[00:00:02] Speaker 00: The United States of America versus Alvaro of Alvaran Velez, also known as Marcos Appellate. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Hernandez for the appellate. [00:00:11] Speaker 00: Ms. [00:00:11] Speaker 00: Heller for the appellate. [00:00:13] Speaker 00: Ms. [00:00:13] Speaker 00: Hernandez, good morning. [00:00:14] Speaker 00: Good morning, Your Honor. [00:00:15] Speaker 04: May it please the Court? [00:00:16] Speaker 04: I represent Alvaro Alvaran Velez. [00:00:20] Speaker 04: I was appointed to represent him on appeal. [00:00:22] Speaker 04: The case is pretty straightforward. [00:00:24] Speaker 04: He was convicted of a drug trafficking offense of conspiracy to import cocaine into the United States. [00:00:31] Speaker 04: He was sentenced there after the sentencing commission lowered the guidelines for all drug cases, essentially by reducing the offense level by two levels, pretty much across the board. [00:00:43] Speaker 04: He saw the resentencing, the district court opined that if it was up to her, she would definitely reduce the sentence proportionate to what [00:00:56] Speaker 04: to the way in which she had previously treated him at the original sentence, but she felt compelled by the new guideline policy which said you cannot reduce a sentence below the amended guideline range. [00:01:09] Speaker 04: That's the key. [00:01:11] Speaker 04: At the time that he was [00:01:13] Speaker 04: that he committed the offense and that he was sentenced. [00:01:15] Speaker 04: What the guidelines said was that the court should consider a term that it would have imposed had the guidelines been as now constituted. [00:01:28] Speaker 03: Ms. [00:01:29] Speaker 03: Hernandez. [00:01:32] Speaker 03: In what respect would that have covered him? [00:01:36] Speaker 03: As I read 1B1.10 as it existed at the time that your client was sentenced, it only spoke to, under 1B1.10C, only spoke to amendments covered by this policy statement, and it lists [00:02:01] Speaker 03: a number of amendments which of course did not include the amendment that covers your client because that amendment had not yet been made. [00:02:09] Speaker 03: So I don't see how this provision covered him, gave him a more favorable regime at the time he was sentenced or committed the crime as compared to when he was recently sentenced. [00:02:25] Speaker 04: It's correct that 1B1.10 did not have the provision that reduced the guideline amendment for drug cases. [00:02:33] Speaker 04: But it did have the other provision that allowed a court to do a proportional reduction. [00:02:40] Speaker 03: You're talking about B. You're referring to B? [00:02:42] Speaker 04: Excuse me? [00:02:43] Speaker 03: When you said had the other provision allowing a proportional reduction, you're referring to B. Correct. [00:02:48] Speaker 04: The provision that said consider the term you would have imposed. [00:02:53] Speaker 04: And it's correct that at that time, you did not have the drug guideline reduction. [00:02:59] Speaker 04: I would argue is the manner in which the ex post facto clause applies. [00:03:03] Speaker 04: You apply the guideline or the law in effect at the date of sentencing and you exclude that portion that is less favorable to the defendant. [00:03:15] Speaker 04: I think that's how the Supreme Court treated the good time credit law in Weaver versus Graham in 1981. [00:03:24] Speaker 04: So you just excise the part, you don't undo the whole statute. [00:03:28] Speaker 03: But you're saying that it's less favorable than this, the version of 1B1.10 that's at A12 of your brief, which was in effect at the time. [00:03:42] Speaker 03: And my question is, how did that treat him at all, let alone more favorably than under the law at the time of the re-sentencing? [00:03:51] Speaker 04: The part of the policy statement that treated him more favorably was the part that said, when applying a guideline, a retroactive amendment, consider the defendant or consider the term the court would have imposed. [00:04:08] Speaker 04: I admit, Your Honor, that the provision that actually reduced the guideline, the drug guideline, was not in effect at that time. [00:04:15] Speaker 04: So what Mr. Alvaran is seeking is to have the current, [00:04:20] Speaker 04: 1B1.10 apply to him with the guideline reduction for drug cases, but not apply the provision that came into effect in 2010, which precludes a reduction below the amended