendant or appellant wasn't convicted until after his term of supervised release expired.

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But the offense occurred before the expiration of the term of supervised release.

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happened initially in 14.

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Looks like it was over.

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Can you go two, three, four years later and say, well, it really wasn't over, and we have a summons from 14 that is still unresolved.

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It provides a jurisdictional basis now, several years later.

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I don't think the court has to go that far because- No, but we do have to think about that.

[00:18:06] Speaker 04:
Absolutely.

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It's the first thing that leaks out is how far can this go?

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providing.

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It certainly makes sense within a close period of time, but I'm not sure beyond a very close period of time what we're talking about, especially in a case like this, where it looks like the matter was resolved.

[00:18:26] Speaker 05:
we are we disagree that the matter was resolved in addition to stand but it but in addition in this case i think within the term of supervised release it was certainly a reasonable amount of time especially considering that no remedial action was taken with respect to accounts restitution payments in terms of that he didn't make any and so you don't have we don't have

[00:18:52] Speaker 05:
a petition that's filed long after supervision ends, because he's still subject to the terms of supervision.

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And this doesn't come as a surprise to him.

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And moreover, the petition that was filed in April of 2016 gave him notice before his term of supervised release expired that he's going to be held accountable for these two violations, the continuing restitution violation and the new arrest in Virginia.

[00:19:16] Speaker 02:
So Ms.

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Naik, you

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are relying on the October 15, 2014 summons, but the judge said

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that I guess it's the docket entry on April 14th in 2016, he said alleged violations three and four would be addressed at any forthcoming hearing on violation one.

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Violation one was not the restitution violation, right?

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That was the marijuana from Virginia.

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So he's thinking that what's open is violation one, not violation two and the later summons, isn't that right?

[00:20:00] Speaker 05:
had not noticed that in the docked entry, Your Honor.

[00:20:03] Speaker 02:
But just going back to whether it's resolved or not, because I understand the government's relying heavily on the notion that there was an open-endedness in what was happening in 2014 in terms of the court proceeding.

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And as we asked Mr. Kramer, there is this ambiguity given that the docket says to be rescheduled.

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So that would seem to support your position.

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But if you just look at what happened, so the judge at the October 24, 2014 appearance

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the government asked for a verbal reprimand on the marijuana charge because it had been dismissed and the judge did that.

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And then the government asked that Holman be given an opportunity to pay and the defense agreed and Holman was at that point, as you recall, technically employed but he wasn't getting earning opportunities because it was a kind of, you know,

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as needed basis.

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And so the judge then recognized that he didn't have an ability to pay and said, I'm going to put you under electronic supervision and house arrest and give you a chance to prove that you're looking for work.

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And you can only leave home to look for work.

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You have to submit to weekly drug testing.

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You have to see a counselor.

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And he says, comply, and I'll take you off it.

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There's a chance you can salvage the situation.

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I'm going to give you the chance.

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We'll be back here in December.

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If there's violations between now and December, you'll be spending Christmas in prison.

[00:21:29] Speaker 02:
And then to probation, the court said, if there's any violations between now and then, I want to be informed immediately.

[00:21:36] Speaker 02:
probation does not inform him of any violations.

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And to the contrary, in December, just before the December appearance, the probation status report said that he'd started employment last week.

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And he'd been compliant with the location test monitoring and all urine tests.

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So even though he hadn't paid, it seems that what the judge was saying was, you do an earnest job of finding some way to earn the money, and you will be in compliance not with restitution, but with the probation terms.

[00:22:09] Speaker 02:
And he said, otherwise you're going to be spending Christmas in prison.

[00:22:11] Speaker 02:
He doesn't spend Christmas in prison.

[00:22:13] Speaker 02:
He cancels the hearing.

[00:22:15] Speaker 02:
Why isn't that resolution of any probation violation concerning payment of restitution during that period?

[00:22:25] Speaker 05:
Well, I think that the understanding was that the purpose of him seeking employment was to make his restitution payments.

[00:22:32] Speaker 02:
Absolutely.

