[00:00:01] Speaker 03:
Case number 16-3089, United States of America versus Robert Smith, appellant.

[00:00:09] Speaker 03:
Mr. Axum for the appellant.

[00:00:11] Speaker 03:
Mr. McGovern for the appellee.

[00:00:14] Speaker 01:
Good morning.

[00:00:15] Speaker 01:
Good morning, counsel.

[00:00:17] Speaker 01:
Tony Axum representing the appellant, Robert Smith.

[00:00:20] Speaker 01:
And I'd like to reserve three minutes for rebuttal.

[00:00:24] Speaker 01:
The district court in this case erred in ruling that Mr. Smith was not eligible for a sentence reduction because his Rule 11C1C plea agreement was not based on the guideline sentencing range that had been reduced by Amendment 782.

[00:00:40] Speaker 01:
Under this court's case, United States VF, a sentence is based on the guidelines if it was a relevant part of the analytical framework the judge used to determine the sentence or to approve the agreement.

[00:00:53] Speaker 01:
In this case, the parties agreed upon a specific sentence, 156 months, and at several points within the plea agreement referenced the guidelines.

[00:01:07] Speaker 01:
At least six different paragraphs referenced the guidelines and say that the defendant will be sentenced in accordance with the guidelines.

[00:01:16] Speaker 01:
The ultimate paragraph referencing the guidelines even notes that three points will be taken off for acceptance of responsibility.

[00:01:23] Speaker 01:
In the government sentencing memo, they say that the defendant should be sentenced consistently with the guidelines.

[00:01:33] Speaker 01:
And note that 156 months is near the midpoint of the advisory guideline range.

[00:01:41] Speaker 01:
But the most important factor is what the judge

[00:01:48] Speaker 01:
are the reasons the judge gave for giving the sentence and the framework that the judge used in sentencing the defendant.

[00:01:56] Speaker 01:
The district court began the sentencing by noting that the guidelines range was 140 to 175 months and the negotiated sentence, 156 months, was right smack in the middle of the sentencing guideline range.

[00:02:13] Speaker 01:
um, later in the sentencing proceeding, the judge actually went through the guidelines themselves, told the defendant what

[00:02:21] Speaker 01:
his criminal history category was, what the offense level was, and how that worked into the sentencing matrix to arrive at the sentencing guideline range, even though this was a negotiated sentence of 156 months.

[00:02:36] Speaker 01:
And ultimately, the district court imposed the 156-month sentence, noting that it was authorized by the guidelines.

[00:02:45] Speaker 01:
So this is a case where the guidelines factored heavily into the negotiated sentence and were part of the analytical framework the district court used to sentence the defendant.

[00:03:01] Speaker 01:
So it was legal error for the district court in the 3582 proceedings to decide that, to rule that the defendant was not eligible because

[00:03:15] Speaker 01:
uh, his sentence was not based on the guidelines.

[00:03:18] Speaker 05:
So suppose you're right on that.

[00:03:20] Speaker 05:
The district court, as you know, also went on to alternatively rule that even if eligible for the sentence reduction, she was not going to grant a reduction in this case and explained why.

[00:03:35] Speaker 05:
And it's first question on that.

[00:03:38] Speaker 05:
Our standard of review of that is abuse of discretion.

[00:03:41] Speaker 05:
Correct?

[00:03:42] Speaker 01:
That's correct.

[00:03:43] Speaker 05:
And why is why is that what the judge did not sufficient under our case law, which is, as you know, quite deferential on 35 53.

[00:03:57] Speaker 01:
Well, first and foremost, because the judge that decision was informed by an incorrect understanding of

[00:04:07] Speaker 01:
what the judge had done before.

[00:04:09] Speaker 01:
While it was legal error to find Mr. Smith not eligible, it was also factual in nature because

[00:04:20] Speaker 01:
the district judge believed that the sentencing guidelines didn't have any influence over the negotiated sentence.

[00:04:30] Speaker 01:
And it's not clear from the record whether the district court actually looked back at the sentencing transcript, but the opinion does not cite the sentencing transcript.

[00:04:40] Speaker 01:
The government didn't cite the sentencing transcript in the 3582 proceeding, and the defendant didn't cite the sentencing transcript.

[00:04:49] Speaker 05:
But isn't the district judge in that circumstance saying, just hypothesize, okay, assuming you're eligible for the reduction, my job now is to consider whether the sentence you have

[00:05:04] Speaker 05:
with the sentence you want, whatever sentence is reasonable in light of all the 3553 factors.

[00:05:12] Speaker 05:
And I've determined as the sentencing judge that the sentence you have, which is 13 years, is

[00:05:20] Speaker 05:
the reasonable sentence after considering the factors.

[00:05:22] Speaker 05:
And she identifies a few points on the record.

[00:05:25] Speaker 01:
Well, there's a faulty premise informing the district court.

[00:05:30] Speaker 01:
And the faulty premise is that the original sentence was not based on the guidelines.

