[00:00:05] Speaker 09:
United States of America versus Dwayne Brown, also known as Goon Appellant, Ms.

[00:00:10] Speaker 09:
Davis for Appellant, Boston, Ms.

[00:00:12] Speaker 09:
Pembroke for Appellant, Brown, Ms.

[00:00:15] Speaker 09:
Katay for Appellant, Adona, Mr. Zucker for Appellant, Matthews, and Mr. Ewing for the government.

[00:00:22] Speaker 09:
Ms.

[00:00:22] Speaker 09:
Davis.

[00:00:23] Speaker 10:
Good morning.

[00:00:23] Speaker 10:
May I please the court?

[00:00:25] Speaker 10:
We raise a single issue on appeal, and that is whether there is sufficient evidence to convict Mr. Boston on the single count of possession with intent to distribute PCP.

[00:00:35] Speaker 10:
The judge, as I'm sure the court is aware, granted NJOAs on the conspiracy count and the possession of body armor count.

[00:00:42] Speaker 10:
The jury convicted him on the single count possession with intent to distribute and acquitted him on all the other firearm violations.

[00:00:51] Speaker 10:
Our main argument is that near presence or proximity to the drugs is insufficient to convict Mr. Boston.

[00:01:00] Speaker 10:
The government cited five reasons to demonstrate what they believe is more than near proximity.

[00:01:06] Speaker 10:
One is that Mr. Boston was not just a casual visitor.

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Second, that he was engaged in PCP distribution.

[00:01:15] Speaker 10:
Third, that there was a battering ram was used and when after the officers entered, there was a smell of PCP and the toilet was running.

[00:01:25] Speaker 10:
There was physical evidence recovered and the government names all the vials and the firearms and everything else that was found.

[00:01:32] Speaker 10:
There were guns found and there were photos on Mr. Boston's phone and finally there was a fingerprint on an empty bottle that did at one point contain PCP.

[00:01:48] Speaker 10:
In regard to the first argument, we submit that

[00:01:52] Speaker 10:
Even though Mr. Boston was not a casual visitor, that does not weigh in the government's favor because a number of other people were coming to that apartment and they were storing their drugs there.

[00:02:04] Speaker 10:
So just because Mr. Boston may have stayed there at times, that is not

[00:02:09] Speaker 10:
sufficient to hold him accountable for the drugs that were there.

[00:02:14] Speaker 10:
Secondly, although Mr. Boston was involved in PCP distribution, the testimony was that he distributed outside the apartment, not inside it.

[00:02:25] Speaker 10:
And also, according to this circuit case in Dorman, doing drug business is not sufficient to hold a person accountable for drugs that are found within a premise.

[00:02:37] Speaker 10:
In regard to the smell of the PCP, there's no evidence at trial how long smell of PCP lingers.

[00:02:44] Speaker 10:
But I think it's fair knowledge that the smell of PCP lasts for a very long time.

[00:02:50] Speaker 10:
Furthermore, there's no evidence that no one else was in the apartment prior to the police entering, because again, they did use a battering ram to enter.

[00:02:57] Speaker 10:
And so there was no evidence that someone else was, that there was no one else in there that may have left before the police entered the apartment.

[00:03:07] Speaker 10:
I think the important point here is that everything that was found as regard to evidence, none of it was in plain view.

[00:03:15] Speaker 10:
All of it was hidden.

[00:03:16] Speaker 10:
Some was found in a closet.

[00:03:18] Speaker 10:
Some was found in a trash can.

[00:03:21] Speaker 10:
There was nothing out there in order for

[00:03:26] Speaker 10:
for the jury to infer that Mr. Boston had to have known that these drugs were there.

[00:03:33] Speaker 10:
And finally, regarding the, as far as the guns go, again, the jury acquitted Mr. Boston of all the gun counts.

[00:03:40] Speaker 10:
And finally, the fingerprints, that's the hardest one to get around.

[00:03:45] Speaker 10:
But again, there's no evidence when the fingerprint was placed there.

[00:03:49] Speaker 10:
And I think the Lucas decision rejected

[00:03:52] Speaker 10:
the argument that fingerprints alone constitute constructive possession of the PCP.

[00:04:02] Speaker 08:
Can I ask you, for PCP, is there a certain amount that's considered, if it's found to be a certain amount, that's recognized to be a distribution level amount, or below a certain amount is generally assumed to be a personal use amount?

[00:04:19] Speaker 10:
I don't know the answer to that question.

[00:04:21] Speaker 10:
I'm guessing that I think the vials that were found were I believe half ounce vials.

[00:04:27] Speaker 08:
I thought it was a one ounce vial.

[00:04:28] Speaker 08:
One ounce.

[00:04:29] Speaker 10:
That was clearly considered distribution.

[00:04:32] Speaker 08:
There's no dispute that one ounce vial is a distribution amount vial.

[00:04:36] Speaker 08:
Excuse me?

[00:04:37] Speaker 08:
There's no dispute that that one ounce vial is a distribution amount vial.

[00:04:41] Speaker 08:
We don't.

[00:04:42] Speaker 10:
I think what the evidence was that they

[00:04:45] Speaker 10:
They were dipping cigarettes or something into the – into PCP vials and selling those.

[00:04:50] Speaker 10:
I don't think they were selling the vials directly.

[00:04:52] Speaker 06:
Okay.

[00:04:56] Speaker 06:
Questions?

[00:04:56] Speaker 10:
Any other questions?

[00:04:57] Speaker 10:
Okay.

[00:04:57] Speaker 10:
Thank you.

[00:05:03] Speaker 06:
Ms.

[00:05:03] Speaker 06:
Pembroke, as I understand the arrangement, we're going to hear from each of the defense counsel first and then consolidated response from the government.

[00:05:13] Speaker 07:
Good morning, Your Honors.

[00:05:14] Speaker 07:
I'm Christine Pembroke.

[00:05:16] Speaker 07:
I represent Appellant Brown.

[00:05:18] Speaker 07:
In this matter, we have raised a challenge to the three jury instructions for the offenses upon which Appellant was convicted, namely armed burglary with respect to Clifton's apartment, possession with the intent to distribute PCP, and unlawful possession of a firearm with a prior offense.