[00:22:33] Speaker 05:
And so not just to seek employment.

[00:22:36] Speaker 05:
And I think it would be a different situation

[00:22:40] Speaker 05:
uh... appellant making bonafide efforts to seek employment and not found any but in this case the record reflects that he did find employment and the preceding week

[00:22:54] Speaker 02:
in December.

[00:22:55] Speaker 05:
Correct.

[00:22:55] Speaker 05:
And so I think the expectation is, well, he's just got this job.

[00:22:59] Speaker 05:
That memo from probation that was filed in December 2016 doesn't say anything about restitution payments.

[00:23:08] Speaker 05:
So it doesn't say he's in compliance with respect to his payments.

[00:23:12] Speaker 05:
It says he's found a job.

[00:23:13] Speaker 05:
And I think the implicit understanding in that is that, well, now he should be able to make his payments.

[00:23:19] Speaker 05:
And yet no payments follow.

[00:23:24] Speaker 05:
My understanding is that all parties understood that what comes next is you're working, you're getting an income now, which you weren't before, and so you should be making payments.

[00:23:35] Speaker 04:
But you're confusing the merits of the situation with whether or not the call on the original summons was over.

[00:23:43] Speaker 04:
Of course, you had the original summons.

[00:23:47] Speaker 04:
They came in, the judge said what the judge said, and then they

[00:23:54] Speaker 04:
it doesn't mean that the original summons is still alive because they subsequently violate what the judge said they had to do.

[00:24:03] Speaker 04:
That's the part of the case that makes no sense to me.

[00:24:05] Speaker 04:
Your argument exactly that way, well later on he didn't do what the judge intended that he would do, as if to suggest therefore the original summons were still alive.

[00:24:16] Speaker 04:
That doesn't make sense.

[00:24:20] Speaker 05:
Well our position is that

[00:24:23] Speaker 05:
He was given another 60 days to come into compliance and a part of that was to seek and hopefully find employment, which he did.

[00:24:33] Speaker 05:
But the second part was to actually make the payments, which he never did.

[00:24:38] Speaker 05:
And it's undisputed that his last payment was in July 2014.

[00:24:53] Speaker 04:
I don't understand this notion.

[00:24:54] Speaker 04:
You come before a judge on the summons, the judge says what the judge says, and then you're done.

[00:24:59] Speaker 04:
You walk out.

[00:25:00] Speaker 04:
60 days comes, nothing happens there.

[00:25:03] Speaker 04:
Why wouldn't anyone reasonably assume we're done?

[00:25:06] Speaker 04:
I may be called back in again, but that's a new summons.

[00:25:13] Speaker 05:
I disagree.

[00:25:13] Speaker 04:
I know you disagree, but I'd rather have reasoning.

[00:25:16] Speaker 05:
Yes, Your Honor, and I think it's because, so had the December hearing gone forward, I think that would be fairly and unquestionably part of the original summons, because when he originally came into court, probation and both parties asked for another 60 days for appellant to come into compliance.

[00:25:37] Speaker 05:
And so had that happened, it would have just been another hearing on the same summons.

[00:25:42] Speaker 05:
And then the court says, well, I'm canceling the hearing.

[00:25:49] Speaker 05:
It's going to be rescheduled at a date and time to be determined.

[00:25:53] Speaker 05:
And then he doesn't do that.

[00:25:55] Speaker 05:
But the violation is still left open.

[00:25:58] Speaker 05:
The only matter left to address at that point is restitution, because the stricter monitoring that was imposed for just that 60-day period, that was all complied with.

[00:26:08] Speaker 05:
The only thing outstanding was restitution.

[00:26:11] Speaker 05:
And so then they come back on the restitution violation, admittedly, after a new petition.

[00:26:16] Speaker 05:
But it's still the same violation, because appellant didn't make, if he had made

[00:26:22] Speaker 05:
$5, $10, or sporadic payments.

[00:26:24] Speaker 05:
I think we might be in a different situation, but there were no payments during that interim period.

[00:26:30] Speaker 02:
Ms.

