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Case number 13-3010, United States of America v. Kamal King Gore Appellate.

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Mr. Kramer for the appellate, Ms.

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Park for the appellate.

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

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First, I apologize for my attire and appreciate the Court's consideration of my limited wardrobe at this point in my life.

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So thank you.

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The government violated the debriefing letter in this case not once but twice, first in the written sentencing submission to the district court, which appears in page 63 of the appendix.

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which said during the pendency of this case, the defendant admitted to previously buying one quarter kilogram quantities of cocaine and cooking that into crack cocaine.

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So the defendant's not a low-level street dealer, but a person who engages in wholesale distribution.

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But it was really at the sentencing itself that the government

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Its allocution was about four pages, a little bit more than half a page.

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And then there was a question at the end by the district court about the career offender.

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But the allocution itself was about a little less than four pages.

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Was the debriefing transcribed or otherwise recorded?

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I have not seen either a transcription or a recording of it.

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his first council before the debriefing or the second council after the debriefing?

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Well, I would say two or maybe more ways.

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The primary way, of course, is that the government, in its brief, has conceded that it came from the debriefing.

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We have no obligation to accept a government concession.

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I understand the Supreme Court law on that, particularly in a criminal case.

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No, I understand no obligation.

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Well, I think we're at concession as a concession of fact like that, that that's the only place it could have come from.

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I think that it's different.

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But it's not.

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I just gave you a possibility.

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And actually, there's a third possibility.

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The first possibility is that there were representations made before the debriefing and so it wasn't covered by that agreement.

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The second is there were representations made after the debriefing so it wasn't covered.

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And the third is what occurred at the sentencing hearing where the attorney, the second attorney for the defendant said that the prior offenses involved 60 grams

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And we know that the current offenses involved about 110 grams.

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So that comes to about 170 grams, which is close to a quarter of a kilo.

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Well, I think the relevant conduct involves... That representation by the attorney, by the way, that the second defense attorney at trial seems... I can't find any support for that.

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For which part?

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I'm sorry.

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He said it was 60 grams.

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It was in the prior offenses.

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Right.

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I think that appeared in the pre-sentence report.

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I didn't see it.

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Maybe right now.

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But that's not what he... I think his relevant conduct came out to that in the prior offense.

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But let me just finish this off with another question for you that I hope you'll address.

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If the debriefing was to transcribe

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or recorded, and nobody's seen what happened there, then how in heaven's name could the judge have known during the sentencing hearing that the information she was being told stemmed from an unrecorded debriefing?

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Oh, I don't think she had any idea about that.

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A matter of fact... So we're not the only... So she couldn't have been committing her art.

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No, no, no.

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Relying on the information is the problem in reaching the sentence.

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You have to show a reasonable probability less than a preponderance that the sentence could have been different if this information had not been presented to her.

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If the error hadn't occurred.

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Yeah, I know.

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How could she have committed an error?

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And the second thing is – now I'll shut up in a minute.

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Are you talking to me or?

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No, no, I'm talking to myself.

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The second thing is that if it wasn't recorded and it wasn't transcribed, how would the second defense counsel know what went on?

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No, I think – I think you're right on – So that – how could that second defense counsel be ineffective?

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I think you're right on several different levels, but not on the ultimate result.

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I don't think the judge had any idea that this was – this material came from a debriefing that the government had promised not to use in any way against Mr. Kingor.

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So it wasn't that the district court, in a sense, committed.

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The district court didn't commit the error.

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The government committed the error by not following through on its promise in the debriefing letter, not to use this material instead, using it twice.

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I think it wouldn't be extremely unusual to record or transcribe a debriefing.

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They're usually just notes.

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The parties take notes.

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The defense lawyer is there.

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But I think, as I said, the government's concession that it could not have come from any other place, that it did come from the debriefing.

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And as a matter of fact, at the sentencing on page 18 of the transcript, the government says, we know by his own admission.

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That seems to me to be clear that it comes from the defendant himself and not from his lawyer at some other point.

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There is certainly nothing in the record that would indicate that it came from the lawyer.

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That would be even more unusual for the lawyer

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to make a statement like that, either before or after the debriefing.

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And the government, as I said, has conceded that in this case, that it comes, that the material that was mentioned at sentencing and in the sentencing memo comes directly from the debriefing of the defendant.

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So nobody's raised that as an issue in the briefs.

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Let me put it that way.

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And the use of the words, by his own admission, seems to me to make it clear that it could not have come from anywhere else.

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So in the four pages of the post-war... Suppose you just had a sentencing where material that is in no way in the record is injected by government counsel and nobody notices.

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Is that not reversible just because the district judge hasn't mastered the record fully enough to know that there's no basis for this?

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Well, a defense lawyer would have to object, I think.

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But it could be cognizable on plain error, because there is a reliability standard, too, that the district court has to rely upon.

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The evidence upon which the district court relies has to be reliable.

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So the government could say something that's not in the record.

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But it would have to be supported by reliable evidence.

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They would have to give the basis for it.

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Whether the district court knows it's in the record or not, or what supports it, there has to be some reliability.

