[00:00:02] Speaker 05:
The first issue I think I should address is whether there was a waiver of the appeal in this case.

[00:00:19] Speaker 05:
This court has obviously held that waivers can be enforced if it's knowing and

[00:00:26] Speaker 05:
if it's a knowing waiver and voluntary.

[00:00:28] Speaker 05:
But this Court has also held that when the District Court's Rule 11 colloquy on the record differs from the written waiver, then this Court will allow the appeal to go forward.

[00:00:43] Speaker 03:
In this case, the judge said... You may not have been stating Godoy exactly right, but I get your point.

[00:00:50] Speaker 03:
It's not that it was different.

[00:00:52] Speaker 03:
It's a mischaracterization.

[00:00:54] Speaker 05:
I think in this case it was a mischaracterization because basically the judge said you may under some limited circumstances have a right to the appeal, to appeal the court's sentence.

[00:01:03] Speaker 03:
And that was right, exactly.

[00:01:04] Speaker 03:
There were limited circumstances under which you could appeal to be three, right?

[00:01:08] Speaker 03:
Right.

[00:01:09] Speaker 03:
So what was wrong about that?

[00:01:10] Speaker 05:
But then the court went on to say

[00:01:12] Speaker 05:
You have the right to appeal the court's sentence, even though you're waiving your right to appeal, under the grounds of reasonableness.

[00:01:19] Speaker 05:
So, at the very least, I think this is ambiguous because the court advises the defendant that he basically can appeal under grounds of reasonableness.

[00:01:32] Speaker 03:
And I think other... Is there anything ambiguous about the written plea agreement?

[00:01:37] Speaker 03:
No, no, there is nothing... So your case rests entirely on the nature of the colloquy?

[00:01:43] Speaker 05:
Exactly.

[00:01:43] Speaker 03:
So if we disagreed with your characterization of the colloquy...

[00:01:50] Speaker 05:
Well, I think at most, exactly, but I think at most it's ambiguous.

[00:01:54] Speaker 05:
And this court has held in numerous cases.

[00:01:57] Speaker 03:
Haven't we?

[00:01:57] Speaker 03:
Ambiguities enough?

[00:01:58] Speaker 05:
I thought we held that there has to be a mis... The Hunt case said the appeal is not barred.

[00:02:03] Speaker 03:
In the Hunt case, the written waiver itself was also ambiguous.

[00:02:08] Speaker 03:
Right, but if the written waiver... And you just said we don't have a written waiver that's ambiguous here.

[00:02:14] Speaker 03:
As I understand your case, it rests entirely on the waiver issue, rests entirely on whether

[00:02:20] Speaker 03:
we think that the colloquy mischaracterized the fundamental nature.

[00:02:27] Speaker 05:
Exactly, exactly.

[00:02:28] Speaker 05:
And I think if what the judge says isn't strictly clear, which I think in this case it wasn't,

[00:02:34] Speaker 03:
I don't think strictly clear is the legal standard that's been required.

[00:02:39] Speaker 05:
Well, I think that it's ambiguous that the appeal should be in the court.

[00:02:45] Speaker 03:
Did it mischaracterize it?

[00:02:45] Speaker 05:
Right, exactly, yeah.

[00:02:47] Speaker 05:
And so that is my argument on waiver.

[00:02:50] Speaker 05:
Getting to the sum and substance of the argument is whether the sentence itself was unreasonable.

[00:02:57] Speaker 05:
uh... argument below uh... you didn't you didn't read raise the waiver issue in your open no i did not i think that's why why because i think that's the government's position to do it because i mean there's been cases where the government totally misses an argument uh... waiver argument and they basically at that point have uh... they they wait that issue i don't think it's the appellant's position raise to raising issue that is did you do you have any cases that support that

[00:03:27] Speaker 05:
not off the top of my head, but if the court liked, I could submit cases.

[00:03:30] Speaker 02:
But it's your position that it just follows from the nature of the waiver as something that's a defense for the government to assert.

[00:03:37] Speaker 02:
It's not jurisdictional.

[00:03:39] Speaker 02:
All right, just something that has or they don't.

[00:03:40] Speaker 02:
Right.

[00:03:41] Speaker 05:
They have to assert it.

[00:03:42] Speaker 05:
And once they've asserted it, then you respond.

[00:03:45] Speaker 05:
And then I respond.

[00:03:45] Speaker 03:
There's a good case for you in the Third Circuit that maybe the government will address, the Goodson case, which says exactly what you're saying.

[00:03:51] Speaker 05:
Oh, good.

[00:03:52] Speaker 05:
Something says something I'm saying.

[00:03:54] Speaker 03:
But it's only the Third Circuit.

[00:03:55] Speaker 03:
No.

[00:03:57] Speaker 03:
No, I'm just kidding.

[00:03:58] Speaker 01:
But at least it's not the night.

[00:03:59] Speaker 03:
That's a great circuit for the record.

[00:04:01] Speaker 01:
Well, for what it's worth, in Frye and Godoy and some of our prior cases, we had the exact same procedural scenario where it wasn't raised in the opening brief.

[00:04:09] Speaker 01:
So even if not ruled, it was at least the practice.

[00:04:13] Speaker 05:
Going on to my main issue is whether the sentence was unreasonable.

[00:04:20] Speaker 05:
It was raised below that the defendant should be sentenced to a lower sentence because of the problem with disparate sentences.

[00:04:31] Speaker 05:
Mr. Mateo's counsel cited numerous cases where there have been variances from the guideline sentences.

[00:04:41] Speaker 05:
And indeed, the probation department and their recommendation that was made to the judge recommended the mandatory minimum of 60 months.

[00:04:52] Speaker 02:
Can we back up the process in this case a little mystifying?

[00:04:58] Speaker 02:
Why wasn't this case prosecuted in West Virginia?

[00:05:02] Speaker 02:
I don't know, Your Honor.

[00:05:03] Speaker 02:
I can ask the government.

[00:05:04] Speaker 02:
And in terms of the calculation, there is some, and again, maybe this is a question for the government, but there's some suggestion by defense counsel at trial that there was a policy change by the U.S.

[00:05:17] Speaker 02:
Attorney's Office where they used to charge cases with facts substantially similar to this, where there was possession and some distribution to an undercover.

[00:05:27] Speaker 02:
It would charge them as possession.

[00:05:29] Speaker 02:
Exactly.

[00:05:31] Speaker 02:
Was there a policy change that you're aware of?

[00:05:33] Speaker 02:
And do you know the nature of it?

[00:05:35] Speaker 02:
Was it made public?

[00:05:36] Speaker 05:
From my understanding, what little there was in the transcripts concerning this is at one time the government would routinely give police to possession.

[00:05:46] Speaker 05:
But there was a change in policy.

[00:05:47] Speaker 05:
And they would charge a case as distribution.

[00:05:53] Speaker 05:
And they would go along with the sentencing guidelines.

[00:05:56] Speaker 05:
regarding distribution.

[00:05:58] Speaker 02:
But it's not a policy that's been made public that you're aware of.

[00:06:01] Speaker 05:
No, not at all.

[00:06:02] Speaker 02:
It was just some gathering map, as I am from the record and discussion.

[00:06:05] Speaker 05:
Right.