[00:05:35] Speaker 07:
The government maintains that those challenges are subject to plain error of view, and I would like to begin by focusing on the harm of the error.

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Harm exists where there is a reasonable possibility that the outcome would have been different but for the instructional error.

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And that happens where the government's evidence is not overwhelming.

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The harm in this case can be best put into perspective by appreciating the logical implications of the facts and the jury's decisions in this case.

[00:06:00] Speaker 07:
Notably, although Clifton testified that Mr. Brown, while showing Clifton that he was carrying a gun, forced him to have a key made to his apartment,

[00:06:08] Speaker 07:
and that Mr. Brown and Mr. Matthews used Clifton's apartment against Clifton's will to distribute PCP, there was evidence that Clifton was living beyond his means and was providing drugs to others.

[00:06:21] Speaker 07:
The jury, signaling that they discredited Clifton, acquitted Mr. Brown on the four counts related to Mr. Brown supposedly forcing Clifton to provide him with a key to the apartment.

[00:06:32] Speaker 07:
And they acquitted Mr. Brown of conspiring with Mr. Matthews to distribute the PCP in Clifton's apartment.

[00:06:38] Speaker 07:
In addition, the jury was unable to reach a verdict on the charge of carrying a firearm during a drug trafficking offense.

[00:06:46] Speaker 07:
Obviously, the government's evidence in this case was not overwhelming.

[00:06:51] Speaker 07:
All of this suggests that one or more jurors believe that the drugs and guns found in Clifton's apartment were Clifton's.

[00:06:57] Speaker 07:
That likely jury review renders the harm in informing the jury of Mr. Brown's prior conviction for unlawful possession of a firearm significant.

[00:07:06] Speaker 07:
Just as the D.C.

[00:07:07] Speaker 07:
Court of Appeals found in Edie,

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The disclosure satisfies the prejudice showing of the plain error review because it strains the understanding of human nature to believe that the jury would have been able to assess appellant's defense objectively after being told of the prior commitment.

[00:07:25] Speaker 06:
Is that, you think the question is plain error or waiver with respect to the, to this issue?

[00:07:29] Speaker 07:
Our response on the waiver issue is that because the trial judge was made aware on a number of occasions of the issue,

[00:07:39] Speaker 07:
and ruled on the issue, the issue is preserved.

[00:07:44] Speaker 06:
Well, the defendant knowingly waived whatever right he had by absolutely insisting that the stipulation be read.

[00:07:55] Speaker 06:
We have cases that stand for the proposition

[00:08:00] Speaker 06:
defense sets up the issue, puts the issue – you know, insists on the issue, et cetera, that that's waiver.

[00:08:07] Speaker 06:
Why isn't this a waiver?

[00:08:09] Speaker 06:
It seems extremely – the defense said if you don't do it, we're going to do it.

[00:08:17] Speaker 06:
So it doesn't really seem like it's a plain error question.

[00:08:22] Speaker 06:
It seems like it's a waiver question.

[00:08:27] Speaker 07:
Well, I would have to argue that if the judge is made aware of a situation that is highly prejudicial to the defendant, he has an obligation to address that situation and not just agree to what defense counsel is doing to the detriment of his client.

[00:08:43] Speaker 06:
Well, have you claimed that the defense counsel was ineffective?

[00:08:47] Speaker 06:
Have you made an ineffective assistance claim?

[00:08:49] Speaker 07:
I haven't made a claim at this point, Your Honor.

[00:08:52] Speaker 06:
Well, then, maybe there's a strategy here that all the rest of us are not able to figure out, but nonetheless, there's a strategy in what the defense attorney was doing.

[00:09:02] Speaker 06:
Maybe he thought the evidence was going to come out anyway and he was going to take this thing out of it.

[00:09:07] Speaker 06:
That would be a voluntary waiver.

[00:09:12] Speaker 07:
Well, at the end of the trial, the evidence hadn't come out anyway when the instruction was being discussed.

[00:09:19] Speaker 07:
So I don't know what his strategy would have been at that point.

[00:09:25] Speaker 06:
I don't know either.

[00:09:27] Speaker 06:
So maybe I'm surprised that they're not being an ineffective assistance claim, which normally there would be at this point, if he thought it was ineffective.

[00:09:39] Speaker 07:
I mean, that is always something we could pursue.

[00:09:42] Speaker 06:
I'm not suggesting that you raise one.

[00:09:45] Speaker 06:
That's not what I mean by that.

[00:09:46] Speaker 06:
But I mean, in the absence of one, it's hard for us to decide that this isn't just a voluntary waiver.

[00:09:55] Speaker 06:
Go ahead.

[00:09:55] Speaker 06:
I don't mean to use up all your time.

[00:10:00] Speaker 07:
Likewise, the conclusion that one or more jurors believe that the drugs in Clifton's apartment were Clifton's supports the likely juror finding that Mr. Brown was not possessing with the intent to distribute the PCP in Clifton's apartment.

[00:10:13] Speaker 07:
And the further conclusion that such juror convicted Mr. Brown of PWID based on some other quantity and another incident of alleged PCP distribution.

[00:10:24] Speaker 07:
This underscores that the lack of unanimity instruction on the PWID count was indeed prejudicial.

[00:10:30] Speaker 07:
Finally, the failure to instruct the jury properly on the burglary count was prejudicial because that failure presents the risk that a jury convicted Mr. Brown of burglary based on a literal language of the instruction and that the jury need only find Mr. Brown entered the apartment with the intent to store any weapons, including a legal one.

[00:10:50] Speaker 04:
Well, it also said narcotics.

[00:10:51] Speaker 07:
Yes, he had to find both.

[00:10:55] Speaker 04:
And wouldn't that be understood to be illegal narcotics?

[00:10:59] Speaker 07:
Well, not necessarily.

[00:11:00] Speaker 07:
I mean, there are a host of things that would have to be proven to have been illegal possession that would support a crime and his intent to commit a crime when he entered.

[00:11:12] Speaker 07:
The jury wasn't instructed that it had to be a controlled substance.

[00:11:15] Speaker 07:
The jury wasn't instructed about the quantity that had to be possessed in order to prove

[00:11:20] Speaker 07:
that he intended to commit the crime of possession of an illegal substance.