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And it would be up to the defense lawyer to object that there's no basis for that.

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It could also be cognizable on appeal as plain error, as this case is.

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So following up on those Randall's questions, so when you're conceiving of the error,

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Are you characterizing the error as the reliance on evidence that shouldn't have been relied upon because there was an agreement not to rely on it?

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I think that's the test, right?

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The error is the government breaching the plea agreement.

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And then I think it's not the error that the district court relied upon, but how you determine if the outcome of the case would have been

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different, the remedy.

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Do we usually consider, do we usually conceive of errors as being something that the government does, or do we usually conceive of errors as being something that the district court does?

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And it may be that errors, that if it's the latter, I'm not sure that it is, but if it is the latter, it may be that the district court can be seen to have committed an error, and even a plain error, notwithstanding that it's perfectly understandable why the district court

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would have done that subjectively.

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It's not as if it should have been obvious to the court at the moment that an error was being committed, but it turns out that it is obvious that an error was committed.

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I mean, it may be just a matter of semantics.

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Let me put it that way.

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I'm not saying the district court, nobody told the district court, wait a minute, this is off limits, we shouldn't have heard.

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And so her error was,

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It's hard for me to say she made an error, but the error is, of course, the main error is the government's breach in the plea agreement.

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And then her reliance on it in issuing the sentence is not so, I don't know if you call that an error or just the fact that the remedy for the government's breach is that there was reliance upon the material.

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I mean, there's one context in which we apply plain error.

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Although the trial judge is completely innocent of anything.

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And that is when the law has changed.

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But we apply the law as it stands when we, actually when we rule, I guess, not when we hear the case.

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But the judge had no reason at all to anticipate the new law.

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So I mean, it's a little odd to call it plain error by the judge.

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But we certainly do that in that context.

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And I think if you read the pocket case, the Supreme Court decision, which says plain error applies, it was the same as in this case.

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There was a breach of the plea agreement.

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So it wasn't really that the district court did anything

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to use the wrong in a pejorative sense.

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But what they did was listen to the government's allocution and take that into account.

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And well, they pick it.

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They said it didn't matter.

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But one way to think about it is suppose suppose the government had made the argument that it did.

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And then the district court

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says in rendering the sentence, I'm not going to rely on the particular evidence that the government referred me to because that doesn't seem like something I should rely on, and I'm going to go ahead and administer a sentence.

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I don't think there would be a question that there was an error, even though the government committed an error.

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It would have to have been something that the district court, in fact, did something with.

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So the error is the district courts, as Judge Williams said, it can still be an error even if it's entirely innocent, but the error comes from the district court's action.

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It's a little complicated by the fact that this is in the breach of the plea agreement, because that's exactly what happened in San Abello.

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The government breached the plea agreement, the lawyer pointed it out, and the judge in Santa Bella said, I don't care what the government said, this guy's criminal record is so terrible, I'm going to give him a year, and I'm ignoring what the government said.

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And the Supreme Court reversed it.

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So it doesn't fit neatly into a category like that.

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I think the breach of a plea agreement is

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in a sense, kind of a separate category of error.

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It's the error by the government in doing it and inducing, maybe, reliance upon the district court in acting upon it, I guess.

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It seems to be because that's exactly what happened at Santa Bella when they sent it back.

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In Wolf, in this court's case in Wolf, the defendant, the government said they would ask about

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of responsibility.

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And they did not, in light of the fact that the defendant lied about his name, lied about his criminal record, and lied about other names he had used.

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And they agreed on appeal that it had to be sent back.

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The only question before this court was, does plain error, or should it go to a different judge when it's remanded?

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And Judge Randolph, of course, said, I would send it back to a different judge in every case where there's a breach of the plea agreement.

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I don't understand that.

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If we write an opinion agreeing with you, whichever judge gets the case back is going to know the same facts that Judge Collier knew

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during the sentence.

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I have to say that was my question.

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Well, I mean, that's not the way the courts view it.

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I mean, your dissent in Wolfe's where balancing imponderables, in other words, by applying no real test at all, you said in Wolfe, and then it should automatically go to another judge.

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You disagree with the majority.

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But the majority involved said, we determine on a case-by-case basis.

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I don't see how you could send it back to the same judge in this case.

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Now, hopefully, another judge.

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What is your answer to the question that the mental gymnastics appear to be substantially the same, whether it's Judge Collier or a new judge?

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I guess two things.

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First of all, the government won't say this at the resentencing.

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There'll be a full resentencing.

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And the new judge will not hear

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Well, that's the part you hope maybe they didn't.

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Once they see it's about a breach of a plea agreement, they might not read it.

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And I think there probably would be some discussion about that at a resentencing.

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So I don't mean my time to be.

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I think the other issues raised are equally important, including the substantive reasonableness of the sentence in light of the Sentencing Commission's new report saying that career offender sentences for drug offenders are totally out of proportion with career offender sentences.

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Is there any way that we would know whether this defendant was represented by the public defender office originally?

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Yes.

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and also represented by the public defender during the debriefing?

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Yes.

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Okay.

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And then got new counsel.

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Yes.

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Retained counsel.