[00:05:35] Speaker 01:
And the guidelines are a 3553 factor.

[00:05:38] Speaker 01:
So that factor, when you get to this abuse of discretion standard, is being discounted by the district judge because the district judge believes that it had no influence on the original sentence.

[00:05:50] Speaker 01:
if it did, in fact, have an influence on the original sentence, and the judge is operating under a faulty assumption that it didn't, that's a procedural error.

[00:06:07] Speaker 01:
It's a legal and factual error.

[00:06:10] Speaker 05:
I guess I'm not sure how that would affect your consideration of the current situation, because the current situation

[00:06:19] Speaker 05:
is okay.

[00:06:21] Speaker 05:
The plea agreement, um, but the guidelines are relevant now.

[00:06:29] Speaker 05:
in considering whether the sentence is reasonable.

[00:06:31] Speaker 05:
Is it appropriate and reasonable in light of all the 3553 factors, which you correctly say the guidelines is one of those?

[00:06:38] Speaker 05:
And the district judge here just concludes, yes, I've considered those factors and 13 years is an appropriate sentence.

[00:06:46] Speaker 05:
I guess related questions, that's just a comment really.

[00:06:50] Speaker 05:
The related question is,

[00:06:53] Speaker 05:
what would be the point or what do you think could happen on remand here given what the district judge has already said about this?

[00:07:08] Speaker 01:
If we assume that

[00:07:13] Speaker 01:
What I think could happen on remand is that if the district judge appreciates that the original sentence was based on the guidelines, which incorporate 3553A factors, and those guidelines are now lower, it could have an influence on whether the judge thinks

[00:07:37] Speaker 03:
that this defendant should receive some reduction to his sentence.

[00:07:54] Speaker 03:
dual ruling that the judge did here.

[00:07:58] Speaker 03:
First, it's not based on.

[00:08:00] Speaker 03:
Second, if it were, I think the old sentence is right.

[00:08:07] Speaker 03:
No matter how many other things are in place.

[00:08:12] Speaker 03:
This is hypothetical, it's not this case.

[00:08:19] Speaker 01:
It's difficult.

[00:08:22] Speaker 01:
One is a strictly illegal error, and one is, when you're talking about procedural errors, yes, it's my view that once the district court, that the incorrect assumptions, facts or law, cannot inform, cannot create a reasonable sentence, that it's impossible to get to a reasonable sentence.

[00:08:51] Speaker 03:
cases where the judge mistakenly says it was not based on, there's no point in the judge doing a follow-up sentencing, saying, assuming I'm wrong, and such and such.

[00:09:13] Speaker 01:
Maybe in a hypothetical, if a judge is actually saying, assuming I'm wrong,

[00:09:19] Speaker 01:
that I did rely on the guidelines.

[00:09:21] Speaker 01:
That's not clear here.

[00:09:23] Speaker 01:
All the judge says here is if he were eligible.

[00:09:28] Speaker 03:
There's still- There might turn on the wording with which the judge addressed the possibility of error on the first issue.

[00:09:37] Speaker 01:
I'm sorry?

[00:09:38] Speaker 03:
So the viability of what the judge did on the second issue, the actual decision to change the sentence,

[00:09:47] Speaker 03:
depend upon how the judge frames his or her reaction to the disposition of the first issue.

[00:10:02] Speaker 01:
I do think that's important because the judge may, in explaining the reasons for the sentence,

[00:10:16] Speaker 01:
which is another requirement by the district court, another procedural.

[00:10:22] Speaker 01:
I would say it's a failure in this case to say that the defendant is eligible where you have just said, I

[00:10:36] Speaker 01:
I did not rely on the guidelines.

[00:10:40] Speaker 01:
I mean, there's an inconsistency.

[00:10:42] Speaker 03:
My guess is that there are quite a few cases where we allow court to dispose of one issue one way and then say, I'm assuming I'm wrong on that.

[00:10:55] Speaker 03:
Now I go ahead and do this, even though there's an interlock between the two issues.

[00:11:01] Speaker 01:
No, there is an interlock.

[00:11:04] Speaker 01:
From the district court's point of view, the district court is not, I think, saying he is eligible.

[00:11:13] Speaker 01:
At the first step, the district court made a finding as a matter of law that he was not eligible.

[00:11:22] Speaker 01:
At the second step, the district court is not, I think, saying if I am wrong on the law or

[00:11:31] Speaker 01:
I think the district court is perhaps saying if I'm wrong on the law and he is eligible.

[00:11:38] Speaker 01:
The problem is the district court is wrong on the law and the facts because the facts do not support the district court's

[00:11:50] Speaker 01:
first step finding that the guidelines did not play a factor in his sentence.

[00:11:56] Speaker 05:
But that would mean, I think, that you would always be entitled to the reduction in a case where the agreement was based on the guidelines, which is, under our case law, going to be virtually every case.

[00:12:10] Speaker 05:
No, it wouldn't.

[00:12:15] Speaker 05:
You acknowledge, I think, that this is a discretionary determination by the district judge whether to reduce the sentence.