[00:06:06] Speaker 05:
And I think as the parties went forward, they at first thought that it was going to be a mere procession case, but then that switched around.

[00:06:13] Speaker 02:
And you mentioned that the initial guidelines range suggested here was like 63 to 78 months.

[00:06:23] Speaker 02:
And then it was changed.

[00:06:27] Speaker 02:
And I thought the change actually came from the probation office.

[00:06:32] Speaker 05:
I think it was the probation office that said that they would determine the guidelines based on distribution and all the various enhancements.

[00:06:42] Speaker 05:
And that was the change

[00:06:45] Speaker 05:
that the defense had to deal with going forward, that the sentencing guidelines as determined by probation would be vastly different.

[00:06:54] Speaker 02:
So it's not the U.S.

[00:06:54] Speaker 02:
Attorney's Office that determines the guidelines range?

[00:06:57] Speaker 02:
It's the probation office?

[00:06:58] Speaker 05:
The probation office does the calculations.

[00:07:02] Speaker 05:
I believe the government agreed with the calculations as done, although initially I don't think that was the government's intent in this case.

[00:07:16] Speaker 05:
So moving on, I think that in this case, the judge did not cite any reasons for not granting the downward variance.

[00:07:28] Speaker 05:
The judge stated all these cases.

[00:07:30] Speaker 03:
Maybe I'm wrong.

[00:07:31] Speaker 03:
I thought he said he thought this case was unique and different, and there were images of toddler and infant abuse that

[00:07:40] Speaker 03:
he thought made them different from any other cases.

[00:07:43] Speaker 03:
Am I wrong?

[00:07:44] Speaker 03:
Am I misstating you?

[00:07:45] Speaker 05:
Well, I think, yeah, he mentioned a number of things, the age of the child, the number of images.

[00:07:52] Speaker 05:
I think there were a whole litany of them.

[00:07:55] Speaker 03:
He thought that in his judgment, they were particularly egregious because of the ages and the nature of the images.

[00:08:02] Speaker 05:
Right, that this case was totally different from any other case because it had all these additional factors.

[00:08:07] Speaker 05:
But based on my research and I think the sentencing guidelines, the Sentencing Commission, all of the factors that the judge relied upon were found in the majority of the cases, distribution cases.

[00:08:21] Speaker 05:
And those included images of prepubescent minors.

[00:08:27] Speaker 05:
Well, prepubescent in toddlers.

[00:08:29] Speaker 01:
Infants is different.

[00:08:30] Speaker 01:
Infants is different, right?

[00:08:32] Speaker 01:
That's correct.

[00:08:33] Speaker 01:
And that wasn't factored in?

[00:08:35] Speaker 05:
It is.

[00:08:35] Speaker 05:
It is there.

[00:08:35] Speaker 05:
Well, I mean, I don't know the breakdown.

[00:08:37] Speaker 05:
I only know prepubescent minors.

[00:08:42] Speaker 05:
What do the guidelines do?

[00:08:43] Speaker 01:
But the district court here said this is worst of the worst.

[00:08:51] Speaker 01:
And that is toddlers and infants being used.

[00:08:56] Speaker 05:
But at the same time, there was no travel in this case, where there are in other cases.

[00:09:00] Speaker 05:
There are a number of things that

[00:09:03] Speaker 05:
And again, I don't know what the exact fears are for toddlers and infants.

[00:09:08] Speaker 05:
I know that.

[00:09:08] Speaker 01:
The point here, and we're not trying to make the sentencing decision ourselves in the first instance here, the point here is that you said the district court gave no reason.

[00:09:16] Speaker 01:
And I think what Judge Griffith was referencing and I'm referencing is that the district court did give reasons.

[00:09:24] Speaker 05:
Right, but I don't think the facts support the reasons given.

[00:09:28] Speaker 01:
I don't think that this case... You don't dispute the facts about the infants and toddlers abused?

[00:09:32] Speaker 05:
Well, I think there were some images that included that, but the actual subject of the case was a 10-year-old, not an infant or a toddler.

[00:09:41] Speaker 01:
When you do this, tell me how disparity analysis

[00:09:48] Speaker 01:
supposed to work, in your view, I'm really quite lost about it, because does it mean we look at disparities within this judge's sentencing, within this district's sentencing, within this region's,

[00:10:03] Speaker 01:
Within the nation, what is the comparison point and how does it work?

[00:10:08] Speaker 01:
Do you just deliver a pile of cases to the judge and then the judge has to march through every one of those and say, that's different, how?

[00:10:16] Speaker 01:
I have no idea how this disparity analysis is supposed to work.

[00:10:20] Speaker 01:
Well, I don't either, exactly, but I think that's where you start.

[00:10:23] Speaker 01:
No, but you're asking for a decision in your favor here, so we would have to have some understanding of what steps went wrong.

[00:10:29] Speaker 01:
And until I know how it's supposed to work, I can't figure out if anything went wrong.

[00:10:32] Speaker 05:
Well, initially, I think a sentencing judge has to look at what's going on in the district.

[00:10:39] Speaker 05:
And I think that's the first step.

[00:10:42] Speaker 05:
And then to consider if what's happening in the district is an anomaly or is it happening across the country.

[00:10:48] Speaker 01:
And how is a district court judge supposed to do that?

[00:10:50] Speaker 05:
by reading the sentencing memorandum.

[00:10:53] Speaker 05:
The sentencing memorandum set forth numerous cases.

[00:10:57] Speaker 05:
where there are facts far more egregious than in this case.

[00:11:00] Speaker 01:
3553A assumes the court's gonna do it on its own anyhow.

[00:11:04] Speaker 01:
So is the district court supposed to sit down and obtain this information?

[00:11:08] Speaker 01:
I mean, if you had an attorney who just forgot to put it in the sentencing memorandum, would the district court still have an obligation to ensure an absence of disparity in sentencing?

[00:11:18] Speaker 01:
I think so.

[00:11:19] Speaker 01:
Okay, so then what's the district court supposed, how's this supposed to work?

[00:11:22] Speaker 05:
But I don't think the district court has to consider disparity unless it's raised.

[00:11:27] Speaker 01:
And I think once it's raised... You don't read 3553A as automatically identifying it as one of the things the court's supposed to consider?

[00:11:34] Speaker 05:
I think it has to be raised.

[00:11:36] Speaker 05:
I don't see how a judge can... Well, if a judge wants to consider disparity absent a request, I don't think there's anything to stop the judge from doing that.

[00:11:45] Speaker 05:
But I think once it's raised, it's something the judge should

[00:11:49] Speaker 05:
consider thoroughly.

[00:11:50] Speaker 02:
So here, Judge Leon said, you know, I have a lot of experience with these cases, some of the cases that were cited in the sentencing memorandum were his own cases, and

[00:12:02] Speaker 02:
He said, yeah, I understand there's some similarities, but there are also real differences.

[00:12:08] Speaker 02:
And what he did really focus on were the things that he was the most concerned about here.

[00:12:13] Speaker 02:
One was the nature of some of the images.

[00:12:15] Speaker 02:
But as I read the transcript, I thought the thing that he was most concerned about was what he characterized as a real refusal to accept responsibility, saying it would never cross my mind

[00:12:26] Speaker 02:
to actually seek to have a sexual encounter with a minor.