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And suppose that the public defender who was there at the debriefing never informed the new counsel what went on.

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That would not, well.

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Would that mean that the public defender was an ineffective assistance?

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I don't know of the

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There's certainly an ethical duty to inform new counsel of journalists.

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But we don't know when that was done.

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It's not in the record.

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In an ordinary situation, our file would be turned over to the new lawyer, which would, of course, include, as one of the most prominent documents, the debriefing letter.

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But that would be in the ordinary.

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But there's nothing in this record specifically about that.

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No transcript or video of the debriefing.

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not, again, not ever done that I can recall.

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There would have been notes of the debriefing in the file, but I don't ever recall a debriefing being videotaped or a court reporter there for a debriefing, maybe in a... Is this like what we used to call Queen for a day?

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Yes, yes, yes, yes.

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But in any event, the breach of this plea agreement was quite severe.

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Let me put it that way.

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It went from the amounts in this case to quarter kilograms amounts.

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And the money amount was, I think, 20 times what the money amount.

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And as I said, it went on for more than half a page of them.

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for page out.

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You said you mentioned the briefing letter agreement.

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It specifically says that cast a guard doesn't apply.

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Yes.

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And it also says that information that the defendant gave to the prosecutor.

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could be used to develop sources.

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Yes.

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Right?

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But none were, because it says quite specifically, the defendant wasn't a retail-level narcotics trafficker.

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We know by his own admission that he'd previously bought up to a quarter kilo of cocaine.

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Suppose the government did an investigation after the debriefing and found accomplices

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who said to the government, and the government was looking to find a conspiracy, and said to the government that, well, the defendant told us he bought up to a quarter of a kilo.

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Then in that case, the prosecutor was perfectly within the agreement by mentioning it.

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You would have a much different case, clearly.

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But we don't know whether that happened or not.

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All I can say again is the government has conceded and it never provided.

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When it said to the district court he had access to amounts, he cooked the powder cocaine into crack cocaine, and then they gave the amounts of money that once it's cooked, it can value up to $35,000.

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All of that was prefaced by them saying, we know by his own admission.

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There was no indication of any other source for this, nor has the government challenged in its brief, or given any indication in its brief, that there was any other source other than this.

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Can I take it the only entity or individual that would know what the source of the information would be, the prosecutor that made the statement?

[00:17:42] Speaker 01:
Yes, and there was nothing in the record one way or the other, other than the government's brief conceding that it's a... So it would be the government that has the relevant knowledge.

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Yes.

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In other words... Well, that's what I'm sorry.

[00:17:54] Speaker 01:
Absolutely.

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When I keep saying they've conceded it, they're the ones who know where the information came from.

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So when it was said

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both times by the same prosecutor and the same prosecutor who signed the debriefing letter.

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And the government says in its brief, this is a breach of the plea agreement.

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I don't see where else it could have come from in the brief of the breach of the debriefing briefing letter.

[00:18:19] Speaker 01:
I'm sorry.

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It also technically is incorporated into the plea agreement ice.

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But and I don't think again, the semantics on that.

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I don't think it matters which which one you call it a breach of it.

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Is it clearly a breach?

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I would ask her on us to send it back for re-sentencing before another judge.

[00:18:37] Speaker 01:
Thank you.

[00:18:38] Speaker 04:
Thank you.

[00:18:40] Speaker 04:
We'll hear from the government.

[00:18:46] Speaker 00:
May it please the court and park on behalf of the United States.

[00:18:49] Speaker 00:
The government does concede that it breached the debriefing and plea agreements, but remand for re-sentencing is not required, they argue, because the appellant has failed to establish prejudice under the plain error standard.

[00:19:01] Speaker 00:
Judge Coller did not rely on appellants debriefing statements.

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She never explicitly mentioned them in her findings.

[00:19:08] Speaker 03:
She echoes it.

[00:19:09] Speaker 00:
I'm sorry?

[00:19:10] Speaker 03:
She echoes the government counsel's statements.

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In terms of using the term wholesaler?

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Wholesale, and then the impression that there was never a day that he was out of prison that he wasn't selling.

[00:19:25] Speaker 00:
But that information came mainly from his prior criminal history, the instant offense, and what the defendant said during the recorded conversation with the CI in this case.

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If you look at where the judge first uses the term wholesaler, you'll see that she's talking about it within the 3553A factor of seriousness of the instant offense.

[00:19:44] Speaker 00:
And she says, the quantices in this case were large, and as a result, I agree with the government's contention that Pellant was a wholesaler.

[00:19:54] Speaker 02:
And if you also look at... In the recorded conversation, the defendant also said, I can get you more, didn't he?

[00:20:01] Speaker 00:
Yes, he said, in the recorded conversation with the CI in the instant offense, where he sold the 60.6 grams of cocaine base,

[00:20:08] Speaker 00:
He indicated that he could set up larger drug deals and other drugs, including PCP.

[00:20:14] Speaker 00:
So it wasn't this information, the debriefing statements that the court relied on.

[00:20:18] Speaker 00:
If you actually know... Well, how do we know?