guidelines. [00:04:36] Speaker 04: So he's asking, apply the current guideline with the amendment 782 for the drug amendment, but do not apply [00:04:45] Speaker 04: an intervening change, which was in 2010 after he committed the offense, which precludes the reduction that's available now. [00:04:52] Speaker 04: Has any federal court done that? [00:04:56] Speaker 04: There is a case by Judge Weinstein in the Eastern District of New York, which has not been reversed, in which the judge essentially said what the [00:05:09] Speaker 04: current policy statement does is it changes the way I'm required to calculate the guidelines. [00:05:18] Speaker 04: Other than that, all the courts of appeals have not. [00:05:21] Speaker 04: And that's a case that came out since your brief? [00:05:24] Speaker 04: Do we have that cited? [00:05:26] Speaker 04: I do not have it cited, Your Honor. [00:05:28] Speaker 04: I apologize. [00:05:28] Speaker 04: But I can bring it to the court's attention. [00:05:30] Speaker 04: It's a lower court case. [00:05:32] Speaker 04: It's not an appellate court opinion. [00:05:35] Speaker 04: It's in the Eastern District of New York. [00:05:38] Speaker 02: There was nothing to have stopped Judge Kessler from going down even lower when she originally sentenced him. [00:05:45] Speaker 02: I know she went to 180 months when his range was 324 to something. [00:05:54] Speaker 02: Correct. [00:05:56] Speaker 02: She said her hands were tied. [00:05:58] Speaker 02: which I understand, but originally she could have gone even lower than 180. [00:06:04] Speaker 04: Correct. [00:06:04] Speaker 04: There was a 10-year mandatory minimum at the time of the original sentence, so she could have sentenced down to 10 years. [00:06:11] Speaker 04: But Judge Kessler, in my experience, always [00:06:17] Speaker 04: to the law and she calculated the guidelines and she found the appropriate guidelines to be above the 15-year census that she imposed. [00:06:26] Speaker 04: She reduced the census as she believed she could, but [00:06:31] Speaker 04: What she said at the resentance, essentially, I believe is, had the guidelines been lower when I originally sentenced, then I would have granted a proportional reduction, which is exactly how this policy statement worked until 2010, when the commission decided to add this phraseology. [00:06:50] Speaker 04: But it's how this policy statement essentially worked. [00:06:54] Speaker 04: from its inception in 1987. [00:06:56] Speaker 04: It always had, the language was tweaked here and there, but it always had this ability of the district court to do a proportional reduction to say, okay, I sentenced you this way when I believe the guidelines were X. Now that the guidelines are below that, I'm still going to [00:07:15] Speaker 04: adopt or not change my rulings on why your sentence should be below the guideline range. [00:07:21] Speaker 04: Essentially, that's what the post-booker guideline sentencing is. [00:07:26] Speaker 04: Apply the guidelines, but then impose a sentence that the court believes is reasonable under all the circumstances. [00:07:40] Speaker 04: The ex post facto clause, now the commission in other ways seeks to limit or seeks to limit the application of the ex post facto clause, but I think that goes well beyond the commission's role. [00:07:52] Speaker 04: It's up to the courts to determine how ex post facto should be applied. [00:07:56] Speaker 04: And again, I go back to the [00:07:59] Speaker 04: two primary cases by the Supreme Court where the court did not look to, essentially, it was good time credit reductions. [00:08:10] Speaker 04: At that moment, the defendants did not have a sentence reduction. [00:08:16] Speaker 04: They just had the possibility of getting a good time credit. [00:08:20] Speaker 04: To me, this 1B1.10 provision is quite similar to that good time credit parole provision that the Supreme Court considered in Weaver v. Graham. [00:08:32] Speaker 03: Assuming that the provision that you are pointing to were still in effect today, that would not support a downward variance at resentencing in your client's case, would it? [00:08:49] Speaker 04: it would allow the court the discretion to to sentence as to consider the term to consider the term it would have imposed except for undersea amendments covered by this policy statement are listed as follows [00:09:06] Speaker 03: and the amendment that lowered the guidelines range for your client is not