[00:12:30] Speaker 02:
And Judge Leon said, what are you talking about?

[00:12:33] Speaker 02:
You were in the process of arranging that.

[00:12:36] Speaker 02:
And that really, as I read the entire transcript, including his initial rejection of the description of the offense and on to the end, that that was really the thing that made him concerned

[00:12:55] Speaker 02:
and that animated the sentence.

[00:12:57] Speaker 02:
Is that not a valid reason for distinguishing this case on its facts from other cases?

[00:13:03] Speaker 05:
I would note that there was evidence, there was a report submitted to the judge for consideration by an expert who interviewed Mr. Matea and she determined that

[00:13:18] Speaker 05:
he was sorry for what he did, explained reasons for what he did, such as his depression, his alcoholism, and she thought he would be better served by treatment as opposed to a lengthy incarceration.

[00:13:34] Speaker 05:
So I, I forgot the question, but I think that there was something there for the judge to consider.

[00:13:44] Speaker 05:
The judge pretty much outright

[00:13:46] Speaker 05:
did not consider it because he did not quite understand what the expert's qualifications were.

[00:13:54] Speaker 05:
And I think he mentioned, well, she doesn't have a PhD or something like that.

[00:13:57] Speaker 05:
And I don't think that is a proper reason to out of hand.

[00:14:01] Speaker 02:
But we got onto this when we were talking about whether the judge had adequately taken account of the concerns about disparity among sentences.

[00:14:10] Speaker 02:
And so the question is,

[00:14:12] Speaker 02:
Is it not an implication of the judge's engagement with the facts of a particular case and the judge's experience with other similar cases that the judge has at least gone part of the way toward explaining why here not a downward departure where there might be in another case?

[00:14:36] Speaker 05:
Well, I don't think that

[00:14:44] Speaker 05:
I don't think that the judge thoroughly considered about the evidence that was presented, and at the same time, there was nothing put forward as far as acceptance or argument.

[00:14:59] Speaker 05:
I don't know, any acceptance by any of the defendants and whether they were accepting responsibility.

[00:15:05] Speaker 05:
In the other cases.

[00:15:06] Speaker 02:
In the other cases.

[00:15:07] Speaker 02:
If you were to point to, there were so many cases that were presented by the state's counsel in the district court.

[00:15:15] Speaker 02:
If you were to identify the one, two, three, four cases that you think are the most

[00:15:22] Speaker 02:
analogous to this one that are the most troubling in terms of why is there a disparity?

[00:15:29] Speaker 02:
Which cases would you point to?

[00:15:30] Speaker 05:
I would point to the cases where there was basically, there was distribution, but the defendants would get a mandatory minimum five year sentence.

[00:15:45] Speaker 05:
There were cases where there

[00:15:47] Speaker 05:
The conduct was far more egregious.

[00:15:50] Speaker 05:
There was a person who traveled from France to the United States that had sex with a child, and that person received the below-guidelines sentence.

[00:16:02] Speaker 01:
How old is the child in that case?

[00:16:04] Speaker 05:
I believe 12.

[00:16:06] Speaker 05:
And in this case, we were dealing with a 10 year old.

[00:16:10] Speaker 05:
So it's not hugely different.

[00:16:12] Speaker 05:
But then there was also travel.

[00:16:14] Speaker 05:
I'm traveling from France to the United States to have sex with a 12 year old.

[00:16:16] Speaker 05:
Kind of a big deal, I think.

[00:16:18] Speaker 05:
In this case, there was no travel from West Virginia to the District of Columbia.

[00:16:23] Speaker 05:
And there was, although there was some indication that Mr. Matea

[00:16:30] Speaker 05:
had been involved in other conduct with young children, that turned out to not be true.

[00:16:38] Speaker 05:
It could not be verified.

[00:16:40] Speaker 05:
And that was one of the reasons that the judge would not accept the plea early on, because that language was in the plea agreement.

[00:16:47] Speaker 02:
I'd be interested to know, maybe on rebuttal, if you just name for us the cases that you think are the most troubling in terms of, I mean, Anne, you identified the France case, but if you would just really tell us, you know, which of the cases that you think the district judge would have to kind of belly up and deal with.

[00:17:06] Speaker 02:
Can you point to any case in this circuit where we found a within guidelines sentence is substantively unreasonable under the

[00:17:16] Speaker 05:
You know, when it hasn't been raised.

[00:17:19] Speaker 05:
From other circuits?

[00:17:20] Speaker 05:
But at the same time, oh, I'm sorry.

[00:17:21] Speaker 01:
Do you have a case from another circuit?

[00:17:24] Speaker 05:
Yes.

[00:17:25] Speaker 05:
I believe it was the United States v. Dorvey case out of the second circuit.

[00:17:31] Speaker 05:
It's cited in the reply brief at page eight.

[00:17:37] Speaker 05:
And there, the court reversed a within-guidelines sentence as unreasonable based on the statistics of the enhancements

[00:17:47] Speaker 01:
No, but that case seems to be, so that gets back to the problem of, you know, we've said in Frye that it seemed to be they're sort of disagreeing with the guidelines because all the cases involve this, all the cases involve that.

[00:18:02] Speaker 01:
That seems to be the rationale there, but we said in Frye that courts can make different choices on these sort of policy disagreements about the guidelines.

[00:18:11] Speaker 01:
So that kind of disparity can't count, right?

[00:18:14] Speaker 05:
Right.

[00:18:15] Speaker 05:
I think a lot of the cases cited in the sentencing memorandum were cases where there was, you know, the downward variance or departure based on policy reasons, although you can't use policy as a... But we're dealing here with an inverse situation.

[00:18:34] Speaker 02:
There's no question, I don't think, under our precedence, that a district judge who chooses to depart downward

[00:18:43] Speaker 02:
because of concerns that there's double counting and that by the enhancements or other reasons that they have discretion to do that.

[00:18:51] Speaker 02:
But we're dealing with the inverse question, which we also dealt with in Frye, which is where the district does not so choose, but chooses as here to sentence within the range, albeit at the bottom end of the range.

[00:19:04] Speaker 02:
Is there precedent that we as a reviewing court

[00:19:07] Speaker 02:
could nonetheless look at that within guidelines, sentence and say, unreasonable.

[00:19:14] Speaker 02:
We require that it go below the range.

[00:19:17] Speaker 05:
Again, I'm not familiar with anything from this circuit, but there is the second circuit case where they did exactly that.

[00:19:25] Speaker 03:
And I think no further questions.

[00:19:27] Speaker 03:
We'll give you some time back on from the government now.

[00:19:40] Speaker 04:
Good morning.

[00:19:41] Speaker 04:
May it please the Court, David Sabel on behalf of the United States.

[00:19:44] Speaker 04:
If I may, just on a few quick matters, the Court asked a couple questions.

[00:19:49] Speaker 04:
Perhaps I can help on these.

[00:19:51] Speaker 04:
The case was prosecuted in D.C., much like the Frye case was prosecuted in D.C., because a person in another state

[00:20:01] Speaker 04:
distributed images to an undercover officer working in DC, Officer Detective Palchak.

[00:20:07] Speaker 04:
So that's why the case was prosecuted here.