[00:26:30] Speaker 02:
Nick, how does court supervision typically work under supervisor lease?

[00:26:35] Speaker 02:
I mean, you don't need, like, if you're a judge with a defendant under supervision, do you periodically have status conferences with that individual, even if no violations are reported or not?

[00:26:50] Speaker 05:
I am not 100% sure.

[00:26:52] Speaker 02:
I just wonder about, and this is actually related to sort of my little bit of uncertainty about what a summons is in this context, given the statutory role that Congress gave it, because presumably a judge can call a defendant in for, let's say, a status conference without a summons, right?

[00:27:18] Speaker 02:
Does that happen?

[00:27:20] Speaker 05:
I'm just not at liberty to say, I'm not sure.

[00:27:23] Speaker 02:
Yeah, I mean, you could just sort of say, let's check in in six months.

[00:27:26] Speaker 02:
I mean, it's supervised, really, so presumably.

[00:27:27] Speaker 05:
I imagine that that happens.

[00:27:32] Speaker 05:
But what this statute requires is a summons to trigger the plus term.

[00:27:37] Speaker 05:
Right, right.

[00:27:40] Speaker 02:
I mean, in fact, later there was a hearing at which Holman came, and there was no separate summons for that.

[00:27:47] Speaker 02:
He just sometimes defendants show up without being summoned.

[00:27:52] Speaker 05:
Correct.

[00:27:52] Speaker 05:
And it may be that the summons or the warrant is the formal way in which the court requires a defendant to come into court.

[00:27:59] Speaker 05:
But if he's coming in on his own.

[00:28:02] Speaker 02:
And what is the role of a summons?

[00:28:06] Speaker 02:
What's the purpose of a summons?

[00:28:10] Speaker 05:
hail a defendant into court at a particular time.

[00:28:18] Speaker 05:
But once a defendant is summonsed into court, then further hearings can be scheduled on the basis of that summons.

[00:28:27] Speaker 05:
And so we see this as a continuation of what started on October 24, 2014, and these later hearings followed.

[00:28:38] Speaker 05:
admittedly with a large gap, but that matter just was not resolved.

[00:28:44] Speaker 02:
Again, this is just sort of a practical question.

[00:28:46] Speaker 02:
Is there a practice of discharging a summons or extinguishing a summons?

[00:28:51] Speaker 02:
I mean, when it's served its purpose with respect?

[00:28:56] Speaker 02:
I know that wasn't done here, and that's part of why we're here.

[00:28:58] Speaker 02:
But have you ever seen that?

[00:29:00] Speaker 02:
Or is that something that courts do?

[00:29:04] Speaker 05:
I'm not aware of that practice.

[00:29:07] Speaker 05:
But I think I would just go back to once the purpose of the summons is served and the defendant is hailed into court, then further proceedings can be scheduled as needed.

[00:29:17] Speaker 05:
And then the court has the power over the defendant in that way.

[00:29:24] Speaker 05:
Your Honor, just briefly on the Bearden issue, I just want to emphasize that

[00:29:35] Speaker 05:
there would be no prejudice under any standard of review because revocation was revoked based on not just the restitution violation, but the Virginia conviction.

[00:29:47] Speaker 05:
And reading the court's decision carefully, at the time he actually revokes the term supervisor lease, he's talking about the Virginia conviction saying this carries a requirement of jail time

[00:30:03] Speaker 05:
And what Bearden, the rule of Bearden is that you can't imprison someone solely because of their inability to pay.

[00:30:14] Speaker 05:
But in this case, appellant wasn't sentenced to jail time solely because of his inability to pay.

[00:30:21] Speaker 05:
The district court said more than once at pages 122, 117, 77 of the appendix, he says,

[00:30:33] Speaker 05:
this conviction carries with it a requirement of incarceration, and there is no suggestion that had the restitution been the only, only violation that the district court would have given a period of jail time.

[00:30:44] Speaker 02:
I had a question about that.

[00:30:45] Speaker 02:
I think you're right, and I think the defense counsel was wrong, although Mr. Crenn will correct me if I'm wrong, that there is a mandatory revocation for possession of drugs, conviction or no.