listed. [00:09:12] Speaker 03: Are you saying that all of those are included but not exhaustive of the list of amendments that would be affected? [00:09:23] Speaker 04: No. [00:09:23] Speaker 04: There's no question that the amendment that benefits my client was adopted by the commission in 2016 after his sentence. [00:09:34] Speaker 03: referring to other guidelines changes and not the guidelines change that lowered the range for his offense. [00:09:40] Speaker 04: The amendment that was made retroactive by the Sensing Commission was an amendment that applied to all drug guidelines essentially. [00:09:47] Speaker 03: Right, but I'm saying the more beneficial guidelines version that you're referring to as your touchstone for your ex post facto analysis, even without the subsequent, this would not actually apply, but you're saying [00:10:02] Speaker 03: So too, the floor, the new floor that constrained the judge's discretion also wouldn't apply, and therefore she'd have discretion. [00:10:13] Speaker 03: So it's not that the discretion would be given to her by the version of 1B110 that is at A12 of your brief. [00:10:24] Speaker 03: It's that the mandatory floor below which she cannot go was not yet enacted. [00:10:30] Speaker 04: Correct. [00:10:32] Speaker 04: I'm saying that apply the guideline policy statement in effect at the date of the resentencing, which has the drug guideline reduction, but exclude or excise on ex post facto grounds the provision that limits the ability of the district court to grant. [00:10:55] Speaker 04: So yes, I'm asking the court to [00:10:58] Speaker 04: pick one from, not pick one from colony, apply the guidelines in effect now, but not that portion of the current guideline that damages him in a way that would not have damaged him. [00:11:11] Speaker 04: And there's no question that it's [00:11:15] Speaker 04: The way most courts of appeals, but I don't believe in this type of a case, most of the court of appeal cases involved, I see my time itself, involved career offended cases, not this type of discretionary sentencing. [00:11:30] Speaker 04: Okay, we'll give you a minute. [00:11:31] Speaker 04: Thank you. [00:11:31] Speaker 04: All right, Ms. [00:11:33] Speaker 04: Heller. [00:11:49] Speaker 01: Good morning, may it please the court, Kirby Heller for the United States. [00:11:54] Speaker 01: An ex post facto law has to present a sufficient or significant risk of increasing the punishment. [00:12:02] Speaker 01: The 2011 amendment to section 1B, 1.10 doesn't do that. [00:12:07] Speaker 01: By its very nature, section 1B, 1.10 applies to legency reductions in sentences when the commission determines after the offense and after sentencing that an amendment to the guideline should be made and it should be retroactive. [00:12:24] Speaker 01: The amendment in this case simply limited the court's leniency to a certain group of defendants, that is, defendants whose sentences under the amended guidelines range would fall under the amendment guidelines range. [00:12:47] Speaker 01: In this case, of course, Mr. Alvaren, when he committed his crime, [00:12:53] Speaker 01: And was sentenced, his base offense level was 38. [00:12:56] Speaker 01: His guidelines range was 324 to 405 months of imprisonment. [00:13:02] Speaker 01: And he was sentenced to a variance sentence well below that, to 180 months. [00:13:08] Speaker 01: There was no, of course, 1B1.10 doesn't even make sense in this context because it applies to post-offense and post-sentencing amendments. [00:13:16] Speaker 01: But in any event, if one just looks at 1B1.10 as Judge Pillard [00:13:21] Speaker 01: noted the amendment to the guidelines drug quantity table was not listed and so a reduction wouldn't have been authorized and Mr. Alvarez had no possibility at the time that there would be this that he was entitled to leniency. [00:13:39] Speaker 03: Is that right? [00:13:40] Speaker 03: Would the judge not have had leeway to following the general principle of the then effective 1B1.10 to vary downward in resentencing? [00:13:53] Speaker 03: Because there wasn't that floor preventing the proportional downward variance at resentencing. [00:13:59] Speaker 03: That's really the obstacle that she faced, isn't it? [00:14:03] Speaker 01: If I'm understanding your question right, at the time of sentencing, of course, the judge, the district court judge, could have sentenced Alvarene to anything 120 months with the mandatory. [00:14:15] Speaker 