[00:20:11] Speaker 04:
With respect to the initial miscalculation of the guidelines, when the government negotiated the plea offer in this case initially,

[00:20:19] Speaker 04:
the government estimates what the relevant conduct will be.

[00:20:23] Speaker 04:
The government and the parties estimated the relevant conduct but made an error.

[00:20:28] Speaker 04:
The probation office corrected the error.

[00:20:31] Speaker 02:
What was the error?

[00:20:32] Speaker 04:
The error had to do with, initially the relevant conduct was thought to encompass the images that were distributed only, but not the images that were possessed in West Virginia.

[00:20:43] Speaker 04:
So after

[00:20:44] Speaker 04:
appellant distributed the images, then the search warrant was executed at his home in West Virginia, and additional images were recovered.

[00:20:52] Speaker 04:
And so the relevant conduct under the guidelines must be all of those images.

[00:20:58] Speaker 04:
And so that's why the guidelines have to be what they are.

[00:21:01] Speaker 04:
They could not be the earlier amount, which was 63 to 78.

[00:21:05] Speaker 02:
And I have a question about that.

[00:21:09] Speaker 02:
But just going to the other question I had about the policy change, that some of the cases that involve really substantially similar conduct, where you have someone responding to the undercover by sending some images, but the government charges that as a possession

[00:21:25] Speaker 02:
and gets the inventory in under that, and that starts at a baseline 18 rather than a baseline 22.

[00:21:32] Speaker 02:
Was there a policy change?

[00:21:34] Speaker 04:
Well, the court's asking about something that's not in the record, but if the court's asking... Well, there was some discussion of it in the record, and I just...

[00:21:41] Speaker 04:
I don't believe so, Your Honor.

[00:21:43] Speaker 04:
I think the discussion at the initial hearing, at the arraignment, had to do with the initial plea offer and why the initial plea offer wasn't being offered.

[00:21:52] Speaker 04:
And then I'm looking at July 12, page 6, Your Honor.

[00:21:57] Speaker 04:
And then the magistrate judge said, you know, I'm not taking this plea offer to 151 to 188 months, because we're going to arraign the defendant first.

[00:22:07] Speaker 04:
If the court wants me to answer the question, I'll certainly answer the question.

[00:22:10] Speaker 04:
I'm just pointing out that I'm not aware that it's in the record.

[00:22:13] Speaker 02:
Well, I was just reading the record, and I don't know anything beyond this.

[00:22:16] Speaker 02:
But in this defense counsel, who obviously isn't in the position that you are in to know, but he says, I think my understanding is the United States Attorney's Office changed their position with respect to cases like Mr. Mateus, where in prior instances they went forward with just the possession charge as opposed to the distribution charge.

[00:22:34] Speaker 04:
OK, so I'm wrong.

[00:22:37] Speaker 04:
There was a time where, in some cases, a case would be, a plea offer would be made to possession instead of distribution in a distribution case.

[00:22:46] Speaker 04:
But of course, Ronna, the relevant conduct, which is what drives these guidelines, is the same.

[00:22:51] Speaker 04:
The relevant conduct has to be all of the images.

[00:22:54] Speaker 04:
It can't just be... Well, no.

[00:22:55] Speaker 02:
I mean, here's a question.

[00:22:55] Speaker 02:
So if you start with a baseline 18 and then start adding,

[00:22:59] Speaker 02:
The relevant baseline for possession, you're starting lower than the relevant 22 for distribution.

[00:23:08] Speaker 02:
So the very starting point here seems to be based on the prosecutor's choice.

[00:23:15] Speaker 02:
And it sounds from the record a little bit based not even on the prosecutor's choice, but in some way, well, I guess they chose to charge it as distribution, but then it ends up coming out differently than the assistant attorney thought based on what the probation office comes back with.

[00:23:30] Speaker 02:
I'm just trying to understand how this whole, the baseline is chosen and the adding on happens.

[00:23:37] Speaker 02:
So is there a policy change or is it case specific or why this case being charged the way it is in the other cases charges possession?

[00:23:45] Speaker 04:
I can't say more about it than this.

[00:23:47] Speaker 04:
The government, there was a practice, I don't know about a policy change, there was a practice.

[00:23:53] Speaker 04:
There certainly has been a policy change under this attorney general, but my understanding is that the change in practice preceded that.

[00:24:05] Speaker 04:
In any case, the government does try to obtain a plea offer to the lead charge.

[00:24:10] Speaker 04:
In this case, it would be distribution.

[00:24:13] Speaker 04:
The starting point for the base level for the guidelines may be different, as the court is pointing out.

[00:24:17] Speaker 04:
But the irrelevant conduct is still going to be the same.

[00:24:20] Speaker 02:
OK, now let's talk about relevant conduct.

[00:24:22] Speaker 04:
The amount of images.

[00:24:23] Speaker 02:
Right.

[00:24:23] Speaker 02:
What's the theory here?

[00:24:25] Speaker 02:
Because you know that there are cases, for example, in the Fifth Circuit, the Edith Jones opinion, and then the Fowler opinion,

[00:24:34] Speaker 02:
There are at least two opinions in the Fifth Circuit where the court said, no, possession is not necessarily related to distribution.

[00:24:48] Speaker 02:
And I'm not aware of any evidence in this case that shows that this possession was related to the distribution.

[00:24:55] Speaker 02:
Do you have a theory on that?

[00:24:57] Speaker 04:
Well, Your Honor, you're advancing an argument that I'm not familiar with, certainly has never been raised by the parties in this case, was never broached as far as I'm aware on the record.

[00:25:07] Speaker 04:
Maybe the court's going to prove me wrong a second time.

[00:25:09] Speaker 04:
But I'm not aware of that, nor am I familiar with the Fowler case.

[00:25:13] Speaker 04:
Certainly what we do know is that this appellant, sitting in Nitro, West Virginia, had a collection of child pornography, met Detective Palchak, posing as an undercover officer with a fictional 10-year-old daughter,

[00:25:25] Speaker 04:
and he sent him distributed images from his collection to D.C.

[00:25:33] Speaker 04:
So to me, that is a connection.

[00:25:36] Speaker 02:
And the other case was Twichler case, 689 F. Third, 397.

[00:25:43] Speaker 02:
And the underlying case was Fowler.

[00:25:46] Speaker 02:
And one of the things that the court appeals raises there is, can you say it's connected

[00:25:53] Speaker 02:
its relevant conduct where there was a time lapse between the crime, the distribution of the images to the undercover, and the arrest and search that found the inventory.

[00:26:06] Speaker 02:
We don't actually know whether that inventory was possessed at the time of the offense.

[00:26:11] Speaker 02:
So we don't know whether the pulling out of the inventory was that inventory.

[00:26:16] Speaker 02:
And if we don't know that, then what is the theory of connection?

[00:26:21] Speaker 04:
Well, again, Your Honor, the court, with all due respect, is in a position where I think we're speculating here about that.

[00:26:27] Speaker 02:
What we do know is that the search warrant is... We'd like to have evidence in the record that the government made the case for relatedness.

[00:26:34] Speaker 04:
The probation department calculates the guidelines.

[00:26:38] Speaker 04:
An arm of the court calculates the guidelines as they are obliged to do.

[00:26:43] Speaker 04:
No objection was ever raised about this.