[00:30:57] Speaker 05:
There is a mandatory revocation, that's correct.

[00:31:00] Speaker 02:
There was some confusion in my view in the record about whether the resultant incarceration when when surprise release is revoked is for the underlying offense the bank theft or for the

[00:31:13] Speaker 02:
supervision violation, the drug offense, because there's several places where the district court asks about the guidelines range for the marijuana offense, and I just wasn't sure why that would be.

[00:31:27] Speaker 02:
Did you follow that?

[00:31:29] Speaker 02:
It seems like he's acting as if he's having to sentence Holman for the offense, not revoke supervised release, which was part of the sentence for the bank theft.

[00:31:43] Speaker 02:
Do you have a position on whether the incarceration that occurs as a mandatory result of the drug possession is a sentence for the drug possession or is it a sentence for the bank then?

[00:31:58] Speaker 05:
I think it's a sentence for the drug possession offense that was committed while on supervision for the bank.

[00:32:07] Speaker 02:
I don't think that's right.

[00:32:08] Speaker 02:
That can't be right, because that would be double jeopardy if, I mean, wouldn't it?

[00:32:12] Speaker 02:
If it's an offense that he's been sentenced for.

[00:32:14] Speaker 02:
May as not, because it's Virginia in this case.

[00:32:18] Speaker 02:
But I thought that it was clear under Johnson that any term of incarceration that's imposed as a violation of supervised release is pursuant to the sentence for the bank theft, the underlying offense.

[00:32:33] Speaker 05:
Well, that's when he's talking about the guidelines.

[00:32:37] Speaker 02:
I just didn't, yeah.

[00:32:40] Speaker 02:
Enlighten me on that, the guidelines invocation.

[00:32:42] Speaker 05:
So given that he's on supervision for the bank theft, the fact that he's committed a new offense carries with it a requirement of incarceration.

[00:32:57] Speaker 02:
Right.

[00:32:58] Speaker 02:
But not pursuant to a guideline.

[00:33:01] Speaker 02:
I mean, the judge makes a determination how much of the supervised release to

[00:33:08] Speaker 02:
to convert into a sense of imprisonment.

[00:33:13] Speaker 05:
That's correct.

[00:33:14] Speaker 05:
But my understanding is that there was a guideline.

[00:33:16] Speaker 05:
The guideline range was 5 to 11 months, and the judge chose to go below that and give him four months.

[00:33:23] Speaker 05:
And in preparing for this argument, I noticed section 3583 G, which is in the same statute as 3583 I,

[00:33:37] Speaker 05:
it states explicitly that there is mandatory revocation and a term of imprisonment for a defendant who possesses a controlled substance in violation of the supervised release condition.

[00:33:56] Speaker 05:
So that's a statutory.

[00:33:58] Speaker 05:
And that's what I was getting at with

[00:34:04] Speaker 05:
The Bearden argument is that that's why the judge felt bound to impose both to revoke probation at all and to impose a sentence of jail time because he had to for the Virginia offense separate and apart from the restitution violation.

[00:34:20] Speaker 02:
This is maybe a little bit far afield, but I had a question also reading the statute.

[00:34:26] Speaker 02:
The imposition of house arrest in 2014

[00:34:33] Speaker 02:
Was that revocation of supervised release?

[00:34:39] Speaker 05:
Not in so many words, but in looking at the statute, it does say that that may be imposed only as an alternative to revocation, which I think supports our argument that that was for appellants admitted drug possession in Maryland back in 2014.

[00:34:58] Speaker 05:
And that's a logical and permissible sanction for that sort of conduct.

[00:35:04] Speaker 05:
Again, he was given GPS monitoring, house arrest or curfew, and notably drug testing, which corresponds to the nature of drug possession and use, which the district court was unhappy about.

[00:35:21] Speaker 02:
And also preparation for gainful employment.

[00:35:25] Speaker 02:
So the two kind of relate in the end in the terms that were imposed during that period, right?