[00:20:20] Speaker 04:
I mean, I think that it's possible.

[00:20:22] Speaker 04:
It's definitely possible that it wasn't relied on, but it seems to me it's at least... Would you agree that it's at least possible that it was relied on?

[00:20:28] Speaker 04:
It is possible, but the standard... So then once you say it's possible, if I'm understanding the standard, it doesn't have to be more likely than not.

[00:20:35] Speaker 00:
Yes.

[00:20:36] Speaker 04:
Right.

[00:20:36] Speaker 04:
So then we're talking about something south of more likely than not and something north of inconceivable.

[00:20:44] Speaker 04:
And once we're talking about possible, how do we know that it's not possible enough given the fact that the language wholesaler was repeated directly from the government's argument at the precise juncture that you acknowledged was grounded in the debriefing?

[00:21:00] Speaker 00:
Well, Your Honor, the standard is reasonable probability or reasonable likelihood.

[00:21:04] Speaker 00:
So it has to be reasonable.

[00:21:05] Speaker 00:
And all we can tell from the record is what the prosecutor said about the wholesale amounts and what the district court said.

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We have to look at what she actually gave as her reasons for her sentence.

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Now, the district court in this case, Judge Collier, it was not one of these sentences where she just said, I'm going to sentence you to 162.

[00:21:22] Speaker 00:
She gave a full-fledged explanation, went through each of the factors.

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So if you look at what the government does, and Mr. Kramer,

[00:21:30] Speaker 00:
If you look through pages 15 to 19, the government begins her elocution by going through the sentencing transcript, January 30, 2013.

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The government begins not with a debriefing statement.

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She begins, as the district court began with, his criminal history.

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And she says, look.

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When he was in jail, when he was not in jail, he has always been selling drugs.

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And this is what she uses to support that.

[00:22:04] Speaker 00:
He has two prior felony convictions.

[00:22:06] Speaker 00:
She emphasizes that he was, in his DC case, he was on release for one month.

[00:22:12] Speaker 00:
He was then picked up in his West Virginia federal case and included in that case, he had 66 grams of crack cocaine in his vehicle.

[00:22:21] Speaker 00:
And then he says,

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He goes to jail for seven to eight years on these two prior offenses.

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The AOSA then says, he comes right back out.

[00:22:32] Speaker 00:
Three months later, he sells 60 grams of crack cocaine to the confidential informant.

[00:22:37] Speaker 00:
And all this shows that when he was not in jail, he was selling.

[00:22:41] Speaker 00:
Then, if you look at page 17, she goes into his arrest.

[00:22:45] Speaker 00:
And not only do you have

[00:22:48] Speaker 00:
His instant offense, at the time of his arrest, 20 months later, he's found with additional drugs.

[00:22:52] Speaker 00:
And in PSR, it indicates 30.3 grams of cocaine hydrochloride, and then about 11.8 grams of crack cocaine.

[00:22:59] Speaker 00:
And then she moves on to the debriefing statement.

[00:23:04] Speaker 00:
She goes on to, she moves from, he's a repeated drug dealer.

[00:23:07] Speaker 00:
You can tell by his criminal history.

[00:23:09] Speaker 00:
Every time he's not in jail, he comes right out, he sells again.

[00:23:11] Speaker 00:
And this is on page 18, about line seven.

[00:23:14] Speaker 00:
She says the defendant wasn't a retail-level narcotics trafficker.

[00:23:18] Speaker 00:
Now, she says then, she goes on, and this is a portion of the government's allegation that Mr. Kramer emphasizes, we know by his own admission that he had previously bought up to a quarter kilo of cocaine.

[00:23:28] Speaker 00:
And then she says at the end about page, line 19, the defendant was a wholesaler.

[00:23:33] Speaker 00:
But she pivots right here from talking about the debrief statements.

[00:23:37] Speaker 00:
And she then says, at lines 19 to 21, even the amount sold to the special employee here, the 60 grams, that's not a retail amount.

[00:23:45] Speaker 04:
Right.

[00:23:46] Speaker 04:
She does.

[00:23:46] Speaker 04:
But it seems to me, I mean, it's always hazardous to read a transcript as if it were a statute, since it's occurring in real time.

[00:23:54] Speaker 04:
But even just looking at the precise language that was used,

[00:23:57] Speaker 04:
That critical passage on page 18 from line 7 to line 21, the defendant wasn't a retail-level narcotics trafficker.

[00:24:05] Speaker 04:
How do we know this?

[00:24:06] Speaker 04:
We know by his own admission, and then that's all about the quarter kilo that was raised in the debrief.

[00:24:11] Speaker 04:
And then the conclusion is the defendant was a wholesaler.

[00:24:14] Speaker 04:
And then the statement that you're highlighting, even the amount sold to the special employee, here are the 60 grams, that's not a retail amount.

[00:24:20] Speaker 04:
So it's absolutely indisputably true, as you say, that you could reach the conclusion that he's more than a retail-level person based on the 60 grams alone, and that's the point the government was making.

[00:24:32] Speaker 04:
But the fact that the government makes it as an even-if statement

[00:24:35] Speaker 04:
It's really, it seems like by the nature of the own argument, the load-bearing weight is placed on a quarter kilo.