[00:26:46] Speaker 04:
If there are gaps in the record, it would be an appellant's obligation at this point to fill in those gaps because this is a claim that has never been broached before.

[00:26:55] Speaker 02:
of the guidelines is a basic obligation of the district court, and it's a basic obligation with the assistance of the parties.

[00:27:05] Speaker 02:
So I'm just trying to understand, we get a lot of these cases, and I'm just trying to understand what the practice is of the government in these cases.

[00:27:11] Speaker 02:
And as you know,

[00:27:12] Speaker 02:
These are people face, it's very serious, egregious and frankly revolting conduct and very frightening conduct that these defendants are engaged in.

[00:27:22] Speaker 02:
I understand that.

[00:27:23] Speaker 02:
And I have no question that this individual has been validly sentenced to a term of imprisonment.

[00:27:29] Speaker 02:
The question we're asking is whether the

[00:27:31] Speaker 02:
length of the term of imprisonment is appropriate.

[00:27:34] Speaker 02:
And the thing that really drives that is what has become this administrative process that is largely in the hands of the U.S.

[00:27:41] Speaker 02:
Attorney's Office and the probation office.

[00:27:43] Speaker 02:
And we as courts are asked to supervise it.

[00:27:45] Speaker 02:
And I feel like in order to responsibly supervise it,

[00:27:48] Speaker 02:
We need to understand how it works.

[00:27:49] Speaker 04:
With respect, Your Honor, I very much disagree with what the court just said.

[00:27:53] Speaker 04:
This judge, this court, made five specific factual findings that no one has suggested are clearly erroneous.

[00:28:01] Speaker 04:
He found that the collection was particularly egregious because it contained images of toddlers and infants.

[00:28:07] Speaker 04:
He found, second, that Appellant had expressed an interest in having sex, of traveling to DC to have sex with a 10-year-old girl.

[00:28:15] Speaker 04:
He found that Appellant was interested, he asked the undercover officer to have sex with this 10-year-old girl and send him the video.

[00:28:23] Speaker 04:
He found that the Appellant had denied his sexual interest in children and that for that reason he was a high risk to recidivate.

[00:28:32] Speaker 04:
He found that in this case, this appellant was not going to be prosecuted and obtained the benefit of not being prosecuted for possession in West Virginia.

[00:28:42] Speaker 04:
These are facts.

[00:28:42] Speaker 02:
I don't think you're disagreeing with me at all.

[00:28:44] Speaker 02:
I think I agree with everything you just said, but I don't think you addressed

[00:28:47] Speaker 02:
My underlying question, I absolutely, I see all of those things in the records.

[00:28:52] Speaker 02:
The question is, just looking at the process by which the choices are made that get us to this sentencing guidelines range.

[00:29:01] Speaker 04:
But the guidelines, but defendant was not, I'm sorry your honor.

[00:29:05] Speaker 04:
I apologize if I ever spoke.

[00:29:10] Speaker 02:
my question is if we're looking at the enhancements we have to ask about the validity of them and I know that this work here on Plano Review because these issues were not vetted in the lower court.

[00:29:27] Speaker 02:
When there's an enhancement for sadistic or masochistic conduct, is it the government's position that the three images that were sent to the undercover were sadistic

[00:29:41] Speaker 02:
or masochistic?

[00:29:46] Speaker 04:
No.

[00:29:47] Speaker 02:
So that enhancement is based on the inventory?

[00:29:51] Speaker 04:
I think logically that would have to be true, yes.

[00:29:55] Speaker 04:
But again, we're talking about facts that are not in the record.

[00:29:58] Speaker 04:
Certainly, I think, Your Honor, if the court were concerned on plain error review, it could look at the images recovered from the appellant's computer and see if those images were the same images that were distributed.

[00:30:10] Speaker 04:
That would presumptively, that would seem to nail that one down pretty conclusively.

[00:30:15] Speaker 04:
We also know that the window is only a few days between the search warrant and the distribution.

[00:30:19] Speaker 02:
I thought it was several weeks.

[00:30:27] Speaker 04:
I would have to check the record.

[00:30:31] Speaker 04:
I thought it was only a couple days, Your Honor.

[00:30:32] Speaker 04:
But again, I want to emphasize, Judge Leon sentenced this defendant, appellant, on the facts.

[00:30:40] Speaker 04:
He made these factual findings.

[00:30:41] Speaker 04:
That was what was paramount to him.

[00:30:43] Speaker 04:
And I understand an appellant agreed

[00:30:46] Speaker 04:
he agreed in writing and orally at the plea hearing that this guideline was reasonable.

[00:30:55] Speaker 04:
It wasn't just the waiver, he agreed that this guideline range was reasonable and the sentence was at the bottom of the guideline.

[00:31:00] Speaker 02:
I understand that and I think you have very strong points there and I'm not seeking to imply otherwise.

[00:31:07] Speaker 01:
Can I ask one, just because you're out of your time here, just one quick thing, can I just get the government's view on how disparity analysis is

[00:31:15] Speaker 01:
supposed to work.

[00:31:18] Speaker 01:
What is the relevant comparator range?

[00:31:21] Speaker 01:
I just don't know.

[00:31:22] Speaker 01:
You know, are you comparing within the for that judge for that district for that circuit for that nation?

[00:31:32] Speaker 04:
It's not clear how it's supposed to work.

[00:31:34] Speaker 04:
It's not clear to me.

[00:31:35] Speaker 04:
And it wasn't clear to the district court.

[00:31:36] Speaker 04:
The district court said, OK, you've given me a bunch of cases with SQUIV descriptions of them.

[00:31:41] Speaker 04:
I know some of these.

[00:31:43] Speaker 04:
And I'm familiar with them.

[00:31:44] Speaker 01:
I know what the district court did here.

[00:31:45] Speaker 01:
I'm trying to understand.

[00:31:47] Speaker 01:
But you guys do this all the time.

[00:31:48] Speaker 01:
The government must have some view on what the frame of reference is.

[00:31:56] Speaker 01:
I read that 3553 is requiring the district court to do this on its own to make sure the sentence is not disparate.

[00:32:03] Speaker 01:
But I've got to assume that that doesn't mean the district court has got to sit on Westlaw and find every case in the country.

[00:32:09] Speaker 01:
Probably not every case even in the district.

[00:32:12] Speaker 04:
Or read 50 PSRs, exactly.

[00:32:15] Speaker 01:
I don't know how to answer a question about disparity if I don't know how it was supposed to have been

[00:32:21] Speaker 04:
I suppose you could look at what the Sentencing Commission has said, and if you are to take those comparisons, the Sentencing Commission, I believe, said in their 2012 report that, and they were talking again about possession cases, not distribution, and they were also talking about cases in which there was no sexual activity.

[00:32:40] Speaker 01:
I'm using a generic question here about how this theory works.

[00:32:44] Speaker 04:
I'm trying to get to the courts.

[00:32:45] Speaker 04:
And what they said is, so I think the figure was 60-some percent of the courts in those circumstances are varying downward, and 30-some percent are not.

[00:32:54] Speaker 04:
So is that an unwarranted disparity?

[00:32:57] Speaker 04:
I don't know.

[00:32:58] Speaker 04:
I mean, we would say, no, this is a matter on which reasonable jurists can and do disagree.