[00:35:29] Speaker 02:
You've got to get yourself clean.

[00:35:31] Speaker 02:
You've got to be not on drugs.

[00:35:33] Speaker 02:
You've got to stay at home, except when you're out and looking for work.

[00:35:35] Speaker 02:
So it does seem to have elements of both, which is so the judge was treating him as a whole person and trying to address both issues.

[00:35:43] Speaker 05:
In a way, yes.

[00:35:43] Speaker 05:
But I don't think the judge was punishing him for the restitution violation at that time, given the context and that all parties were asking to give him a chance and give him another 60 days because he was unemployed.

[00:35:57] Speaker 05:
If there are no further questions, we ask that this court affirm the judgment of the district court.

[00:36:03] Speaker 01:
Thank you.

[00:36:03] Speaker 01:
Mr. Kramer, you had no time left, but we will give you two minutes.

[00:36:10] Speaker 01:
Thank you.

[00:36:11] Speaker 01:
In part because I have a question.

[00:36:16] Speaker 01:
Yes.

[00:36:17] Speaker 01:
It seemed to me the colloquy between counsel and Judge Edwards

[00:36:24] Speaker 01:
acknowledge that at the point that the district court said, you know, we'll wait this two months and see how things go.

[00:36:35] Speaker 01:
And clearly at that point, even though they were working under the original summons, they could have this later date, right?

[00:36:47] Speaker 01:
And there was no requirement for a new summons or anything like that.

[00:36:50] Speaker 01:
We're still working on the same one.

[00:36:53] Speaker 01:
So

[00:36:54] Speaker 01:
What cuts that off?

[00:36:57] Speaker 01:
If the judge could, in fact, schedule that hearing 60 days out and then say, well, okay, I'm going to reschedule it, what is it that determines that that summons is no longer providing jurisdiction?

[00:37:13] Speaker 01:
In other words, is it just reasonableness?

[00:37:15] Speaker 01:
What are we looking at?

[00:37:17] Speaker 03:
Well, I think a few things, actually.

[00:37:20] Speaker 03:
First of all, when he says, I'm sanctioning you for your conduct, not just for your drug use, but for your conduct, which there had been discussion.

[00:37:28] Speaker 03:
He had a long discussion about he hasn't made restitution payments.

[00:37:31] Speaker 03:
And the government's saying he's unemployed and can't make them at that October of 2014 hearing.

[00:37:37] Speaker 03:
And then he says, I'm going to sanction you for your conduct.

[00:37:41] Speaker 03:
And I'll see how you're doing in two months.

[00:37:44] Speaker 03:
We'll come back.

[00:37:45] Speaker 03:
And then he cancels that hearing.

[00:37:48] Speaker 03:
But never reschedules anything.

[00:37:50] Speaker 03:
And never actually rescheduled anything until after the period of supervised release had expired.

[00:37:57] Speaker 03:
So I think whatever the bounds may be, and Judge Edwards asked how long can it be pending, two or three, 18, it was before there was even any

[00:38:05] Speaker 03:
new petition file that was almost 18 months.

[00:38:09] Speaker 03:
I think it was 16 or 18.

[00:38:11] Speaker 03:
And then nothing was even done on that until after supervised release, it expired.

[00:38:15] Speaker 03:
So I mean, I think leaving it for any period of time, maybe maybe 30 days if it was during the holidays or something, but allowing it to just sit there for 18 months, I think exceeds the bounds of any

[00:38:28] Speaker 03:
reasonableness inquiry.

[00:38:30] Speaker 03:
And I think the statute, I'm sorry, I didn't mean that.

[00:38:32] Speaker 01:
No, but it seems like you're making a reasonableness argument.

[00:38:37] Speaker 01:
Now, as I understood what the court said there, and I agree that it's somewhat ambiguous exactly what is happening because it does seem like the sanction is more for the drug offense because the court says you have to show that you're looking for work

[00:38:58] Speaker 01:
and making the payments.

[00:39:01] Speaker 01:
So he doesn't, I mean, he can't impose something if he is unemployed and can't make the payment.