[00:11:25] Speaker 04:
What should the instruction have said in your view, that instruction?

[00:11:28] Speaker 07:
In my view, the instruction should have gone through all of the elements of illegal possession and of illegal weapons possession and charged the jury with finding all of those elements as a predicate to proving he had the wrongful intent when he entered the apartment.

[00:11:48] Speaker 07:
And the judge didn't do that here.

[00:11:49] Speaker 04:
Number two, at the time of the entry, the defendant intended to use Mr. Clifton's apartment as a place to possess and store narcotics and weapons.

[00:11:57] Speaker 07:
Narcotics are not necessarily illegal.

[00:12:01] Speaker 04:
That was my point.

[00:12:02] Speaker 04:
Do you think in the context here it would be, I understand your literal point, but be understood?

[00:12:08] Speaker 07:
Well, it certainly wasn't what was required in the jury instructions, but the further fact that the amount that had to be possessed wasn't discussed either, I think goes to the fact that that instruction was inadequate.

[00:12:22] Speaker 06:
What amount do you think had to be?

[00:12:24] Speaker 07:
It has to be measurable or detectable.

[00:12:27] Speaker 06:
Nobody asked for that kind of instruction, did they?

[00:12:29] Speaker 07:
That's correct.

[00:12:30] Speaker 06:
The statute says you have to intend to commit any criminal offense, right?

[00:12:36] Speaker 07:
Yes, but the case law says you have to specify which offense you're intending to commit.

[00:12:42] Speaker 06:
Well, the judge did instruct that he had to intend to commit a crime.

[00:12:48] Speaker 07:
Right, but you have to specify which crime.

[00:12:50] Speaker 06:
And they specify narcotics and weapons, so even if you're right that sometimes narcotics and weapons aren't a crime, in this case the judge instructed that it had to be a crime, right?

[00:13:01] Speaker 07:
Right, but he didn't give the jury all the elements of those crimes that they had to agree on unanimously.

[00:13:09] Speaker 08:
Have you seen other cases where that's how these types of robberies were instructed, where they actually then went through every element of the crime they're in?

[00:13:16] Speaker 07:
I don't know offhand if there are any cases in which the courts actually discuss.

[00:13:21] Speaker 08:
I was just going to ask, have you seen model jury instructions that do it that way?

[00:13:29] Speaker 07:
I don't know that the model jury instructions go into that aspect of it.

[00:13:34] Speaker 07:
It's the case law that says you have to establish that there was a crime that the defendant was intending to commit.

[00:13:44] Speaker 07:
Anything else?

[00:13:58] Speaker 02:
Good morning.

[00:13:58] Speaker 02:
May it please the court?

[00:13:59] Speaker 02:
I'm Barbara Kite and I represent Ira Adona.

[00:14:03] Speaker 02:
Our issue is one of sentencing.

[00:14:06] Speaker 02:
Mr. Adona pleaded guilty to one count of conspiracy and per the plea agreement, he also pleaded guilty to a superior court offense in the superior court.

[00:14:16] Speaker 02:
Our issue is whether

[00:14:18] Speaker 02:
The sentence as imposed counted twice the conduct that was addressed in the Superior Court, both by a sentencing enhancement in the District Court and then by the sentence in the Superior Court, which were imposed consecutively.

[00:14:36] Speaker 02:
We object to the sentence for, among other reasons, because the court actually had given its commitment that it would not impose the sentences consecutively and would not punish the defendant twice for the same conduct.

[00:14:49] Speaker 08:
Where's that commitment?

[00:14:50] Speaker 02:
There actually is both in the plea hearing, but more specifically in a status hearing that was held before the district court on July 28, 2015.

[00:15:02] Speaker 02:
There was an extensive discussion.

[00:15:05] Speaker 08:
Do you have a JA site for the committee?

[00:15:06] Speaker 08:
Because I saw the district court committing a lot of times to impose consecutive sentences.

[00:15:12] Speaker 02:
Do I have the site to where he commits not to do it?

[00:15:15] Speaker 02:
There are several, actually.

[00:15:16] Speaker 02:
But most specifically, in the July 28 hearing at page 41, at the conclusion of the entire argument, the court says, I'll go with it.

[00:15:29] Speaker 02:
Don't worry.

[00:15:31] Speaker 02:
And the defense counsel says,

[00:15:36] Speaker 02:
Thank you.

[00:15:37] Speaker 02:
So we're going to be a 27 for Mr. Adona.

[00:15:40] Speaker 02:
I think it's category three, which is, I think, 87 to 104.

[00:15:44] Speaker 02:
And the court repeats.

[00:15:46] Speaker 02:
I'm sorry, 87 to 108.

[00:15:48] Speaker 02:
And the court repeats 87 to 108.

[00:15:52] Speaker 02:
But in addition to that, and I have actually put some of the citations in my opening brief where he says, you have my commitment on that.

[00:16:01] Speaker 02:
Hang on.

[00:16:19] Speaker 02:
I'm sorry.

[00:16:21] Speaker 02:
I did quote them in my opening brief.

[00:16:30] Speaker 02:
Perhaps as I rise again for a rebuttal argument, as I sit through the government's argument, I'll give you several.

[00:16:35] Speaker 02:
Actually, there are several citations to where the court said, in fact, then goes into a bit of a monologue where he explains that

[00:16:46] Speaker 02:
he should not even tempt an appeal on this issue by sentencing consecutively and he sort of derisively says because some appellate guru will come forward who's not as reasonable as trial counsel and will come forward and say it was an error when trial counsel was being reasonable and this appellate guru, which I assure you I'm not, but this appellate guru would come forward at a later time

[00:17:10] Speaker 02:
And the court asked it in open court, why wouldn't it be more reasonable for me to avoid this issue entirely by sentencing this concurrently and not consecutively?

[00:17:22] Speaker 02:
The discussion was had at great length.

[00:17:24] Speaker 02:
And then there's this extraordinary moment in the sentencing transcript right at the beginning where the court seems to forget that it had made all of those commitments and says, no, trial counsel would not be so unreasonable as to request such a thing.