03: But at the time of re-sentencing, but for [00:14:18] Speaker 03: the amended version of 1B1.10, which placed a floor at the bottom of the new guideline range. [00:14:28] Speaker 03: If that hadn't been in place, it doesn't really matter that the earlier version, the 2006 version of 1B1.10, [00:14:36] Speaker 03: didn't specifically refer to the guideline range, the amendment under which his guideline range was lowered, because the judge still could have varied lower, but for the new floor. [00:14:53] Speaker 01: That's correct, Your Honor, and that of course is what that policy statement does. [00:14:58] Speaker 01: The court is required under 3582C to only reduce the sentence if it's consistent with the applicable policy statement in 1B1.10. [00:15:09] Speaker 01: At the time of this reduction, the commission had determined that there were certain circumstances in which it would grant leniency, but not to defendants whose sentences fell outside of the amended guidelines range. [00:15:23] Speaker 01: Exposed factor was simply not implicated in the case where the court [00:15:28] Speaker 01: has the discretion after the fact to grant leniency but limits it. [00:15:33] Speaker 01: So for example, this case is unlike Weaver and Lintz because in those cases, at the time of the offense, these defendants had some basis for believing that [00:15:45] Speaker 01: with the state statutes actually, had provided notice that they could be eligible for leniency. [00:15:51] Speaker 01: After the fact, it was taken away and their sentences were effectively lengthened. [00:15:56] Speaker 01: That's not the case here. [00:15:57] Speaker 01: Expos facto looks at the time of the offense. [00:16:00] Speaker 01: At the time of the offense, there was no leniency that was then taken away. [00:16:07] Speaker 03: Well, isn't that not quite right? [00:16:09] Speaker 03: And just to push that point, [00:16:11] Speaker 03: At the time of the offense, if a criminal defendant was thinking, well, there's a general trend or guideline lowering on drug offenses and maybe something's going to come along that I'm going to benefit from and given my individual circumstances, at least as the sentencing judge saw them, I might actually get a lower still sentence taking into account proportionally the variance that [00:16:37] Speaker 03: she gave me. [00:16:39] Speaker 03: And then along comes the amended version of 1B1.10 and puts a floor under that that prevents him from benefiting at all. [00:16:48] Speaker 03: And so in a sense it's taking away an opportunity for a kind of, you know, reduction credit as in Lince and as in Weaver, no? [00:16:58] Speaker 01: Well, I think the situations are different because those petitioners and the two Supreme Court cases actually did have the opportunity for leniency. [00:17:08] Speaker 01: Mr. Alvarin didn't at the time of his offense. [00:17:12] Speaker 01: You know, possibly the commission seven years later would reduce drug quantity guidelines, but that was not in effect at the time of his offense, at the time of his sentence. [00:17:23] Speaker 01: What he knew is what his guidelines were. [00:17:26] Speaker 01: 1B1.10 actually had no effect on him because [00:17:31] Speaker 01: It's an after the fact reduction. [00:17:34] Speaker 01: But even if you just look at the terms of 1B1.10, it didn't apply to him. [00:17:39] Speaker 01: And the law, all the surrounding sentencing law also said that any future reduction had to be consistent with the applicable policy statement. [00:17:51] Speaker 03: So is it the government's position that a new law that places hitherto inapplicable [00:18:01] Speaker 03: Limits on reductions of senses can never be exposed factor. [00:18:06] Speaker 03: Is that how is that how broad your position is that that any new law that that limits eligibility for reduced sentence. [00:18:17] Speaker 03: cannot be ex post facto. [00:18:19] Speaker 03: A new law that limits eligibility. [00:18:21] Speaker 01: For leniency that didn't exist at the time of the offense, yes, that would be our position. [00:18:26] Speaker 01: And that's the position that the courts of appeals have uniformly taken in looking at ex post facto challenges to 1B1.10. [00:18:35] Speaker 03: I don't read them that broadly. [00:18:37] Speaker 03: They go through a lot more detailed analysis and I think it's because they don't just look at the number and say, well, this was only an opportunity for leniency, closed