[00:12:23] Speaker 05:
And our standard reviews for abuse of discretion.

[00:12:25] Speaker 05:
And as you know, our case law is very deferential now, post-Booker.

[00:12:31] Speaker 03:
It's a standard.

[00:12:32] Speaker 03:
It's never been met.

[00:12:35] Speaker 05:
Right.

[00:12:36] Speaker 01:
I realize it's a difficult standard, but perhaps

[00:12:46] Speaker 05:
I mean, I think you'd make a good point in the bigger picture of, hey, we made the plea based on the guidelines.

[00:12:53] Speaker 05:
The guidelines have changed, so the plea would have been different.

[00:12:56] Speaker 05:
So you should bump the census down.

[00:12:58] Speaker 05:
That's a very logical position, in my view.

[00:13:00] Speaker 05:
The problem is the law.

[00:13:04] Speaker 05:
does not require the district judge to follow that path of logic, but instead just kind of gives the discretion of the district judge.

[00:13:10] Speaker 05:
So if I were a district judge, I'd be completely with you.

[00:13:13] Speaker 05:
But our standard of review is different.

[00:13:17] Speaker 01:
Well, to come back to Judge Williams' point about the language that the district court uses, the district court

[00:13:26] Speaker 01:
at the second step.

[00:13:28] Speaker 01:
The district court did not say, I find, as a matter of fact, that the guidelines did inform this sentence.

[00:13:36] Speaker 01:
The district court is assuming that he is eligible.

[00:13:44] Speaker 01:
But at the second step,

[00:13:48] Speaker 01:
I think the facts are more important.

[00:13:51] Speaker 05:
Right.

[00:13:51] Speaker 05:
I can see your point.

[00:13:52] Speaker 05:
The district judge's mindset is a little different.

[00:13:55] Speaker 01:
Right.

[00:13:56] Speaker 01:
The district judge is just saying, and if he's eligible, but the district court is at the same time saying, factually, I did not rely on the guidelines.

[00:14:07] Speaker 01:
In the 3582 proceeding, the district court is not supposed to

[00:14:11] Speaker 01:
be figuring out what it did before and explaining its rationale for the sentence before.

[00:14:19] Speaker 01:
The record speaks for itself.

[00:14:20] Speaker 01:
That's why this court can look at the first step and see the sentencing transcript and see what the district court did before.

[00:14:27] Speaker 01:
And that's why it's, as a matter of law,

[00:14:30] Speaker 01:
either the district court did rely on the guidelines or did not.

[00:14:34] Speaker 01:
But at the second step, the district court is having already determined at the first step that it actually did not, factually.

[00:14:42] Speaker 01:
The second step, it may be saying, maybe legally, if he's still eligible, but factually this district court is still

[00:14:52] Speaker 01:
Again, in the mindset that I did not actually, and that's actually what the district court says.

[00:14:57] Speaker 01:
I mean, it says, here Mr. Smith was not sentenced pursuant to the guidelines.

[00:15:04] Speaker 01:
The plea agreement did not refer to any sentencing range provided by the guidelines, and the guideline range was not a part of the court's calculus in determining the sentence.

[00:15:15] Speaker 01:
There may be cases where the first step can be reconciled with a conditional or an alternative second step.

[00:15:27] Speaker 01:
But I'm saying this is not a case that can be reconciled because at the second step, the district court does not add language such as,

[00:15:39] Speaker 01:
Even if I am factually incorrect, even if my memory is incorrect, the district court is just saying even if under the law he's somehow eligible.

[00:15:51] Speaker 01:
But he's still being disadvantaged because the district court believes factually that the guidelines didn't play a role.

[00:15:59] Speaker 01:
So as the district court does its analysis on the second step, the guidelines and the effect of the guidelines on 3553A

[00:16:08] Speaker 01:
are discounted for this district judge.

[00:16:12] Speaker 01:
And we see that because there's not a lot of other discussion of the 3553 factors.

[00:16:18] Speaker 01:
I'd also submit to the court that the district court plainly does not respond, doesn't provide an explanation for why

[00:16:31] Speaker 01:
He is a danger, why his post-conviction rehabilitation doesn't warrant a sentence reduction.

[00:16:38] Speaker 05:
We have a lot of case laws you're familiar with that says the district court does not need to expressly identify every factor.

[00:16:46] Speaker 01:
Not every factor, but has to respond to non-frivolous

[00:16:49] Speaker 05:
Well, we've said, nor does it require the court to address expressly each and every argument advanced by the defendant.

[00:16:58] Speaker 05:
We've said that to cases like Locke and Knight.

[00:17:03] Speaker 05:
So we've been, on that score as well, very deferential to the district courts.

[00:17:09] Speaker 05:
I take your point on that explanation.

[00:17:11] Speaker 05:
Why don't we hear from the government and we'll give you some time on rebuttal.

[00:17:24] Speaker 02:
Good morning, Your Honors.