[00:17:39] Speaker 02:
And it's an extraordinary moment because I think even the government is surprised because the court had made that very commitment.

[00:17:47] Speaker 02:
And indeed, trial counsel was not even asking that the sentence in the district court completely subsume the conduct because it had been counted as a sentencing enhancement.

[00:18:02] Speaker 02:
It was merely asking that it run concurrent that period of time which the sentencing

[00:18:07] Speaker 02:
enhancement had imposed to the sentence that the Superior Court had imposed.

[00:18:13] Speaker 06:
You're talking about JA 481, or whatever the thing is called, it's at 481.

[00:18:19] Speaker 02:
The commitment, you have my commitment on that?

[00:18:22] Speaker 06:
Yes.

[00:18:24] Speaker 06:
But I didn't understand you to be making an argument that there was

[00:18:29] Speaker 06:
Assume for the moment that you're correct, that's what the commitment was at that point, that the judge couldn't change his mind at the time of the sentencing.

[00:18:36] Speaker 06:
I didn't notice that that was your argument.

[00:18:38] Speaker 06:
Is that your argument that the judge misled the defense and were therefore unprepared for sentencing or something like that?

[00:18:46] Speaker 02:
No.

[00:18:47] Speaker 02:
I think it's part of the argument because, and I actually found the case that the government submitted on Sunday quite interesting, the Rouse case.

[00:18:55] Speaker 02:
I say because I am prepared.

[00:18:58] Speaker 02:
actually here to climb the hill that says this issue is not waived.

[00:19:03] Speaker 02:
And it's not waived because, as Rouse said, that a sentence is reasonable if it is imposed under fair procedures.

[00:19:18] Speaker 02:
And I will be arguing here that it's not a fair procedure.

[00:19:22] Speaker 02:
for the court to make certain commitments that it would not double count conduct that he was sending the defendant across the street to plead to in Superior Court knowing that this plea agreement talked about a sentencing range.

[00:19:37] Speaker 02:
The defendant understood that to be a number and then the court does a workaround of that number to give it a much greater number.

[00:19:46] Speaker 04:
I'm sorry, the appeal waiver says

[00:19:49] Speaker 04:
You may appeal if the sentence exceeds the guidelines range determined by the court.

[00:19:58] Speaker 04:
The guidelines range determined by the court had an upper bound of 108 months.

[00:20:04] Speaker 04:
So it did not exceed the guideline range determined by the court.

[00:20:08] Speaker 02:
I would argue that to look simply at the plea agreement here for the commitment and the waiver is unfair because there is a significantly muddy record here that followed, both at the plea agreement and at the status hearing where this issue was discussed at length.

[00:20:25] Speaker 02:
And I think that the record

[00:20:28] Speaker 02:
significantly muddies the waiver with respect to his plea agreement.

[00:20:33] Speaker 02:
Also at the plea, he was assured at the very start that his plea would be reasonable, which of course it must be because that's our law, and the sentence would have no fairness or integrity if it were not reasonable.

[00:20:47] Speaker 02:
What's reasonable here given the entire record and every promise this judge made,

[00:20:52] Speaker 02:
was that he would not be punished twice for the same conduct and when they kept repeating 108 108 the defendant understood that his range was 108 not 108 with a workaround that would give him double time for conduct that he went and was sentenced for across the street and then was re-sentenced for here because it was counted in his guideline range.

[00:21:14] Speaker 02:
I would remind the court too that it was not part of the charged crime that he pled guilty to

[00:21:19] Speaker 02:
It can't be a coincidence that he pled guilty to a crime that was committed on April 30th, and the conspiracy he pled guilty to here commenced the very day after.

[00:21:29] Speaker 02:
They're two separate crimes.

[00:21:31] Speaker 08:
That sounds like an argument against the enhancement, which you, counsel, clearly did not make or has not been made on an appeal and agreed to in the plea agreement.

[00:21:42] Speaker 02:
Well, because he had these commitments that one way or another it would be addressed and it wouldn't be sentenced twice.

[00:21:48] Speaker 02:
I noticed the government in its brief even backs out that time and recalculates it without the enhancement, and even there the defendant is given a sentence of three months less, which

[00:22:00] Speaker 02:
if no more, he would certainly accept.

[00:22:03] Speaker 02:
But because he was assured, counsel was assured, that the court understood, and the court said, I will give it consideration, not I will consider it.

[00:22:12] Speaker 02:
There's a difference between saying I'll consider it, I'll think about it, and I will give it consideration, which means I will take that time and consider that it has been accounted for.

[00:22:23] Speaker 02:
when you come back to me with the sentence that's been imposed in the Superior Court, that means that he will not be sentenced twice.

[00:22:31] Speaker 02:
So I think counsel was led to believe he didn't have to make that argument because it was understood that one way or another he would only be sentenced once for that conduct, not twice.

[00:22:45] Speaker 02:
And I think I have spoken over my time.

[00:22:46] Speaker 02:
So I will look for some of those other references too if I may rise with them in rebuttal.

[00:23:03] Speaker 05:
I'll be addressing two sentencing issues on behalf of Appellant Matthews.

[00:23:09] Speaker 05:
The first issue was whether it was error to enhance the offense level based on a prior conviction.

[00:23:15] Speaker 05:
And of course, the requirement is that it be a crime of violence.

[00:23:19] Speaker 05:
The underlying conviction or the prior conviction in that case was an attempted assault with a dangerous weapon.

[00:23:24] Speaker 05:
The second issue is, was it plain error for the courts to sentence above the guidelines?

[00:23:28] Speaker 05:
when the factors the court addressed as its reasons were essentially issues considered by the guidelines and the courts made no particularized findings either orally or more significantly written findings to state its reasons for the departure.

[00:23:45] Speaker 05:
The first issue was reviewed de novo and the issue was whether or not it's a prior crime of violence.

[00:23:52] Speaker 05:
The court did not say under, did not specify whether it was going under the

[00:23:59] Speaker 05:
First section of the statute, which talks about the elements or the categorical, or the second, which is the enumerated.

[00:24:06] Speaker 06:
Why is it de novo?

[00:24:07] Speaker 06:
Why isn't it plein air?