[00:33:04] Speaker 04:
The Supreme Court said in Kimbrough, when they said policy variances are appropriate under Booker,

[00:33:12] Speaker 04:
They said, we recognize that we're going to have additional disparities.

[00:33:17] Speaker 04:
They said, our opinion and Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted.

[00:33:23] Speaker 04:
So in order to let some district court judges in a crack cocaine scenario vary downward, they had to recognize that while some judges would vary downward, others would exercise.

[00:33:34] Speaker 01:
Has the Sentencing Commission said how this is supposed to work?

[00:33:39] Speaker 01:
Is there a US attorney manual that

[00:33:40] Speaker 01:
how this is supposed to work or it's really just everyone's just sort of doing it ad hoc.

[00:33:47] Speaker 01:
I'm really just asking because I've never been involved in sentencing as a lawyer or as a judge, only on review.

[00:33:56] Speaker 01:
If you don't know now, that's fine.

[00:33:57] Speaker 01:
I'm just trying to understand how it works.

[00:33:59] Speaker 01:
So I can know if it was done right or wrong.

[00:34:02] Speaker 04:
I think every judge that I've been in front of who's handled a number of these cases, and that's where you get the experience that the jurist comes into play, has a sense of what they think is the appropriate range, has a sense of what other judges do in the courthouse, has a sense of what other judges do in the country.

[00:34:17] Speaker 04:
It may not be reading every PSR, but they have a sense of what a certain case is worth and what the key factors are.

[00:34:23] Speaker 04:
They weigh those factors under 3553.

[00:34:25] Speaker 04:
They take the guidelines as a starting point.

[00:34:28] Speaker 04:
And they go from there.

[00:34:30] Speaker 04:
They disagree on certain policy points, which is what this district court judge does.

[00:34:35] Speaker 04:
He disagrees with what some others do.

[00:34:37] Speaker 04:
Perhaps at this point, he's in a minority in the country.

[00:34:39] Speaker 04:
But he does feel, and he made factual findings, that this case was unique.

[00:34:43] Speaker 02:
Right.

[00:34:44] Speaker 02:
That was one.

[00:34:44] Speaker 02:
I mean, this is sort of the bookend with Judge Millett's question about what does this factor mean under 3553 to avoid sentencing disparities.

[00:34:56] Speaker 02:
It's a little hard to know how to review or what to make of a statement when the district judge says, every case is unique.

[00:35:03] Speaker 02:
Every case is unique.

[00:35:04] Speaker 02:
I don't want to look at your other cases.

[00:35:08] Speaker 02:
There's some comments about the relative junior status of those judges, where in fact, they were submitted opinions from very senior judges, like Judge Hogan.

[00:35:20] Speaker 02:
Lambert and Friedman, but anyway, he says every case is unique.

[00:35:24] Speaker 02:
Isn't that in a way, per se, not conducting the analysis required by the last part of 3553 that you're supposed to consider sentencing disparities?

[00:35:37] Speaker 02:
You're supposed to make some kind of judgment by analogy, some kind of judgment, and he basically is saying no.

[00:35:44] Speaker 04:
What the court said was, he didn't say, I'm not familiar with those cases or I'm not looking at those cases.

[00:35:48] Speaker 04:
He said, I am familiar with those cases.

[00:35:51] Speaker 04:
I tried a number of them and handled them.

[00:35:52] Speaker 04:
And I'm familiar with the others.

[00:35:54] Speaker 04:
I'm not going to go read the PSRs.

[00:35:55] Speaker 04:
I don't think that's my job.

[00:35:56] Speaker 04:
But I am familiar with them.

[00:35:58] Speaker 04:
And they are not analogous.

[00:35:59] Speaker 02:
And he didn't say they are not analogous.

[00:36:02] Speaker 02:
I'm sorry?

[00:36:02] Speaker 02:
He said, he didn't say they are not analogous.

[00:36:04] Speaker 02:
He said, every case is different.

[00:36:08] Speaker 02:
Every case is unique.

[00:36:09] Speaker 02:
He just seemed to say, that is just an inquiry that I don't find helpful.

[00:36:14] Speaker 02:
And so I guess, again, trying to figure out what our inquiry can be guided by.

[00:36:25] Speaker 04:
Could I direct the court to page 218 of the appendix, which is the part of the transcript that the court, I think, was referring to?

[00:36:35] Speaker 04:
It's page 38 of the transcript.

[00:36:40] Speaker 04:
I guess it's the 21st.

[00:36:42] Speaker 04:
Let's see here.

[00:36:45] Speaker 02:
I have page 42 is 218.

[00:36:47] Speaker 04:
1221, transcript pages 37 to 38.

[00:36:50] Speaker 04:
That's 213 to 214.

[00:36:52] Speaker 01:
Okay.

[00:36:54] Speaker 04:
Okay.

[00:36:55] Speaker 04:
The court says at the top of page 38, the overwhelming majority of the cases you cited are judges who were appointed by President Obama in the last three or four years and who have very limited experience in sentencing in these cases.

[00:37:08] Speaker 04:
Yes, you did cite one case from Judge Lamberth.

[00:37:10] Speaker 04:
You cited two from me that I know from personal knowledge are not at all analogous.

[00:37:14] Speaker 04:
And then he goes on to say, I'm not accusing you of anything wrong.

[00:37:17] Speaker 04:
Defense counsel says, no, I'm just saying they're not analogous.

[00:37:21] Speaker 04:
I interpret that as the court is saying, I'm familiar with these cases, they're not analogous, and he's also adverting to the fact that in many cases he feels like he has more experience.

[00:37:35] Speaker 04:
To me, he is saying that they are analogous.

[00:37:37] Speaker 04:
And I would emphasize that given the facts, particularly as I think Judge Millett pointed out, the absence of remorse, the absence of insight into his condition, and the sexual traveling, which is the big distinction between this case and the second case in Jenkins, which is the only case to find a guideline-range sentence here unreasonable,

[00:37:57] Speaker 04:
The district court was particularly focused on punishment and deterrence and protecting children, particularly the infants and toddlers.

[00:38:05] Speaker 04:
And so he felt that the unwarranted disparity factor was relatively less important than those factors in this particular case.

[00:38:15] Speaker 03:
Can I ask you about the waiver issue?

[00:38:18] Speaker 03:
Would you – what is your characterization of the Rule 11 colloquy?

[00:38:22] Speaker 03:
Your friend described it as ambiguous.

[00:38:25] Speaker 03:
Godoy says we have concern if it mischaracterizes the nature of the plea agreement.

[00:38:31] Speaker 03:
What's the government's view of what took place in the Rule 11 colloquy?

[00:38:36] Speaker 04:
This was a valid waiver.

[00:38:37] Speaker 04:
Thank you, Your Honor.

[00:38:38] Speaker 04:
There is nothing here that indicates a mischaracterization of the valid written waiver as was the case in Godoy.

[00:38:46] Speaker 04:
In Godoy, the judge said, you have given up your right to appeal except you should come to believe after consulting with counsel that the court has done something illegal, such as imposing a period of imprisonment longer than the statutory maximum.

[00:38:59] Speaker 04:
Here, what the court said is you've given up your right to appeal except in limited circumstances.