[00:17:27] Speaker 02:
Michael McGovern on behalf of the Appellee of the United States.

[00:17:33] Speaker 02:
The district court did not err when it determined the appellant was not eligible for a sentencing reduction, because as the sentencing court expressly acknowledged in its order denying the appellant's motion, the guidelines range was not a part of the court's calculus in determining the sentence.

[00:17:51] Speaker 02:
Indeed, the record clearly shows that what was the overarching framework for the district court's acceptance of the 11C1C plea was the fact that the plea was wired to three co-defendants who were also pleading guilty pursuant to 11C1C plea.

[00:18:10] Speaker 00:
It doesn't have to be the overarching factor.

[00:18:13] Speaker 00:
It just has to be a factor.

[00:18:16] Speaker 00:
I have trouble seeing this record as clear given the number of comments that the district court made about the sentencing guidelines.

[00:18:26] Speaker 00:
How can we determine that this isn't

[00:18:29] Speaker 00:
wasn't a factor when she talked about, first of all, the entire sentencing was set up as we're going to only plead to this offense, and here is the range for that offense.

[00:18:40] Speaker 00:
And this agreement is right smack in the middle of it, and the acceptance of responsibility in the other discussion.

[00:18:46] Speaker 00:
How can we not say that it wasn't a part?

[00:18:48] Speaker 00:
Might not have been the biggest part, but it was a part.

[00:18:53] Speaker 02:
So, Your Honor,

[00:18:55] Speaker 02:
The court needs to find under Epps' adoption of Freeman's plurality opinion that it was a relevant part of the analytic framework that the court used to accept the agreement.

[00:19:10] Speaker 02:
Appellant's counsel rightly indicates that at the very beginning of the sentencing hearing, there was a statement that the district court made to the defendant that this particular number fell within what would be the guidelines range for that particular offense to which he was pleading guilty.

[00:19:28] Speaker 02:
However, that entire discussion, indeed the first

[00:19:32] Speaker 02:
half of the transcript of the sentencing hearing was not related to the sentencing itself.

[00:19:37] Speaker 02:
When the defendant, when the appellate in this case, came into the court that day, it was not at all clear to any of the parties that he would be moving forward to sentencing that day.

[00:19:46] Speaker 02:
Instead, he was still determining whether or not he would withdraw that.

[00:19:50] Speaker 02:
As one factor of his consideration, the court did note that this agreed upon sentence fell within the guidelines range.

[00:20:00] Speaker 00:
Why isn't that helping him to understand why this plea is structured as it is, as he's considering whether to accept it, to say, look, the sentencing guidelines are the framework here for this entire deal and for my decision making and whether to approve it?

[00:20:20] Speaker 02:
So it is true that the sentencing guidelines were the framework.

[00:20:25] Speaker 02:
But the sentencing guidelines also provide for mandatory minimums.

[00:20:29] Speaker 02:
And here, there were enhancement papers that could have been filed on one of the charges to which he was

[00:20:36] Speaker 02:
subject that would have made him a mandatory life sentence.

[00:20:40] Speaker 00:
Well, that just makes the sentencing guidelines at our issue here even more the exact framework for this entire plea, because we weren't going with the life argument.

[00:20:50] Speaker 00:
The entire structure under which this deal was framed and his sentence was determined and the district court determined whether it was a reasonable thing for it to accept was the sentencing guidelines framework.

[00:21:04] Speaker 02:
What else did you rely on?

[00:21:05] Speaker 02:
Your Honor, I think there's a difference between saying that the sentencing guidelines are a relevant factor and the sentencing guidelines range that was then subsequently lowered is a relevant factor in the framework.

[00:21:18] Speaker 02:
Why?

[00:21:19] Speaker 02:
Why would we parse that that way?

[00:21:22] Speaker 02:
Because, Your Honor,

[00:21:24] Speaker 02:
Here, the overarching framework was that the court accepted 13 years as a reasonable sentence because the defendant was facing life papers.

[00:21:35] Speaker 02:
That statutory enhancement wasn't ever subsequently amended, so the basis for returning to and reducing the sentence

[00:21:44] Speaker 02:
under 3582 is no longer there.

[00:21:47] Speaker 02:
There's no reason because the primary factor for which he is negotiating his plea agreement hasn't been amended downwards.

[00:21:56] Speaker 00:
Well, let me ask you, you said, you came in and said, look, what was really driving all this was that it was a wired plea.

[00:22:03] Speaker 00:
That was the big thing.

[00:22:04] Speaker 00:
This was a wire plea in 11C1.

[00:22:05] Speaker 00:
I don't want to put words in your mouth, but that was my understanding of how you came into the overarching factor.

[00:22:12] Speaker 02:
I was going to mention that there were a number of overarching factors.

[00:22:16] Speaker 02:
One was that it was a wire plea, but also that this appellant was subject to mandatory life papers on his charges.

[00:22:23] Speaker 00:
So I'm trying to understand what the district court's supposed to do in a case like this, where it's 11C1, so a number, they come in with it.