[00:39:09] Speaker 01:
So he says you have to show that you're looking for work and that you're complying.

[00:39:15] Speaker 01:
And it's also true that when we get the status report,

[00:39:19] Speaker 01:
from the probation officer, he says he's done all these other things.

[00:39:25] Speaker 01:
He doesn't mention restitution at all.

[00:39:27] Speaker 01:
That's not part of it.

[00:39:28] Speaker 01:
So I'm just trying to figure out how it is we decide that that summons is no longer good.

[00:39:35] Speaker 01:
And what I think you're saying to me is it's a reasonableness inquiry.

[00:39:40] Speaker 03:
Well, I think I'm saying both, actually.

[00:39:42] Speaker 03:
I'm saying that it was, in fact,

[00:39:45] Speaker 03:
terminated when the district judge canceled that December hearing and never rescheduled anything.

[00:39:51] Speaker 03:
But I'm also arguing alternatively that even if you don't accept that, that there's a reasonable instance.

[00:39:56] Speaker 03:
I think it's in 3583i that says a period reasonably necessary.

[00:40:02] Speaker 03:
But that's after the

[00:40:04] Speaker 03:
So there is a reasonableness requirement in any event to have proceedings continue after the period of supervised release has expired.

[00:40:14] Speaker 03:
So I think I'm arguing – I think that was concluded.

[00:40:17] Speaker 03:
And any ambiguity in that regard I think ought to be akin to the rule of lenity in the – resolved in the defendant's favor when the government took no action afterwards to indicate that it believed

[00:40:30] Speaker 03:
that the restitution obligation was still outstanding.

[00:40:35] Speaker 03:
If I could try to answer a few of the questions that arose, district judges, I think, take a different, and none of this is in the record, but district judges take different approaches to supervised release.

[00:40:47] Speaker 03:
If a defendant is not having any issues, some judges will never see the defendant again, and the term expires, and that's it.

[00:40:56] Speaker 03:
There is a, I think, more,

[00:40:58] Speaker 03:
recent movement for judges to hold status hearings every called just status hearings every 60 or 90 days and usually that will be early in the period of supervised release and if the defendant is doing well, then the then they'll become either infrequent or Just discontinued so that that's generally the way it happens.

[00:41:20] Speaker 03:
I don't agree that

[00:41:23] Speaker 03:
Well, I agree that neither one of us is wrong actually on the question.

[00:41:27] Speaker 03:
There is mandatory revocation for drug

[00:41:33] Speaker 03:
possession.

[00:41:34] Speaker 03:
Um, but but the it says an imprisonment.

[00:41:38] Speaker 03:
But what I'm also arguing is the district court clearly said, um, this pattern that you've engaged in failing to pay restitution, committing a crime, clearly failing to pay restitution was a part of the reason the district for the district court's, um, length of the sentence.

[00:41:55] Speaker 03:
We don't know how much of that because the district judge didn't indicate.

[00:41:59] Speaker 03:
But to say that the only reason

[00:42:02] Speaker 03:
I'm not saying that revocation wasn't mandatory, well, putting aside the fact that there was no jurisdiction to do that in any event.

[00:42:11] Speaker 03:
But if there was jurisdiction, yes, revocation is mandatory for a drug offense like that.

[00:42:18] Speaker 03:
But at the same time, the district court clearly, the first thing he said was, you're a patent of failing to pay restitution, and this is why I'm imposing this sentence of this length.

[00:42:28] Speaker 03:
You talked about in 2016.

[00:42:30] Speaker 03:
This is the 2016 when he actually sentenced him.

[00:42:32] Speaker 03:
Yes.

[00:42:33] Speaker 02:
What do you make of Ms.

[00:42:34] Speaker 02:
Naik's point that maybe the house arrest terms were in fulfillment of the mandatory incarceration requirement for the earlier drug offense?

[00:42:47] Speaker 03:
Well, I'll say the same thing again.

[00:42:48] Speaker 03:
He said for your conduct and knowing that

[00:42:54] Speaker 03:
It's not clear, of course, that Maryland charges have been dismissed.