[00:39:04] Speaker 04:
Those limited circumstances were not fleshed out.

[00:39:07] Speaker 04:
It's true.

[00:39:07] Speaker 04:
The court's colloquy under Rule 11 could have been a little bit more fulsome, but it was accurate.

[00:39:12] Speaker 04:
It was not a mischaracterization.

[00:39:14] Speaker 04:
And here you have a colloquy.

[00:39:16] Speaker 03:
What are we supposed to do with the relationship between the written waiver and the Rule 11 colloquy?

[00:39:22] Speaker 03:
Does one inform the other at all, or does the Rule 11 colloquy sort of, does it stand on its own in terms of our analysis?

[00:39:32] Speaker 04:
Well, the rule 11 colloquy

[00:39:36] Speaker 04:
The rule 11 colloquy should be read, I would think, in terms of the written waiver.

[00:39:40] Speaker 04:
Why?

[00:39:41] Speaker 04:
Why?

[00:39:41] Speaker 04:
Because it's a knowing, intelligent, and voluntary waiver.

[00:39:44] Speaker 03:
And here there's- What's the purpose of the rule 11 colloquy in the first instance?

[00:39:48] Speaker 04:
Why does it- To make sure in a personal voir dire by the judge of the appellant, not through the lawyer.

[00:39:54] Speaker 03:
Which suggests that there's some- To make- Unease with the written agreement alone, right?

[00:40:01] Speaker 03:
We don't have complete confidence that the defendant may understand

[00:40:05] Speaker 03:
the written agreement.

[00:40:07] Speaker 03:
Isn't that right?

[00:40:07] Speaker 04:
I think that's probably fair.

[00:40:09] Speaker 03:
Okay, so that would suggest that the Rule 11 colloquy stands on its own.

[00:40:14] Speaker 03:
And so what I'd like to do, would you read for me the critical language that Judge Leon used in his colloquy?

[00:40:26] Speaker 03:
You may even.

[00:40:29] Speaker 03:
Yes, sir.

[00:40:29] Speaker 04:
I have part of it, but since

[00:40:33] Speaker 03:
Well, I'll read it.

[00:40:33] Speaker 04:
J.A.

[00:40:34] Speaker 03:
90.

[00:40:34] Speaker 03:
I'm looking at pages.

[00:40:35] Speaker 03:
Well, here's the point.

[00:40:37] Speaker 03:
I'm going to read it.

[00:40:38] Speaker 03:
I'm going to read the part that's interesting to me.

[00:40:40] Speaker 03:
I'll follow up.

[00:40:41] Speaker 03:
J.A.

[00:40:41] Speaker 03:
90.

[00:40:42] Speaker 03:
Page 90.

[00:40:43] Speaker 03:
You may even, comma, under some limited circumstances, comma, have a right to appeal the court's sentence, comma, even though you're waiving your right to appeal, comma, under the grounds of reasonableness.

[00:40:58] Speaker 04:
Now, is it likely that... May I keep going?

[00:41:01] Speaker 04:
Sure, sure, yeah.

[00:41:03] Speaker 04:
You understand that, right?

[00:41:05] Speaker 04:
Defend it with three years of college education.

[00:41:08] Speaker 04:
Yes, Your Honor, I do.

[00:41:10] Speaker 01:
Yeah, but I... Understand what?

[00:41:12] Speaker 01:
I could understand that to mean... I could understand it perfectly clearly to mean that I have a right under limited circumstances to appeal on the grounds of reasonableness.

[00:41:20] Speaker 01:
I can say, yeah, I understand that.

[00:41:22] Speaker 04:
And I would submit that if that ambiguity is read in the context of the written waiver, it's clear what those are.

[00:41:29] Speaker 03:
That's the reason I was going to get the question.

[00:41:31] Speaker 03:
Why should we read it in the context of the written agreement?

[00:41:35] Speaker 03:
Do you have case law out there that tells us that that's what we're supposed to do?

[00:41:39] Speaker 03:
I don't have that, Your Honor.

[00:41:40] Speaker 03:
Because as I understand the purpose of the rule of oncology, it sounds like it's a standalone inquiry.

[00:41:45] Speaker 04:
If I can find some, could I submit it to the court?

[00:41:48] Speaker 02:
I have one more question.

[00:41:52] Speaker 02:
It is going back to how the

[00:41:56] Speaker 02:
the description of the offense and the plea agreement that pegs the guidelines framework comes about within the government.

[00:42:06] Speaker 02:
And you mentioned that the, we know that one of the factors for enhancement was the inventory of images.

[00:42:16] Speaker 02:
Why was the possessed images that weren't themselves distributed

[00:42:25] Speaker 02:
included in the statement of offense.

[00:42:30] Speaker 02:
I thought the statement of offense, the distribution, would be a statement of the facts of the distribution, the charged conduct.

[00:42:41] Speaker 02:
And isn't there some legal, I mean, it matters what's in the statement of offense, right?

[00:42:46] Speaker 04:
Well, the statement of offense, in this case, you'll recall that the government proffered, and there were three times where there was an attempt at taking this plea.

[00:42:54] Speaker 04:
The first time was at arraignment.

[00:42:57] Speaker 04:
The magistrate judge said, no, we're just doing arraignment.

[00:43:00] Speaker 04:
The second time was in front of Judge Leon, where there was a more fulsome statement of the offense.

[00:43:04] Speaker 04:
And Judge Leon ordered the court, the government, to take out all facts that didn't go directly to the plea.

[00:43:10] Speaker 04:
And so that may be why.

[00:43:12] Speaker 02:
Right.

[00:43:13] Speaker 04:
And so but but clearly.

[00:43:14] Speaker 02:
And then it came back to him and he said, wait a minute.

[00:43:17] Speaker 02:
He said, wait a minute.

[00:43:18] Speaker 02:
You still have some facts in here.

[00:43:21] Speaker 02:
that go to possession that aren't really distribution facts, that you're giving descriptions of infants.

[00:43:30] Speaker 02:
And he hesitated whether he would send that back again to have that taken out.

[00:43:37] Speaker 02:
And he didn't.

[00:43:38] Speaker 02:
But I'm just asking in terms of the logic of the government.

[00:43:42] Speaker 02:
And one of the things that I noticed that Judge Leon said, who is a very experienced judge, when he first said, you can't put in that statement of offense the information about his prior conduct with minors because it wasn't clear whether he was just bragging and making it up or whether there really was.

[00:44:02] Speaker 02:
And the government's investigation couldn't substantiate that.

[00:44:04] Speaker 02:
So he said, you have to take that out.

[00:44:05] Speaker 02:
And he said, that follows this person for the rest of his life.

[00:44:10] Speaker 02:
But, Your Honor.

[00:44:11] Speaker 02:
Wait.

[00:44:11] Speaker 02:
The statement of offense.

[00:44:13] Speaker 02:
So the question is, the government absolutely can prove conduct relevant to sentencing at sentencing.

[00:44:20] Speaker 02:
My question is, why?

[00:44:21] Speaker 02:
What's the?

[00:44:22] Speaker 02:
Which we did.

[00:44:23] Speaker 02:
What's going on?

[00:44:25] Speaker 02:
Well, you didn't have to.

[00:44:26] Speaker 02:
You didn't have to.