[00:22:33] Speaker 00:
They come in with a number.

[00:22:35] Speaker 00:
And then you all come and say it's a wired plea.

[00:22:37] Speaker 00:
It's either this or four or five trials are going to have to go, or a trial with four or five defendants.

[00:22:42] Speaker 00:
I wasn't sure how you were going to do it.

[00:22:44] Speaker 00:
It's a wired plea, and otherwise he's facing life.

[00:22:49] Speaker 00:
When the district court is evaluating whether to accept

[00:22:53] Speaker 00:
that plea.

[00:22:53] Speaker 00:
If not to look to the guidelines, what is the district court supposed to do to measure?

[00:23:01] Speaker 00:
How else is the district court supposed to measure whether this is a responsible thing for the court to accept?

[00:23:08] Speaker 02:
What the court did in this case, according to the language of page 16 of the transcript, is it looked to whether or not, under the statutory factors, the sentence was sufficient but not greater than necessary to fulfill the goals of sentencing, and then pointed to the factors that she believed met that criteria, and the factors to which... And the sentencing guidelines was part of that consideration, right?

[00:23:32] Speaker 02:
she never expressly, once she identifies that as the test she is applying, she never returns to the sentencing range that she had previously calculated.

[00:23:41] Speaker 02:
Because your honor is right, she did calculate the sentencing ranges as required.

[00:23:44] Speaker 02:
But once she begins the analysis of the reasonableness of the 11C1C plea, she never again mentions that guideline range.

[00:23:52] Speaker 02:
Rather, she mentions that the defendant avoids a mandatory life term by entering his plea, which he has done.

[00:23:59] Speaker 03:
So again, her framework.

[00:24:12] Speaker 03:
which could have been treated differently, right?

[00:24:17] Speaker 03:
I mean, that seems to me inevitable to a CBC plea.

[00:24:25] Speaker 03:
All kinds of things could have happened if they hadn't been a plea.

[00:24:29] Speaker 03:
And sure, it's fine for the court to mention them, and indeed, maybe, I'm hardly suitable to mention them.

[00:24:37] Speaker 03:
But you're weeding out

[00:24:42] Speaker 03:
the fact that the plea is plunked in the middle of the guideline range of what the defendant pleads to, and that is noted affirmatively by the court.

[00:24:57] Speaker 03:
If in that context, it isn't based on the guidelines, I'm not sure how it can ever be.

[00:25:03] Speaker 03:
It's a realistic matter.

[00:25:05] Speaker 02:
And again, Your Honor, our position is that

[00:25:10] Speaker 02:
EPS requires us to look at the framework that the court is applying to accept this number as a plea.

[00:25:18] Speaker 02:
And the framework that this court applied was looking at the life paper enhancements that this appellant was facing

[00:25:25] Speaker 02:
and then recognizing that 13 years was a reasonable departure from that potential sentence, and not looking at the fact that that sentence, that 13 years, also happened to fall within the guidelines range for this particular offense.

[00:25:42] Speaker 02:
Again, once the court addresses... I guess I'm really confused because...

[00:25:46] Speaker 00:
On page 1516, we have the defendant going, OK, OK, I'm ready to go forward.

[00:25:51] Speaker 00:
I'm going to take the plea.

[00:25:53] Speaker 00:
And so now the court, as you said, is transitioning to, OK, is this an acceptable sentence?

[00:26:00] Speaker 00:
And she says, the first thing we do is look at the sentencing guidelines.

[00:26:03] Speaker 00:
This is after he's agreed to accept the plea.

[00:26:05] Speaker 00:
The first thing we do, and then she does criminal history category.

[00:26:09] Speaker 00:
And then on page 16, we start with the idea that 11C1 plea is authorized by the sentencing guidelines.

[00:26:14] Speaker 00:
So I don't understand your argument that she never talked about the sentencing guidelines when she got to this phase of the hearing.

[00:26:20] Speaker 02:
So again, Your Honor, I'd like to make a distinction between whether the sentencing guidelines and the sentencing guidelines range that was subsequently amended.

[00:26:28] Speaker 02:
But I'd also point, Your Honor, to United States versus Cook, where this court found, in a situation where there was an applicable mandatory minimum, although the district court in that case had calculated the guidelines range that was a part of the sentencing hearing,

[00:26:43] Speaker 02:
The court's decision of applying that mandatory minimum to that defendant was not based on the guidelines range that was subsequently amended down.

[00:26:54] Speaker 02:
Now, I would also point to the language on page 16 where the court notices that an 11C1C plea is authorized by the citizen guidelines.

[00:27:02] Speaker 02:
Cooks before Freeman.

[00:27:04] Speaker 02:
Cooks before Freeman, right?

[00:27:06] Speaker 02:
Yes, Your Honor, but there was nothing within Freeman that

[00:27:11] Speaker 02:
He had been the language of Freeman that necessarily Aberdeen's cook.

[00:27:16] Speaker 02:
I'm sorry, I interrupted.