[00:42:58] Speaker 03:
If it was mandatory at that time, certainly nobody said it was mandatory at that time, but if it was, that doesn't mean that the restitution didn't play a role in that and was part of that and was part of the resolution of it.

[00:43:11] Speaker 03:
So I don't think you can, especially the way the district judge dealt with it here, I don't think you can separate the two and say he imposed the sentence solely because of the drugs.

[00:43:22] Speaker 03:
In fact, when everything he said was to the contrary, he concentrated on the restitution.

[00:43:27] Speaker 03:
I did just want to say, too, the government said that Mr. Holman made no restitution payments.

[00:43:35] Speaker 03:
As you pointed out earlier in the

[00:43:38] Speaker 03:
September 2014 petition, it clearly said that he had paid $1,100, including $200.

[00:43:46] Speaker 03:
These payments were coming in some time.

[00:43:49] Speaker 03:
And a matter of fact, Mr. Holman said before he was sentenced, whenever I can, I come in here and drop it off at the clerk's office.

[00:43:58] Speaker 03:
I pay whenever I can.

[00:44:01] Speaker 03:
But because the district judge made no inquiry and treated it as just an automatic violation of

[00:44:08] Speaker 03:
supervised release.

[00:44:09] Speaker 03:
We don't know.

[00:44:10] Speaker 03:
The record clearly shows that he paid $1,100 somewhere along the line.

[00:44:15] Speaker 03:
When and how, there's no, because the district court didn't make the required inquiry, we don't know the answer.

[00:44:21] Speaker 03:
But the restitution payments, Mr. Holman himself said, I was just made a payment recently before he was sentenced.

[00:44:30] Speaker 03:
I don't think it's true that the record shows that he didn't make any payments.

[00:44:34] Speaker 02:
The government argues that Mr. Holman has waived his argument with respect to the scope and meaning of 3583-I.

[00:44:40] Speaker 02:
If we were to decide that the summons was still available, do you think we would need supplemental briefing on that?

[00:44:48] Speaker 02:
Or have you waived it?

[00:44:49] Speaker 02:
Why not?

[00:44:51] Speaker 02:
You disagree with the circuit cases going the other way, but you don't say much else.

[00:44:55] Speaker 03:
Because of the way this case was, because of the sentence, it was set up with memorandum of law with a 20-page limit, which didn't allow much room for... I would ask for supplemental briefing if the court thinks that I've waived the issue of whether Presley and Naranjo and Edwards were correctly decided.

[00:45:13] Speaker 03:
There just wasn't room.

[00:45:14] Speaker 03:
Judge Garwood's dissent in Naranjo obviously is what

[00:45:17] Speaker 03:
As I pointed out, relied upon that the dissent had it correctly.

[00:45:23] Speaker 03:
So yes, there was a 20-page limit, and it frankly, in all honesty, was not enough room to go into any detail, and which is in a recent and lengthy opinion.

[00:45:35] Speaker 03:
So I don't think I've waived that issue.

[00:45:37] Speaker 03:
I've pointed it out.

[00:45:38] Speaker 03:
And I said, Judge Garwood, the dissent in Naranjo correctly pointed out that it was wrongly decided.

[00:45:44] Speaker 03:
The fact that there wasn't room in the page limits for these types of memos, given the expedited nature of the case.

[00:45:53] Speaker 02:
Is Mr. Holman – has he served the four months?

[00:45:55] Speaker 03:
He's in custody now serving the sentence.

[00:45:59] Speaker 03:
I think he's got about a month left or less.

[00:46:02] Speaker 03:
I think he's got about, but then he has the supervised release to follow that, yes.

[00:46:08] Speaker 03:
But he served, I think about three, I think he went in at the end of October.

[00:46:15] Speaker 03:
So I think he served almost three months of it.

[00:46:20] Speaker 01:
All right.

[00:46:21] Speaker 01:
Thank you, Mr. Kramer.

[00:46:23] Speaker 01:
The case will be submitted.