[00:44:27] Speaker 02:
Because it was in.

[00:44:28] Speaker 02:
So no.

[00:44:28] Speaker 02:
Why are you looking at us?

[00:44:29] Speaker 02:
Don't fight with me.

[00:44:29] Speaker 02:
I'm trying to understand.

[00:44:32] Speaker 04:
I don't think you're being fair to the government, honestly.

[00:44:34] Speaker 04:
I don't think you're being fair to the government.

[00:44:37] Speaker 04:
I really don't.

[00:44:38] Speaker 04:
I mean, not like cosmically unfair.

[00:44:40] Speaker 04:
I just think that this argument is not unfair.

[00:44:42] Speaker 02:
I'm not making an argument.

[00:44:43] Speaker 02:
I'm asking you questions as a representative for the United States of America.

[00:44:47] Speaker 04:
They agreed that this irrelevant conduct was accurate.

[00:44:50] Speaker 02:
I'm asking you a question.

[00:44:50] Speaker 02:
I'm not arguing with you.

[00:44:52] Speaker 04:
Yes, Your Honor.

[00:44:54] Speaker 04:
I'm sorry.

[00:44:55] Speaker 04:
I'm sorry if I did not mention this.

[00:44:57] Speaker 02:
You're being very tendentious, and I think you're misunderstanding.

[00:45:00] Speaker 02:
the perspective from which I come.

[00:45:02] Speaker 04:
I don't understand why, at this point, it's the government's burden to prove to this court relevant conduct that the parties agreed to, stipulated to, at sentencing.

[00:45:14] Speaker 04:
That seems to me to be unfair.

[00:45:16] Speaker 04:
And if the court is not saying that, then I apologize.

[00:45:18] Speaker 02:
I'm not.

[00:45:18] Speaker 02:
That's the point I'm trying to make.

[00:45:19] Speaker 02:
I'm not.

[00:45:19] Speaker 02:
I'm asking you, and perhaps I'm unfairly asking you, to help me understand how you operate.

[00:45:27] Speaker 02:
so that I can more effectively fulfill my responsibility.

[00:45:31] Speaker 04:
I'll try to be a better listener, Your Honor.

[00:45:32] Speaker 04:
I'm sorry if I've upset the court.

[00:45:35] Speaker 02:
So my question is, what's at stake when the government puts something in the statement of offense as opposed to in a description of related conduct or doesn't put it in a plea agreement and simply proves it at some extent?

[00:45:56] Speaker 02:
What is at stake?

[00:45:57] Speaker 02:
I don't know the answer to that.

[00:45:59] Speaker 02:
I would like you to help me understand that.

[00:46:02] Speaker 04:
Off the top of my head, Your Honor, the obligation to prove that relevant conduct does not occur until sentencing, as I understand it.

[00:46:11] Speaker 04:
And that's a preponderant standard at that point.

[00:46:15] Speaker 04:
And so I think Judge Leon's point, which could be valid, is, well, you've agreed to the relevant conduct.

[00:46:24] Speaker 04:
in the plea agreement and you're agreeing to it at sentencing.

[00:46:30] Speaker 04:
Therefore, in the plea colloquy, do we really need to have it here again?

[00:46:35] Speaker 04:
I think that's a point that he might, and I think he had a concern about, as I understand it, the dissemination of the colloquy being perhaps

[00:46:48] Speaker 04:
additional prejudice in the transcript.

[00:46:51] Speaker 04:
I didn't understand those concerns as, yeah.

[00:46:59] Speaker 04:
Trial counsel's here with me and my supervisor, and they're suggesting, and as I also recall, that the big thing that was taken out at the statement of defense was the

[00:47:10] Speaker 02:
his bragging well i didn't say that i didn't you didn't say that right but i think you're going to know it this is my question one of things is that he's more experienced with these matters probably than most of us he said i'm concerned that the information statement of defense will travel with this individual for the rest of his life does that go into a sex offender registry what does he mean by that is that made public is that part of the conviction that's on the public record i don't know the answer to that

[00:47:40] Speaker 02:
I'm just wondering what, if there's these three different points where the government could put information in the statement of offense within the plea agreement, not within the statement of offense, but elsewhere in the plea agreement, or not in the plea agreement and at sentencing, I'm trying to understand the logic of where that information goes.

[00:47:58] Speaker 02:
That's my question.

[00:47:59] Speaker 02:
And if you can, I said fine.

[00:48:00] Speaker 02:
And I've taken you much further over your time.

[00:48:02] Speaker 02:
And I really appreciate your indulgence in supporting both of us and doing our jobs responsibly.

[00:48:09] Speaker 04:
It's my job to try to answer the court's questions as best I can to try to help the court.

[00:48:13] Speaker 04:
And I am trying to do that despite my prickly nature.

[00:48:16] Speaker 04:
So I apologize to the court.

[00:48:19] Speaker 04:
If no further questions, we will submit and ask the court to affirm.

[00:48:23] Speaker 03:
Thank you.

[00:48:23] Speaker 03:
Ms.

[00:48:23] Speaker 03:
Davis, we'll give you back three minutes for rebuttal.

[00:48:28] Speaker 05:
I don't think I'll take three.

[00:48:29] Speaker 03:
OK.

[00:48:30] Speaker 05:
In answer to the question about which cases are most like this one, I would point to the United States v. Fry.

[00:48:41] Speaker 05:
In that case, the defendant said he sexually abused his daughters, and he sent videos and images to the undercover person in that case.

[00:48:52] Speaker 05:
In the United States v. Essex, the defendant sentenced 42 months

[00:48:57] Speaker 05:
In that case, the defendant agreed to meet the undercover for purposes of engaging in sexual acts with the undercover's reported 9-year-old daughter.

[00:49:07] Speaker 05:
I think especially, ethics is very close to the facts in this case.

[00:49:12] Speaker 01:
Ms.

[00:49:12] Speaker 01:
Fry was just a possession case, not a distribution one.

[00:49:16] Speaker 05:
And I think that

[00:49:19] Speaker 05:
I think it was a plea to possession, but I. But he was convicted of possession.

[00:49:23] Speaker 05:
Right, he was convicted of possession.

[00:49:24] Speaker 05:
Not convicted of distribution.

[00:49:25] Speaker 05:
And that gets back to the original point that was brought up earlier in that Mr. Matea anticipated being sentenced, his guidelines being determined based on a possession standard as opposed to a distribution.

[00:49:44] Speaker 05:
And I think those are the two cases that are strongest.

[00:49:47] Speaker 05:
But again, I would point the court to the sentencing memorandum that's in the joint appendix.

[00:49:53] Speaker 05:
And I believe the cases start on page 150.

[00:49:59] Speaker 05:
Yeah, on 150 of the joint appendix.

[00:50:02] Speaker 05:
And there's numerous cases cited, although a lot of them are possession.

[00:50:06] Speaker 05:
A lot of them have underlined facts that involve distribution.

[00:50:11] Speaker 05:
And if there's no further questions, I would ask that the sentence be vacated and the case remanded.

[00:50:18] Speaker 03:
Ms.

[00:50:18] Speaker 03:
Davis, you were appointed by the court to represent the appellant in this case, and the court thanks you for your assistance.

[00:50:25] Speaker 03:
The case is submitted.