[00:27:18] Speaker 05:
No, I just wanted to point out that cook was before Freeman and Epps.

[00:27:23] Speaker 05:
I take your point that it carries on.

[00:27:26] Speaker 02:
I would also point on page 16 to language where when noting that 11C1C is permitted by the guidelines, the court also refers to this as a variance sentence.

[00:27:37] Speaker 02:
And so you can see that the framework that the court is applying is that her acceptance of this 11C1C is varying.

[00:27:45] Speaker 02:
And that's actually explicitly stated in the district court's decision below.

[00:27:49] Speaker 05:
But how much you're varying and

[00:27:51] Speaker 05:
The fact that you're even talking about varying and thinking about varying shows that the guidelines are an anchor to what you're contemplating as a judge.

[00:28:03] Speaker 02:
But Your Honor, if she was accepting 156 months as within the guidelines range, it wouldn't have been a variance.

[00:28:11] Speaker 02:
Rather, this shows that her

[00:28:14] Speaker 02:
I see what you're saying.

[00:28:15] Speaker 02:
Her framework for this particular plea agreement was the mandatory life papers that were, and that in fact is what she then expressly states in her opinion below.

[00:28:26] Speaker 02:
Now, even if this, unless there are any other further questions on that issue.

[00:28:29] Speaker 05:
Well, I just think you're, I mean, you're tilting that windmill a little bit on that, on that issue.

[00:28:34] Speaker 05:
What about the alternative argument that the district court recognized in the alternative that

[00:28:44] Speaker 05:
She had discretion, but was declining to exercise that discretion in this case, given all the factors.

[00:28:50] Speaker 02:
Yes, Your Honor.

[00:28:55] Speaker 02:
Even if appellant were eligible, the district court properly exercised its discretion in this case.

[00:29:01] Speaker 02:
Not only did the court recognize that it had discretion and recognize that the standard that it would need to apply to a sentencing reduction was a reconsideration of the statutory factors in 3553A,

[00:29:15] Speaker 02:
She also then went through an analysis of why she believed that... She gave a reason.

[00:29:21] Speaker 03:
She gave a reason for... But it's not disputed that she didn't address reasons going the other way.

[00:29:29] Speaker 03:
She did not explicitly address...

[00:29:34] Speaker 03:
to any circuit court decision reviewing a sentence or refusing to change a sentence which leaves the sentence above the new guideline range and doesn't respond at all to objections to retention of the old sentence, upholding silence by the court on that.

[00:30:04] Speaker 02:
Not as I stand here today.

[00:30:06] Speaker 02:
However, Your Honor, I would note we're in a slightly different posture than that, which is this court recognized that there were mandatory sentencing papers that would imply to be a life enhancement.

[00:30:15] Speaker 02:
So in fact, the 13 years that she believed was appropriate and she was upholding was below what he would have received had he gone to trial.

[00:30:22] Speaker 00:
Hang on.

[00:30:23] Speaker 00:
We don't do a complete do-over on these.

[00:30:26] Speaker 00:
on these decisions.

[00:30:27] Speaker 00:
We don't get to suddenly say, fine, let's have an entirely new sentencing that brings in the enhancement and the life papers.

[00:30:34] Speaker 00:
What you do is we decide whether it was eligible for resentencing, and then the decision is made only about correcting

[00:30:43] Speaker 00:
the error or the correcting the chain based on the change that was worked in the guidelines you don't get to have a do over bringing all new things and start a whole new conversation about what the right sentence is so i don't know why the life factor comes in but this wasn't a lot of things that was agreed upon stipulated play that both the appellant and

[00:31:02] Speaker 02:
the government had agreed was appropriate in this case.

[00:31:06] Speaker 02:
And looking to the 3553A factors, this court determined that that 13 years was an appropriate sentence for him, particularly in light of the fact that he was a danger to the community and that he had committed these offenses while on release for prior drug and gun offenses.

[00:31:22] Speaker 03:
You seem to assume that because there may be, I think there are,

[00:31:27] Speaker 03:
reasons for not changing the sentence.

[00:31:31] Speaker 03:
That means there's no need to at least detectively consider arguments that point the other way.

[00:31:39] Speaker 03:
That doesn't seem like an ordinary exercise of discretion.

[00:31:48] Speaker 02:
prior opinions have made clear that she need not express, the district court need not expressly state her considerations, provided that she does consider the factors.

[00:31:58] Speaker 02:
And based on her opinion, she does indicate that she's considering those factors in this case and notes that... Where does she indicate that she's giving any consideration to mitigating evidence?

[00:32:10] Speaker 00:
I get that the judge doesn't have to march through each

[00:32:14] Speaker 00:
provision and sub-provision of 3553, but is there anything in this one paragraph that acknowledges anything going the other way?

[00:32:30] Speaker 02:
There is the statement in the paragraph that Mr. Smith poses a danger to the community.