[00:24:08] Speaker 06:
Why is it de novo?

[00:24:10] Speaker 05:
Because questions of this type are de novo.

[00:24:12] Speaker 06:
It's a legal question.

[00:24:14] Speaker 06:
Was there an objection?

[00:24:15] Speaker 05:
There was.

[00:24:15] Speaker 05:
There was an objection.

[00:24:16] Speaker 05:
Oh, yes.

[00:24:16] Speaker 05:
There clearly was an objection.

[00:24:18] Speaker 05:
That's a good question in the sense because I think we have to look at the way this case proceeded in sentencing.

[00:24:25] Speaker 05:
The pre-sentence report originally came out and said the defendant's a base offense level 14, but may change if this DC case is a crime of violence.

[00:24:35] Speaker 05:
In response to that, the prosecution provided

[00:24:39] Speaker 05:
Frankly, what I think shouldn't have been provided, they provided the facts of the case of Sima Leah Gerstein, which established that there was a gun discharge and then showed up at sentencing and said, of course it's a crime of violence because there was a gun discharged and went over the circumstances of how that gun was discharged.

[00:24:56] Speaker 05:
But what we know is under an element approach or a categorical approach, the court is not to consider the underlying facts of the case.

[00:25:04] Speaker 05:
The court is to consider the elements of the offense at issue.

[00:25:08] Speaker 05:
Once the pre-sentence report writer changed, I can't remember if it was a man or woman, his or her version, and said it's a crime of violence based on those facts, the court had some questions.

[00:25:17] Speaker 05:
The prosecutor made those same arguments at sentencing that it was clearly a crime of violence because a gun was discharged.

[00:25:23] Speaker 05:
And the court adopted those findings.

[00:25:26] Speaker 05:
Over the defense objection that you have to use a categorical approach, you had to consider the elements.

[00:25:31] Speaker 05:
And significantly here,

[00:25:33] Speaker 05:
I would suggest ADW, assault with a dangerous weapon in D.C., is not necessarily a crime of violence because there's alternative matters in which it could be committed, but more significantly and more egregiously in this case is that this was not even an assault with a dangerous weapon, this was an attempt, element of force or violence required on an attempt for a dangerous weapon.

[00:25:55] Speaker 04:
And for that reason... Doesn't the guideline application notes say that attempts still qualify?

[00:26:01] Speaker 05:
I think there's some confusion about that because those, I believe, are attempts under the federal statute.

[00:26:07] Speaker 05:
And the federal statute is different than the D.C.

[00:26:10] Speaker 05:
attempts statute.

[00:26:11] Speaker 05:
But more significantly, I don't think

[00:26:14] Speaker 05:
that alleviates the need to examine the statute or the crime at issue.

[00:26:19] Speaker 05:
And here, I don't think there's any argument, and only the government makes an argument even, that you can commit an attempted ADW without using force or violence.

[00:26:29] Speaker 05:
And it's really a legal question.

[00:26:30] Speaker 05:
We don't look at the underlying facts of the case.

[00:26:33] Speaker 05:
And I would be the first to concede, if we were art to look at the underlying facts of the case or the proffer and credit that proffer, there was arguably a crime of violence if one was discharged.

[00:26:42] Speaker 05:
Though even there, it went forward

[00:26:44] Speaker 05:
attempt to frighten the intended victim was nowhere in the zone of danger and couldn't have been hit.

[00:26:55] Speaker 05:
So it was clearly proceeded as an intent to frighten, but more significantly to have an attempt

[00:27:01] Speaker 05:
You need only the intent to commit the crime, and some act reasonably calculated to bring it forward.

[00:27:07] Speaker 05:
You certainly don't need force.

[00:27:08] Speaker 05:
You certainly don't need violence.

[00:27:10] Speaker 08:
And for that reason... Because the attempt here is not just to commit assault, it's to commit assault with a deadly weapon.

[00:27:17] Speaker 08:
So to distinguish between attempted simple assault and attempted assault with a deadly weapon, what role does

[00:27:27] Speaker 08:
To establish that type of attempt, what do you have to show about the presence or involvement of a deadly weapon?

[00:27:34] Speaker 08:
Because the elements don't quite capture that.

[00:27:35] Speaker 08:
But it's got to be a simple assault attempt, right?

[00:27:38] Speaker 05:
I'm sorry?

[00:27:38] Speaker 08:
It's got to be different than a simple assault attempt.

[00:27:40] Speaker 08:
And so.

[00:27:41] Speaker 05:
No, it has to be an attempt.

[00:27:43] Speaker 05:
It has to be an assault in which there's a potential for a deadly force.

[00:27:47] Speaker 05:
But it does not need to be a dangerous weapon in the sense of it has to be a gun or a knife.

[00:27:53] Speaker 05:
In DC, assault with a dangerous weapon could be anything.

[00:27:55] Speaker 05:
It could be a bottle of brick.

[00:27:56] Speaker 05:
I've seen ADW shot for it.

[00:27:58] Speaker 08:
What at the attempt stage?

[00:28:00] Speaker 08:
How is that?

[00:28:01] Speaker 08:
I'm just trying to get my head around.

[00:28:03] Speaker 08:
If you just sort of look at the list of elements, I don't know how you would distinguish a simple assault attempt from an assault with a deadly weapon attempt, and so I'm trying to figure out.

[00:28:14] Speaker 08:
how that weapon factors in and whether that makes this type of attempt different than a simple assault attempt for purposes of crime or violence.

[00:28:21] Speaker 05:
As a legal matter, because an ADW and DC could be committed with any object, any object that could inflict an injury, including, you know, that picture, I would say that distinguishes it.

[00:28:34] Speaker 08:
But more significantly, is... Well, do you have to show... What I'm asking you, do you have to show that a picture was...

[00:28:41] Speaker 05:
Right, and you don't have to show, for an attempt, you don't have to show that there was any force or violence used.

[00:28:47] Speaker 05:
And that's really the distinguishing part.

[00:28:48] Speaker 08:
Do you have to show the presence of a deadly weapon?

[00:28:51] Speaker 05:
No, I wouldn't think so, no.

[00:28:53] Speaker 05:
It says intent along with any act reasonably calculated to further the, I'm trying to find the exact language for it, intent.