[00:24:41] Speaker 04:
And then there's another statement, you could even call it an afterthought, but I don't want to artificially minimize it.

[00:24:45] Speaker 04:
But it's a statement that comes after that says, everything I've said is why he's obviously a wholesaler.

[00:24:50] Speaker 04:
And you can even reach that conclusion based on this offense alone.

[00:24:53] Speaker 04:
That's absolutely what it says, and it's definitely true that the court could have done that.

[00:24:57] Speaker 04:
But what we have to assess is whether there's a reasonable likelihood that the court relied on what the government itself characterized as bearing load-bearing weight, which is the quarter kilo.

[00:25:06] Speaker 00:
Yes.

[00:25:06] Speaker 00:
And, Your Honor, and what I'm trying to say is that she didn't just rely on the debrief statement to

[00:25:12] Speaker 00:
support, there are two aspects of the argument, that he's a repeated drug dealer, and that all had to do with criminal history, had nothing to do with the amounts of drugs he had.

[00:25:19] Speaker 00:
And, you know, both federal cases involved about 60 grams of crack cocaine.

[00:25:23] Speaker 00:
Then the second part of it is a wholesaler, that he was a wholesaler, not a retail level drug dealer.

[00:25:28] Speaker 00:
And I want to emphasize that the reason why the government was making this argument was because in the defendant's sentencing memorandum,

[00:25:34] Speaker 00:
Mr. Benowitz actually argued that my client is a low-level drug dealer and he sells drugs out of his own, to support his own addiction or habit.

[00:25:43] Speaker 00:
So that's the picture he was trying to paint.

[00:25:46] Speaker 00:
The government came back in the sentencing memorandum and the reason why it referenced the debrief statement was because she knew from the defendant's own mouth that he was definitely not a street-level dealer just trying to

[00:25:58] Speaker 00:
cover his addiction.

[00:26:00] Speaker 02:
Then why didn't you argue that the debriefing letter wasn't breached?

[00:26:06] Speaker 02:
Because if what you're saying now is that what he did was represented in the pre-sentence interview, represented something that he contradicted in the debriefing, then why didn't you make that argument?

[00:26:24] Speaker 00:
We conceded, Your Honor, because if you look at the debriefing agreement, look at the letter of it, and technically it says if your client or a witness makes a statement at trial or any other proceeding that directly contradicts statements your client made in his debriefing, then the government can cross-examine.

[00:26:46] Speaker 02:
The pre-sentence interview is not a proceeding?

[00:26:49] Speaker 00:
It wasn't the pre-sentence interview.

[00:26:51] Speaker 00:
I'm not sure where Mr. Benowitz... Mr. Benowitz, in the sentencing memorandum, just said his client is a low-level drug dealer.

[00:27:03] Speaker 00:
who is selling because he wants to.

[00:27:05] Speaker 02:
Oh, it wasn't in the pre-sentence.

[00:27:06] Speaker 00:
No, it wasn't in the pre-sentence report.

[00:27:08] Speaker 00:
No, no.

[00:27:09] Speaker 00:
The pre-sentence report, the defendant just admitted to the statement of the offense, and he said no more on advice to counsel.

[00:27:17] Speaker 00:
So what the government is just trying to say is the prosecutor was responding to the representations by counsel.

[00:27:23] Speaker 02:
Sounds like his defense counsel, the second defense counsel, didn't know what went on in the debriefing.

[00:27:28] Speaker 00:
It's not clear in the record, but he was trying to paint his client as a low-level drug dealer, and that's why the government came back.

[00:27:36] Speaker 02:
How do you know that the quarter kilo business was mentioned in the debrief?

[00:27:42] Speaker 00:
Your Honor, for two reasons.

[00:27:44] Speaker 00:
One is by negative inference.

[00:27:45] Speaker 00:
I looked through the entire trial file and all the transcripts.

[00:27:49] Speaker 00:
It was never on the record.

[00:27:50] Speaker 00:
And the prosecutor says his own admission.

[00:27:53] Speaker 00:
There were no such admissions that I could see on the record.

[00:27:55] Speaker 00:
And secondly, we have debriefing notes.

[00:27:57] Speaker 00:
The debriefing was not recorded or transcribed, but there are notes.

[00:28:01] Speaker 00:
Did you look at them?

[00:28:03] Speaker 00:
Yes.

[00:28:06] Speaker 00:
Obviously, in a briefing this appeal, we've also talked to the prosecutor.

[00:28:09] Speaker 00:
But we are conceding that this information came from the debriefing, not from any other source.

[00:28:17] Speaker 00:
And to get back to Judge Sreenivasan's question about reasonable probability, we're saying, look, it was a piece of the government's argument.

[00:28:26] Speaker 00:
But there was a whole lot of other stuff that she talked about between pages 15 to 19.

[00:28:32] Speaker 00:
The debrief statement is only

[00:28:36] Speaker 00:
about maybe more than half a page, but she goes on to say, not only was the amount 60.6 grams, consistent with being a wholesaler, but he also said in that recorded conversation, recorded drug deal, that he could get even more, bigger amounts.