[00:32:35] Speaker 02:
The argument that Mr. Smith had made below was that he had engaged in post-conviction rehabilitation while at the jail.

[00:32:42] Speaker 02:
But her determination that his prior history and the fact that he was willing to commit these crimes while on release

[00:32:50] Speaker 02:
resulted in her finding him a danger to the community, which implicitly rejects.

[00:32:54] Speaker 00:
Well, or that was all before.

[00:32:56] Speaker 00:
That just means like the district court stopped sort of at the record that was before her in the original sentencing and doesn't seem to have looked at anything that's happened in the intervening years.

[00:33:07] Speaker 03:
You can argue, and I hate that you are arguing, that when a sentencing judge points to one factor that supports the sentence and then opposes the sentence, it's implicit that the sentencing judge is rejecting all other considerations.

[00:33:27] Speaker 05:
Our cases say that.

[00:33:29] Speaker 03:
Well, I don't know if they can fight that far.

[00:33:31] Speaker 03:
We have to put other details.

[00:33:34] Speaker 03:
But I don't think there's any circuit court that applies such a view to an above new guidelines sentence.

[00:33:42] Speaker 03:
And there's at least one that says that's not enough.

[00:33:45] Speaker 02:
Christie.

[00:33:48] Speaker 02:
And Your Honor, it would be our position that in finding him a danger to the community, she was implicitly rejecting his argument.

[00:33:55] Speaker 03:
That says there's no need for any clue, however slight, except for the sentence itself, that the judge considered count daily factors.

[00:34:10] Speaker 02:
We do see, however, that the judge cites to the defendant's motion and cites to, when discussing in the context of whether or not 3582 is applicable, the arguments that he made on pages four and five of his brief.

[00:34:25] Speaker 02:
And it is on page five of his brief that he raises his argument that she should consider his post-conviction.

[00:34:34] Speaker 02:
Go ahead.

[00:34:35] Speaker 02:
And so therefore, there is an implication that she read those pleadings.

[00:34:38] Speaker 02:
She considered those pleadings.

[00:34:39] Speaker 05:
Don't we have to assume that she read the pleadings?

[00:34:41] Speaker 05:
Yes.

[00:34:42] Speaker 05:
OK.

[00:34:43] Speaker 05:
Because otherwise, we're saying the district judge was in dereliction of duty.

[00:34:48] Speaker 05:
You assume the district judge read the pleadings.

[00:34:52] Speaker 05:
And if you've read the pleadings, you have been confronted with the defendant's arguments.

[00:34:58] Speaker 05:
And then you reject them.

[00:34:59] Speaker 05:
You don't have to, under our case law explicitly,

[00:35:03] Speaker 05:
I'm not going to go through every factor.

[00:35:06] Speaker 05:
Now, Judge Williams is saying though, maybe there should be a different, I think he's saying, put words in his mouth, maybe there should be a different rule, at least in this context, where the new sentence is above the guidelines range.

[00:35:19] Speaker 05:
So why not have that?

[00:35:24] Speaker 05:
a new rule that requires an explicit yes rejection of in other words the district judges feet to the fire not you you not only have to actually do your job and read the papers you have to actually write sentences that uh... expressly mention those those arguments

[00:35:42] Speaker 02:
As I stand here today, I don't know of any precedent personally that would prevent that type of a rule.

[00:35:48] Speaker 02:
If that were the rule, which has not been articulated by that passion before, then I think it calls into question whether she explicitly addressed that in this case.

[00:36:01] Speaker 02:
But that wasn't the legal rules under which I believe she was operating.

[00:36:08] Speaker 02:
at the time that she offered this opinion and did indicate that she believes him a danger.

[00:36:12] Speaker 00:
Is there a requirement to do a more thoroughgoing explanation for a variance than there is for a within range decision?

[00:36:23] Speaker 02:
Sorry, I'm not sure about it as I stand here right now.

[00:36:32] Speaker 02:
If there are no further questions, the government would ask that the district court's opinion below be affirmed.

[00:36:39] Speaker 05:
Thank you very much.

[00:36:40] Speaker 05:
We'll give a couple minutes on rebuttal.

[00:36:50] Speaker 01:
Well, we understand that district court does not have to march through every single statement or argument made at sentencing and reject or accept it.

[00:37:03] Speaker 01:
The district court does have to respond to non-frivolous arguments.

[00:37:07] Speaker 01:
This was not a lengthy sentencing.

[00:37:09] Speaker 05:
That's not what our case hall says.

[00:37:11] Speaker 05:
Our case hall expressly says the contrary to that.

[00:37:15] Speaker 05:
Now, there could be a different rule.

[00:37:18] Speaker 05:
in an above-guidelines sentencing reduction situation.

[00:37:23] Speaker 05:
But we specifically said you're not required to address expressly each and every argument advanced by the defendant.

[00:37:31] Speaker 05:
So I mean, there could be a different rule here.

[00:37:33] Speaker 01:
I accept that holding by this court, that precedent by this court.

[00:37:40] Speaker 01:
I take exception to it.