[00:29:08] Speaker 05:
The critical point, and I can't find the exact language, I know it's in the brief of what an attempt is.

[00:29:15] Speaker 08:
Reasonably adapted to accomplishing the crime.

[00:29:17] Speaker 08:
Right.

[00:29:17] Speaker 08:
But if the crime involves, has to involve a weapon, does the weapon have to be?

[00:29:21] Speaker 05:
I would think not.

[00:29:22] Speaker 05:
I don't think it has to specifically be a weapon.

[00:29:24] Speaker 05:
But more significantly, it doesn't have to have any element of force or violence.

[00:29:28] Speaker 05:
If I intend to commit an assault and move towards the location where I anticipate the victim is, that's enough for attempt.

[00:29:36] Speaker 05:
All right.

[00:29:37] Speaker 05:
There is no force involved.

[00:29:38] Speaker 05:
There's no violence involved.

[00:29:39] Speaker 05:
The victim was never a danger.

[00:29:41] Speaker 05:
But that's enough for an attempt.

[00:29:42] Speaker 06:
How does that fit within the guideline commentaries that crime or violence includes the offense of attempting to commit such offense?

[00:29:52] Speaker 06:
So if you have the offense,

[00:29:54] Speaker 06:
if we assume for the moment that the completed offense is a crime of violence, all you have to do is attempt to commit it.

[00:30:00] Speaker 06:
We don't have to further define anything about attempt.

[00:30:04] Speaker 06:
The guideline already defines it for us.

[00:30:05] Speaker 05:
I think there's a two-fold problem with that.

[00:30:08] Speaker 05:
The first is that ADW in D.C.

[00:30:11] Speaker 05:
can occur without any violence, threats, or force.

[00:30:14] Speaker 06:
That's a different question.

[00:30:15] Speaker 06:
That's not about what an attempt is.

[00:30:18] Speaker 06:
But to be decided categorically, if we decide that ADW

[00:30:22] Speaker 06:
is a crime of violence, then the guideline suggests an attempt at ADW is a crime.

[00:30:31] Speaker 06:
It doesn't suggest, it says that an attempt at ADW is also a crime of violence.

[00:30:35] Speaker 05:
I would say you have to look at the D.C.

[00:30:37] Speaker 05:
Attempts Statute.

[00:30:38] Speaker 06:
I know you would say that, but the question is where do you get that out of the guideline?

[00:30:42] Speaker 05:
Because you have to look at what the violation is.

[00:30:46] Speaker 05:
And the violation here does not include any

[00:30:51] Speaker 06:
That only gets you – Does that include any violence or – Then you have to succeed on the principal offense claim.

[00:30:59] Speaker 06:
I don't see how you succeed by attacking the attempt part of it, given the language of the conference.

[00:31:04] Speaker 05:
Well, I think it could be either, in all candor.

[00:31:05] Speaker 05:
I think because ADW can occur without force or violence,

[00:31:10] Speaker 05:
And trial courts in this building have ruled that ADW does not necessarily apply in the ACCA context as a crime of violence.

[00:31:19] Speaker 06:
But trial courts in the building are precedent and we have our own precedent.

[00:31:23] Speaker 05:
Understood.

[00:31:23] Speaker 05:
And I don't think there is any precedent here that attempted ADW is a crime of violence or can be a crime of violence under the Attempt Statute and under the Attempted AD Statute as it exists in DC, which I think the confusion here is because

[00:31:39] Speaker 05:
The federal attempt statute is very different, and the federal attempt statute is analogous to conspiracy.

[00:31:44] Speaker 05:
It provides the same punishment for an attempt.

[00:31:47] Speaker 06:
The guideline recognizes that we're talking about state as well as federal crimes.

[00:31:52] Speaker 06:
Right, and I agree.

[00:31:54] Speaker 06:
So the guideline is not differentiating between

[00:31:56] Speaker 06:
federal crimes and state crimes?

[00:31:59] Speaker 05:
No, I agree, but you have to look at the state crime and in this instance when you examine the state crime of ADW and more specifically the state crime or the DC crime of attempted ADW, there is not an element of force in it and therefore it cannot be correctly categorized as a crime of violence.

[00:32:17] Speaker 04:
On the ADW, the government quotes the Spencer case.

[00:32:20] Speaker 04:
The Spencer case says that an element of the offense is the use of a dangerous weapon in committing the assault.

[00:32:26] Speaker 05:
Right.

[00:32:28] Speaker 05:
And it's interesting because there is no statute for AGW in D.C.

[00:32:31] Speaker 05:
and the Spencer case applies or creates the elements.

[00:32:35] Speaker 05:
The statute in D.C.

[00:32:37] Speaker 05:
is if there is an assault,

[00:32:39] Speaker 05:
and that assault includes use of a dangerous or deadly weapon, then it becomes a felony rather than a simple assault.

[00:32:47] Speaker 05:
And the Spencer decision does attempt to articulate elements that applies to that.

[00:32:53] Speaker 05:
But the last part is even under the Spencer analysis, it does not require force or violence, which is you can't enhance under the guideline absent

[00:33:07] Speaker 05:
force or violence being an element of the offense.

[00:33:11] Speaker 06:
But it requires the use of a dangerous weapon, right?

[00:33:15] Speaker 06:
That's what Spencer says.

[00:33:16] Speaker 06:
Spencer says ADW requires use of a dangerous weapon, right?

[00:33:20] Speaker 05:
Right, but I think dangerous weapon in the context of ADW is, what's the word I'm looking for, almost amorphous, because it can be anything.

[00:33:30] Speaker 06:
So in Redrick, we said with respect to the Maryland Court of Appeals,

[00:33:35] Speaker 06:
operating in just exactly the same way, analyzing the common law in Maryland, that the use of a deadly or dangerous weapon constitutes a crime of violence.

[00:33:44] Speaker 06:
How do you distinguish rhetoric?

[00:33:46] Speaker 05:
Because there was no use.

[00:33:47] Speaker 05:
You do not have to have use in the context of the weapons used.

[00:33:51] Speaker 05:
In rhetoric, you're right.