[00:28:51] Speaker 00:
And then at the time of his arrest, he had more.

[00:28:54] Speaker 02:
What page is that of the Psycho-Securitas?

[00:28:57] Speaker 00:
Page 18.

[00:28:58] Speaker 00:
I also want to point out.

[00:28:59] Speaker 02:
Page 18 is the prosecutor's argument.

[00:29:01] Speaker 00:
Yes, I'm going through the prosecutor's argument.

[00:29:04] Speaker 04:
The she you're referring to is the prosecutor.

[00:29:06] Speaker 04:
Yes, the prosecutor.

[00:29:08] Speaker 00:
And so this is what she said about being a wholesaler.

[00:29:11] Speaker 00:
Now, if you look at what the court, when the court actually references the term wholesaler, I would direct the court to page 26.

[00:29:18] Speaker 00:
And this is, from my reading, the first instance where she brings up the term wholesale.

[00:29:24] Speaker 00:
The first thing under the statute the court considers, and this is at lines 11 through about 16,

[00:29:29] Speaker 00:
the seriousness of the offense.

[00:29:31] Speaker 00:
And the offense itself here is pretty serious because the quantities are large and as the government argues legitimately, Mr. King Gore was a wholesale trafficker, not just a real retail trafficker in drugs.

[00:29:43] Speaker 00:
Then she's skipping to line 18.

[00:29:46] Speaker 00:
That means it's a serious offense and suggests a higher sentence.

[00:29:48] Speaker 00:
So her finding on wholesale is within the context of the seriousness of the instant offense.

[00:29:55] Speaker 00:
She does not make any mention of the debriefing statements.

[00:29:59] Speaker 04:
The second time she uses the term wholesale... But I think the fact that it's discussing the seriousness of the offense isn't to the exclusion of reference to prior conduct.

[00:30:10] Speaker 04:
It's often the case under the law that the seriousness of the instant defense is informed by previous conduct, right?

[00:30:18] Speaker 04:
That's what three strikes laws are about.

[00:30:22] Speaker 04:
That's how the Supreme Court discusses three strikes laws, is that the instant offense is made more serious because the individual is a recidivist.

[00:30:32] Speaker 00:
Yes.

[00:30:33] Speaker 00:
And his prior convictions, all that the court knows about, which she went through in great detail, were his DC case and his federal West Virginia case, which also involved about 66 grams of crack cocaine.

[00:30:43] Speaker 04:
Right.

[00:30:44] Speaker 04:
And if you're drawing a distinction between convictions and unconvicted but admitted to conduct, it just seems to me that if, as a matter of theory, prior convictions informed the seriousness of this offense, then prior conduct as admitted to could equally inform the seriousness of this offense.

[00:30:59] Speaker 04:
So she could be referring

[00:31:01] Speaker 00:
I understand what the court is saying.

[00:31:03] Speaker 00:
So it's definitely a possibility.

[00:31:04] Speaker 00:
So you're saying within this discussion, she could have been in the back of her mind thinking about the admitted prior conduct.

[00:31:10] Speaker 04:
Right, particularly because she uses the word wholesale.

[00:31:12] Speaker 04:
She distinguishes retail from wholesale.

[00:31:14] Speaker 04:
And with the government counsel at argument, distinguish retail from wholesale, what was between retail and wholesale is the discussion of the court.

[00:31:22] Speaker 00:
And there's just other stuff, the incident defense and stuff that the information that the appellant is not contesting.

[00:31:28] Speaker 00:
All I can say is,

[00:31:30] Speaker 00:
If it had been a consideration, the court would have said it.

[00:31:34] Speaker 00:
This was not a judge that was doing a sentencing where she decided 162 months, it meets all the factors, I've considered the factors, and let's put an end to this.

[00:31:43] Speaker 00:
This judge took a lot of time to go through his criminal history to figure out that she wanted to sentence him to more than seven to eight years because that was not enough to deter him.

[00:31:54] Speaker 00:
And she was trying to figure out a range below the career offender guideline of 188.

[00:31:58] Speaker 00:
And she was very detailed in her findings.

[00:32:02] Speaker 00:
And it was not a superficial sentencing.

[00:32:05] Speaker 00:
So all I can say to the court is, is it possible?

[00:32:07] Speaker 00:
Sure.

[00:32:07] Speaker 00:
Does the record show that there's a reasonable probability that this debriefing statement affected her sentence?

[00:32:12] Speaker 00:
No.

[00:32:13] Speaker 00:
Because we have to see what she actually did.

[00:32:15] Speaker 00:
And what she actually did was, at the very beginning, when she first starts talking to Mr. Benowitz.

[00:32:21] Speaker 02:
What's a reasonable probability?

[00:32:24] Speaker 02:
A reasonable probability is usually expressed in percentages.

[00:32:29] Speaker 00:
Yes.

[00:32:31] Speaker 00:
A reasonable probability or a reasonable likelihood is the way the court characterizes it.

[00:32:36] Speaker 02:
That doesn't change anything.

[00:32:37] Speaker 00:
No, no.