[00:37:43] Speaker 00:
Does the variance have to go?

[00:37:45] Speaker 00:
Go ahead.

[00:37:46] Speaker 00:
I'm sorry.

[00:37:46] Speaker 01:
Given that Rita says,

[00:37:49] Speaker 01:
The district court procedural reasonableness requires the district court acknowledge the existence of non-frivolous argument by a party and provide a reasoned basis for why it rejects or accepts the argument.

[00:38:06] Speaker 01:
demonstrating the effect of the argument on the ultimate sentence.

[00:38:12] Speaker 01:
So just in terms of procedural reasonableness, we think that a court should, I understand that they don't have to hit every single thing, but

[00:38:25] Speaker 01:
especially in these circumstances where everything is on the papers.

[00:38:29] Speaker 01:
These are not long, complex arguments.

[00:38:34] Speaker 01:
Maybe perhaps a longer complex more would be required, but it's a simple thing to assure the public and the defendant that the court has taken

[00:38:47] Speaker 01:
the argument seriously.

[00:38:50] Speaker 00:
Do you, do you, do you read Gall as requiring that, Spunkard's decision in Gall is requiring a bit more explanation for a variance than for a within range?

[00:39:02] Speaker 01:
Absolutely, yes.

[00:39:03] Speaker 01:
We all know there's a presumption that within guideline sentence is reasonable.

[00:39:11] Speaker 01:
So where a court varies from the guidelines and imposes something higher or lower.

[00:39:16] Speaker 05:
But there can't be a presumption that in our guideline sentence is unreasonable because otherwise I'd be inconsistent with Booker as the Supreme Court saw.

[00:39:23] Speaker 01:
I'm not suggesting that it's unreasonable.

[00:39:25] Speaker 01:
I'm just, again, in terms of

[00:39:28] Speaker 01:
how much explanation a court needs to provide.

[00:39:32] Speaker 01:
Certainly, it's a sliding scale, given, again, maybe the complexity of the arguments.

[00:39:39] Speaker 03:
Piles relied significantly on the proposition that it was a within-guidelines sentence.

[00:39:44] Speaker 01:
I'm sorry.

[00:39:45] Speaker 03:
Piles, in formulating its requirements, relied significantly on the idea that the sentence was within guidelines.

[00:39:56] Speaker 00:
When in these cases where we've said, of course the district court doesn't have to march through every piece of evidence assembled.

[00:40:07] Speaker 00:
Are you aware of cases where there's been a categorical complete silence about all of the mitigating evidence and we've said that's okay?

[00:40:19] Speaker 01:
I'm not aware of a case where the court has said it's OK, where there's complete silence.

[00:40:23] Speaker 01:
In fact, the United States beat big lead the court remanded because there was silence in the face of non-frivolous arguments.

[00:40:31] Speaker 05:
And the problem here is that our case laws told the district courts what they need to do.

[00:40:36] Speaker 05:
And I'm sure they would do whatever we tell them to do.

[00:40:40] Speaker 05:
I'm pretty confident of that.

[00:40:41] Speaker 05:
But we've told them so many different things.

[00:40:45] Speaker 05:
that I think this district judge presumably understood our case law to say, explain the reasons.

[00:40:51] Speaker 05:
You don't have to deal with every argument raised by the defendant.

[00:40:55] Speaker 01:
Well, along those lines, as I said, the district court didn't respond to the post-conviction rehabilitation arguments.

[00:41:08] Speaker 01:
The government ignores that the district court also did not respond to any guidelines argument.

[00:41:17] Speaker 01:
The guidelines argument is still intact.

[00:41:20] Speaker 01:
And that is a very important argument.

[00:41:23] Speaker 01:
And that's the point that I was trying to make with regard to the abuse of discretion.

[00:41:28] Speaker 01:
The district court doesn't say anywhere in its paragraph denying the sentence reduction that the guidelines

[00:41:39] Speaker 01:
are not a factor.

[00:41:41] Speaker 01:
The guidelines, the old guidelines capture this defendant's criminal history and nature and circumstances of this offense.

[00:41:51] Speaker 01:
The district court, there is silence on the guidelines.

[00:41:54] Speaker 01:
And that being a predominant factor, again, it's another procedural failure by the district court not to acknowledge that our whole basis for asking for this reduction

[00:42:10] Speaker 01:
is that something has changed.

[00:42:13] Speaker 01:
And the guidelines are but one factor, but they incorporate so much of 3553A that here, I think the district court had an obligation, if it was going to say, even if he's eligible, why the new guidelines?

[00:42:27] Speaker 05:
Right.

[00:42:28] Speaker 05:
So that's a narrower argument, and I understand that argument.

[00:42:32] Speaker 05:
And you have your broader argument.

[00:42:33] Speaker 05:
So I think we understand it.

[00:42:35] Speaker 05:
Thank you very much for the arguments.

[00:42:37] Speaker 05:
Thank you.

[00:42:37] Speaker 05:
Case is submitted.