[00:33:53] Speaker 05:
You had to show that the weapon was used.

[00:33:55] Speaker 05:
And rhetoric references Parnell, which is the Massachusetts case.

[00:33:59] Speaker 06:
I don't understand how you're distinguishing

[00:34:02] Speaker 06:
this case from Redrick in light of what Spencer said.

[00:34:06] Speaker 05:
Because under the attempted ADW statute... Leave aside attempted.

[00:34:10] Speaker 05:
Okay.

[00:34:11] Speaker 05:
Even under the ADW, you do not have to have – in D.C., you do not have to have use of the weapon.

[00:34:17] Speaker 06:
So you just think that the Court of Appeals of the District of Columbia is wrong with respect to Spencer?

[00:34:22] Speaker 06:
Because they say – I think it's being pulled out of context there.

[00:34:25] Speaker 06:
Well, maybe, but it is the highest court of the District of Columbia.

[00:34:28] Speaker 05:
I'm not disputing that.

[00:34:29] Speaker 06:
And so we're – and just as in Redbrick, we read the highest court – in fact, the less than highest court in Maryland as being decisive.

[00:34:38] Speaker 06:
Why don't we have to read the highest court of D.C.

[00:34:42] Speaker 06:
as being decisive on this question?

[00:34:45] Speaker 05:
It's an interesting academic question, but I think we're still stuck with, and regardless of how it gets resolved, and I think ADW and D.C.

[00:34:51] Speaker 05:
does stand by it, does not require

[00:34:56] Speaker 05:
actual use of force, because it could be a threat, it could be reckless, it could be all sorts of other things.

[00:35:00] Speaker 05:
But more significantly, what pulls us out of there is that this was an attempt, and that the attempt statute clearly does not require any completed act of force or violence.

[00:35:09] Speaker 06:
Do you have an argument about adequate explanation of the above-guidelines sentence?

[00:35:17] Speaker 06:
I'm sorry, are you moving?

[00:35:18] Speaker 06:
Didn't you have another argument?

[00:35:19] Speaker 05:
Yes, yes.

[00:35:23] Speaker 05:
Thank you.

[00:35:25] Speaker 05:
Uh, that brings us to the plane error standard on, uh,

[00:35:34] Speaker 05:
It has to do with the departure or the sentencing above the guideline range here.

[00:35:40] Speaker 05:
And this case is controlled, I would suggest, by a key bay or a kig bay.

[00:35:44] Speaker 05:
It's virtually the exact same situation.

[00:35:46] Speaker 05:
In the kig bay, there was a doctor who engaged in some kind of health care fraud.

[00:35:53] Speaker 05:
The court opined how bad health care fraud was, and because of that, sentenced above the guidelines, but did not specifically state how

[00:36:03] Speaker 05:
And in this case, the same error occurred in the trial court when the trial court

[00:36:18] Speaker 05:
relied on essentially guideline factors to impose a sentence above the guidelines, when both the factors the court articulated were the basis for other enhancements.

[00:36:29] Speaker 05:
In particular, the court talked about the number of guns and the level of violence, but the court had already given an enhancement based on the number of guns.

[00:36:36] Speaker 04:
That sounds like the standard for a departure from the guidelines, not the standard for a variance under the advisory guidelines, as the Supreme Court has articulated.

[00:36:47] Speaker 04:
Well, you do not have to show what you just articulated, I don't believe, to show a variance.

[00:36:54] Speaker 04:
The whole point of the guidelines after Booker is they're advisory.

[00:36:57] Speaker 04:
Advisory means advisory.

[00:37:00] Speaker 04:
And some judges go low and some judges go high.

[00:37:05] Speaker 04:
And as long as they explain their reasons, our case law suggests that we're not supposed, and more importantly, the Supreme Court's

[00:37:12] Speaker 04:
All Rita Kimbrough case also just we're not supposed to second guess that as long as there's some explanation of what the judge is doing.

[00:37:20] Speaker 04:
And the judge here talks about a lot of different things, protect the community, deter others, children are involved, promote respect for the law.

[00:37:30] Speaker 05:
But aren't those all factors contained within the guidelines?

[00:37:33] Speaker 05:
And weren't those addressed by the guidelines?

[00:37:35] Speaker 04:
But that would mean in the variances, a judge who just thinks that the guidelines do not adequately punish certain kinds of crimes could never vary above the guidelines.

[00:37:46] Speaker 04:
And that is not the law as the Supreme Court.

[00:37:49] Speaker 04:
The whole point of Booker is that the guidelines are advisory.

[00:37:54] Speaker 04:
And some judges are going to say, I look at that advice, advisory,

[00:37:58] Speaker 04:
And I disagree with it.

[00:37:59] Speaker 04:
And I think a higher sentence is appropriate under these facts.

[00:38:02] Speaker 04:
And many judges, as you're well aware, will say, actually, I think a lower sentence is appropriate here.

[00:38:07] Speaker 04:
I mean, there are more downward variances than upward variances by a long shot.

[00:38:11] Speaker 04:
So I just don't know how we can second-guess it, as long as the judge goes through the facts of the case and gives the individualized consideration here.

[00:38:21] Speaker 05:
Respectfully, I think the answer to your question is contained within our feedback.

[00:38:24] Speaker 05:
It's a procedural error because the judge didn't do exactly what you described.

[00:38:27] Speaker 05:
The judge didn't preside, didn't present any reason to depart upwards why this defendant deserved an upward departure above.

[00:38:36] Speaker 04:
That's a variance.

[00:38:38] Speaker 04:
You mean variance.

[00:38:39] Speaker 04:
Could the judge have done it here?

[00:38:41] Speaker 04:
Could the judge have done it?

[00:38:42] Speaker 04:
In other words, is this really a substantive or procedural?

[00:38:45] Speaker 04:
So you're saying procedural is just failure to explain.

[00:38:48] Speaker 04:
So the judge could have done it.

[00:38:50] Speaker 05:
I think it would have to be remanded for the judge to do that, yes.

[00:38:53] Speaker 04:
And what could the judge have said?

[00:38:57] Speaker 05:
Well, if the judge has a basis to depart upwards that isn't considered by the guidelines, that isn't incorporated, then by all means, he has the discretion to do that.