[00:32:38] Speaker 00:
I understand.

[00:32:38] Speaker 00:
I mean, it's a term that the court, this court, is familiar with using all the time.

[00:32:43] Speaker 02:
It's a reasonable word that tells you virtually nothing because it's totally circular.

[00:32:48] Speaker 02:
A reasonable probability is one that

[00:32:52] Speaker 02:
makes you not confident in the result.

[00:32:56] Speaker 02:
And you're not confident in the result because it's a reasonable probability that it was wrong, which tells you nothing.

[00:33:03] Speaker 00:
Your Honor, then I would... It's hard to say it tells you nothing because we spend a lot of our time oftentimes talking about reasonable probabilities, both in the stripling context and it's a standard that's quite familiar in the area of the law.

[00:33:18] Speaker 00:
It is not concrete.

[00:33:20] Speaker 00:
It is not certainly a certainty.

[00:33:22] Speaker 00:
I wish there was a formula that we could plug in and we could get a reasonable probability.

[00:33:25] Speaker 03:
Because that wouldn't actually help that much, because none of us could possibly know whether it reached 45%, 35%, or 55%.

[00:33:33] Speaker 00:
Exactly.

[00:33:35] Speaker 00:
And so all I can do to the court is to say, if you look at this record and look what the court said, and look what she emphasized in the sentence, her big emphasis, and this is what I was trying to say, is when she begins this, when she's talking to Mr. Benowitz at the beginning of the sentencing, she says,

[00:33:52] Speaker 00:
Appellant's, quote, criminal history, quote, is really the critical thing here.

[00:33:56] Speaker 00:
And then she goes on to review his critical history.

[00:33:58] Speaker 00:
And that's at page five of the sentencing transcript.

[00:34:01] Speaker 00:
And then if you go look at when the judge talks in the middle, she repeatedly emphasizes the fact that once the appellant got out of jail after serving seven to eight years and two prior drug offenses, he comes out three months later and he starts selling 60.6 grams of cocaine.

[00:34:19] Speaker 00:
And then on page six, right after she says a critical thing here is his criminal history, and then he got out of jail, and he's hardly out, and he's back into drug dealing.

[00:34:29] Speaker 00:
And then on page eight, he goes to jail for seven years.

[00:34:32] Speaker 00:
He comes out, and in three months, he's back to it.

[00:34:35] Speaker 00:
Then page 13, his last sentence was seven years, and he came right out and began dealing in drugs again.

[00:34:40] Speaker 00:
And then on page 26, when she's doing her

[00:34:43] Speaker 00:
ruling, actually sentencing the defendant.

[00:34:46] Speaker 00:
He's discussing the factor of promoting respect for the law.

[00:34:49] Speaker 00:
He, quote, spent almost eight years in jail, returned to the community, and almost instantly went back into drug dealing.

[00:34:55] Speaker 00:
Page 27, discussing the 3553 factor, just punishment for the offense.

[00:35:00] Speaker 00:
We already tried seven years, eight years.

[00:35:02] Speaker 00:
That wasn't sufficient.

[00:35:05] Speaker 00:
Then, 27 to 28, he's discussing deterrence.

[00:35:09] Speaker 00:
to afford adequate deterrence, seven years, eight years, didn't do that.

[00:35:12] Speaker 00:
And then she says, I'm going to give him 162 years.

[00:35:15] Speaker 00:
It has to be something beyond seven to eight years.

[00:35:18] Speaker 00:
Then Mr. Benowitz actually asked the court to reconsider her sentence.

[00:35:22] Speaker 00:
He says, and this is on pages 29 to 30, the amounts in this case were not minimal, but

[00:35:32] Speaker 00:
not to the level that requires 162 months.

[00:35:36] Speaker 00:
And then the judge responds first, well, the full amount here was about 100 and some odd grams.

[00:35:41] Speaker 00:
But then she goes on to say, more importantly, we have a, quote, long running practice and pattern of drug trafficking to which jail time has made no difference.

[00:35:52] Speaker 00:
And I really can't anticipate on this record that Mr. King-Gore will do anything but return to drug trafficking when he's released.

[00:35:59] Speaker 00:
And she concludes by saying, and so I need to protect the community from further crimes.

[00:36:04] Speaker 00:
From the beginning to the middle to the end, her focus is on his repeated drug trafficking.

[00:36:10] Speaker 00:
The amounts are not minimal, but that is not the focus.

[00:36:12] Speaker 00:
And so the government contends that this court can, on this record, find that there was no reasonable probability that the debriefing statements affected the sentence.

[00:36:25] Speaker 00:
If there are no further questions, we'd submit on our briefs with respect to the other issues.

[00:36:31] Speaker 04:
Okay.

[00:36:32] Speaker 04:
Thank you, Council.

[00:36:36] Speaker 01:
First of all, this notion that he talked about distributing more to the person, but 20 months ensued after his car was searched until he was arrested, and he had no further dealings with this person.

[00:36:51] Speaker 01:
So this is a red herring when he talked about, I can get more, but for 20 months he was out and he did no further deals with this person.