case. [00:18:47] Speaker 03: They actually go through looking at the frame of reference at the time of the offense and looking at how the laws changed and asking whether there's been some opportunity that's been taken away. [00:18:59] Speaker 01: Well, yes, of course, what the courts have done, my reading of all those courts, is they look at what the law was at the time of the offense. [00:19:11] Speaker 01: And they all say at the time of the offense, 1B1.10, although it had a broader class of defendants to whom it was applicable, didn't include Amendment 782. [00:19:21] Speaker 01: That's the law in effect at the time of the offense. [00:19:24] Speaker 01: At the time of the sentence modification, [00:19:27] Speaker 01: that category has been narrowed, 782 applies, but it just limited leniency. [00:19:35] Speaker 01: Again, we have to remember that the only thing that could happen in a sentence modification is, at best, a reduction of sentence. [00:19:43] Speaker 01: At worst, no change, no increase. [00:19:45] Speaker 01: And the ex post facto clause simply applies when there's some, as I said, at least a sufficient basis for increasing the punishment. [00:19:55] Speaker 01: Nothing that happened in the court in 2016 was a sufficient risk of increasing Mr. Alvarez's sentence. [00:20:04] Speaker 01: He just didn't get the leniency that he would have liked. [00:20:08] Speaker 03: The other courts of appeals have taken a range of different approaches in terms of reasoning to the, as you note, is there one or more of those that you particularly would urge us to be guided by? [00:20:19] Speaker 01: I think the Seventh Circuit's approach in digs is a very straightforward, logical approach. [00:20:24] Speaker 01: The only court that I see as taking a somewhat different approach for arriving at the same result is the Second Circuit, which applies this one book rule and looks at [00:20:36] Speaker 01: by applying the guidelines in effect at the time of the offense or at the time of sentencing and the guidelines in effect at the time of the sentence modification and to determine whether there was a sentence increase. [00:20:49] Speaker 01: And again, in Ramirez, which applied to these very amendments, the court said there was no ex post facto because that defendant's sentence also had not been increased. [00:20:58] Speaker 03: And have we not also applied the one book rule? [00:21:01] Speaker 01: Excuse me? [00:21:01] Speaker 03: Have we not also applied the one book? [00:21:03] Speaker 01: And that works also. [00:21:05] Speaker 01: It leads to the same result. [00:21:07] Speaker 01: It's just a slightly different way of getting there. [00:21:13] Speaker 01: There are no other questions. [00:21:14] Speaker 01: We'll rest on our brief. [00:21:15] Speaker 01: Thank you. [00:21:15] Speaker 01: Thank you. [00:21:19] Speaker 02: Why don't you take a minute? [00:21:23] Speaker 04: Your Honor, the only thing I would argue is that if Congress, for example, today passed a statute that said we're going to reduce the cocaine penalty across the board, but anyone who got a departure [00:21:43] Speaker 04: in 2006 will not get the benefit of the reduction of the new statute that applies to every defendant and we're going to make it retroactive to every defendant except those who got a departure in 2006, which is essentially what this policy statement, what this guideline retroactive amendment is. [00:22:03] Speaker 04: I think that [00:22:04] Speaker 04: statute would violate the ex post facto clause to those defendants because it made things more onerous at a time, more onerous based on something that happened, something that happened after he was sentenced and without any [00:22:25] Speaker 04: noticed that he would be treated differently than all other defendants. [00:22:30] Speaker 04: This guideline amendment was a general application amendment to all drug defendants, but now it changed. [00:22:36] Speaker 04: That's the only thing I would argue that if this had been done by Congress, the ex post facto clause would apply and the court would strike it down. [00:22:45] Speaker 04: And the one book rule, again, it's the commission deciding what the ex post facto clause means for practical reasons and the commission does not get to decide how the constitution is to be interpreted. [00:22:55] Speaker 02: Ms. [00:22:57] Speaker 02: Hurley, as you were appointed by the court to represent your client, we thank you for your assistance.