[00:36:59] Speaker 01:
But what really

[00:37:00] Speaker 01:
The government's speaking out of both sides of its mouth.

[00:37:02] Speaker 01:
It says there was enough evidence in the record without this statement to show he wasn't a low-level drug trafficker.

[00:37:08] Speaker 01:
And yet they went into great detail about, we know by his own admission, he had bought a quarter kilo.

[00:37:14] Speaker 01:
Then they broke it down how much it was worth, a little bit of an indication of how much money.

[00:37:18] Speaker 01:
A quarter kilo of powder is $8,500 to $9,500.

[00:37:23] Speaker 01:
And once that's cooked in a crack, which we know by his own admission he does, it can value up to $35,000.

[00:37:30] Speaker 01:
He was, and they conclude that with the defendant was a wholesaler.

[00:37:35] Speaker 01:
The district court had never mentioned the word wholesale before that.

[00:37:38] Speaker 01:
Then on page 26, which I read completely opposite of the government, where the district court said, the offense itself here is pretty serious because the quantities were large, and as the government argues legitimately, Mr. King Gore was a wholesale trafficker.

[00:37:54] Speaker 01:
That's a separate, she talks about the instant offense, and then she says, and the government argues he's a wholesale trafficker legitimately.

[00:38:02] Speaker 01:
That's the first time she mentions wholesale.

[00:38:04] Speaker 01:
The government left out on page 20.

[00:38:06] Speaker 02:
Do the guidelines use wholesale versus retail?

[00:38:09] Speaker 01:
No.

[00:38:11] Speaker 01:
No.

[00:38:12] Speaker 01:
They use it, I think, in determining value at one point, but that's in an application note about how to determine value.

[00:38:20] Speaker 02:
The guidelines are based on quantity, right?

[00:38:22] Speaker 01:
Yes, the guidelines are based on the quantity and amount of the drug.

[00:38:25] Speaker 01:
There are some application notes about value, how to determine certain values.

[00:38:32] Speaker 01:
Then again, on page 28,

[00:38:34] Speaker 01:
The district court talks about how he has a drug addiction problem and says that might explain some of his drug dealing, but it doesn't go so far as to explain wholesale drug dealing.

[00:38:46] Speaker 01:
So twice the district court emphasizes this wholesale notion that had never appeared anywhere until the government emphasized it and saying it was by the defendant's own admission on page 18.

[00:38:58] Speaker 01:
Your Honor asked about how do we determine reasonable probability?

[00:39:03] Speaker 01:
And again, I think, as you said in the dissent and Wolf, these are tests that seem to really in the end be no test.

[00:39:13] Speaker 01:
clearly the government felt it was important to take up more than an eighth, I guess, of its sentencing allocution emphasizing this material and calling it to the attention of the district court and using the particular word wholesaler in connection with this amount of drugs, then echoed by the district court in sentencing, this is a wholesale amount of drugs.

[00:39:37] Speaker 01:
That seems to me to actually be more than a

[00:39:41] Speaker 01:
50%, actually, if you have to prove by preponderance.

[00:39:45] Speaker 01:
The fact that the government went to great trouble to do this, and as the government has now admitted, did it specifically to refute the defense sentencing memorandum, which in my mind makes it worse, because they're using information that was never supposed to become before the district court by the way it did.

[00:40:04] Speaker 01:
And yet they've now admitted they used it to refute the defendant's contention.

[00:40:09] Speaker 03:
I'm not sure I see how that makes it worse.

[00:40:11] Speaker 03:
Well, I think if they had just said it... Of course, again, relying on the point that wholesale and retail are pretty slippery concepts.

[00:40:22] Speaker 01:
I think, well, I think it's bad either way.

[00:40:25] Speaker 01:
Maybe, let me put it that way, it's always bad to breach a plea agreement or debriefing letter.

[00:40:31] Speaker 01:
do it twice, once in the sentencing memo and once its sentencing is even worse.

[00:40:35] Speaker 01:
But to go and spend such a large portion of your allocution on it seems to me to be worse.

[00:40:41] Speaker 01:
But now we understand it was done specifically to refute contentions in the defendant's sentencing memo, not just

[00:40:51] Speaker 01:
to call this matter to the attention of the district court.

[00:40:54] Speaker 01:
But the only time the district court used the word wholesale twice was after the government went through this allocution of the improper material.

[00:41:03] Speaker 01:
The district court did it at page 26, and then at line seven of page 28, talked about another reason his drug addiction didn't explain the wholesale drug dealing.

[00:41:17] Speaker 01:
And the only time the government mentioned wholesale was

[00:41:21] Speaker 01:
and talking about the forbidden debriefing.

[00:41:24] Speaker 01:
And again, the part on page 26, first she talks about the offense, and then she says, and as the government argues, he was a wholesale trafficker, not just a retail trafficker.

[00:41:35] Speaker 01:
So I think there's, while some cases might be close, this isn't really a close case on the reasonable probability standard.

[00:41:43] Speaker 01:
Thank you very much.

[00:41:44] Speaker 04:
Thank you, counsel.

[00:41:45] Speaker 04:
The case is submitted.