[00:39:05] Speaker 05:
But to do that, under Akigbe, he needs to state with specificity, including in writing, why he's departing upwards.

[00:39:13] Speaker 05:
And that wasn't done in this case.

[00:39:15] Speaker 05:
There was a generic – it was exactly what was done in Iquique Bay.

[00:39:18] Speaker 05:
There was generic comments about guns, violence in the community, need to send a message – not need to send a message, need to deter, need to punish, all of which are standard, garden-variety issues and sentencing.

[00:39:30] Speaker 04:
What if the judge just disagrees with the guideline as being insufficiently severe?

[00:39:35] Speaker 06:
The Supreme Court's already decided that's okay, so this is a trick question for you.

[00:39:41] Speaker 06:
The answer is, if the judge says, I disagree with the guidelines because they're not severe enough or too severe, then the judge can vary.

[00:39:53] Speaker 06:
But the judge didn't say that in this case, did he?

[00:39:57] Speaker 05:
Judge seems to have departed upward and said the guidelines weren't sufficient given the conduct, and it seems to be within the context, seems to have mirrored the actions in the Archbishop Bay case which this court reversed, saying you have to state the reasons for the procedure.

[00:40:11] Speaker 05:
It's a procedural error not to state the reasons to depart upwards.

[00:40:15] Speaker 05:
I respectfully submit that's binding on this court as well.

[00:40:20] Speaker 05:
The same error complained of at Cake Bay is present in this case, and the same result should be that the case should be remanded for the judge to make specific findings.

[00:40:29] Speaker 05:
Now, does he have discretion to do that?

[00:40:30] Speaker 05:
Of course he does.

[00:40:31] Speaker 05:
Of course he does.

[00:40:32] Speaker 05:
Of course he does, okay.

[00:40:34] Speaker 04:
So, on the facts of this case, the judge can impose a higher-than-guidelines sentence.

[00:40:39] Speaker 04:
You agree?

[00:40:40] Speaker 05:
Absolutely.

[00:40:41] Speaker 05:
He just has to have state with specificity his reasons for doing so.

[00:40:45] Speaker 05:
And why, in particular, this defendant should be taken out of the guard line.

[00:40:50] Speaker 08:
So when you say judges have discretion to do that, are you talking generically, or are you saying your client deserved that higher sentence?

[00:40:57] Speaker 05:
Obviously I'm not saying my client deserved the higher sentence.

[00:40:59] Speaker 08:
Are you saying the facts of this record would support a higher sentence if the district court just said the right words, or are you saying?

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

[00:41:06] Speaker 05:
If the court had made

[00:41:08] Speaker 05:
the correct findings, then of course I'm down.

[00:41:10] Speaker 08:
Could a court make the correct findings on this record?

[00:41:13] Speaker 08:
That's what I'm asking you.

[00:41:14] Speaker 08:
Does this record support that higher sentence for your client?

[00:41:16] Speaker 05:
He would have to state a reason, but yes, assuming he has a legitimate reason to go above the guidelines, then of course.

[00:41:21] Speaker 08:
Do you think there are legitimate reasons?

[00:41:23] Speaker 08:
Does this record establish legitimate reasons?

[00:41:26] Speaker 08:
Is this just a process problem?

[00:41:28] Speaker 05:
It is a procedural problem.

[00:41:29] Speaker 08:
You don't think there's any substantive problem?

[00:41:31] Speaker 05:
I would have to say what the basis was and then I would be, you know, in a position to challenge it.

[00:41:37] Speaker 05:
But if he says, this is the reason why... You can't tell from looking at this record on your own right now whether your client... I mean, I'm not going to opine that my client is or did not have reasons to take him outside of the sentencing guidelines.

[00:41:48] Speaker 06:
That's really a decision for the judge to make, not... Just to be clear, and I must say I took it the same way, Judge Kavanaugh, I took your first answer.

[00:41:57] Speaker 06:
Were we to say there's a procedural error here?

[00:42:00] Speaker 06:
and therefore it has to be remanded.

[00:42:02] Speaker 06:
Is your position that the court will then give a reason that is substantively okay and procedural okay and you'll lose in any event?

[00:42:12] Speaker 06:
Or is your, which is the way I took your first answer, or is your answer is we'll have to see what reason is given and then we'll challenge it, which is the way I took your answer to Judge Millett?

[00:42:24] Speaker 06:
Which position are you taking here?

[00:42:28] Speaker 05:
In a way, both, because I don't think they're inconsistent.

[00:42:30] Speaker 05:
I think, does the court have discretion?

[00:42:32] Speaker 05:
If the case is remanded, does the court have discretion to make findings that warrant an upward departure?

[00:42:37] Speaker 05:
Certainly.

[00:42:38] Speaker 06:
And is there a basis for such a finding in this case?

[00:42:43] Speaker 05:
That's going to be discretionary with the judge, whether he believes that there's anything that takes this individual defendant's actions outside.

[00:42:48] Speaker 06:
So when you say it's a little bit of both, maybe the answer you're giving is, well, we don't know what the judge would do if he knew that he had to give an explanation.

[00:42:57] Speaker 05:
I don't know that the judge fully appreciated that he had to find a reason to depart outside of the reasons he articulated, which are all reasons.

[00:43:08] Speaker 03:
He doesn't have to do that.

[00:43:09] Speaker 03:
That's not the law.

[00:43:12] Speaker 03:
The law is its advisory.

[00:43:14] Speaker 04:
It gives a lot of reasons.

[00:43:16] Speaker 04:
He's lived through the whole trial.

[00:43:17] Speaker 04:
It gives a lot of reasons that he was concerned about the activity in this case, taking over apartments, what that had caused the community, the young folks in the neighborhood.

[00:43:29] Speaker 04:
I don't know.

[00:43:35] Speaker 04:
I mean, this is just Booker.

[00:43:37] Speaker 04:
Go back to Booker and revisit that, which a lot of people

[00:43:42] Speaker 04:
want to do, it seems like, then we can do that.

[00:43:48] Speaker 04:
But if they're advisory, they're advisory.

[00:43:50] Speaker 04:
And you just have to explain why you think this sentence is justified.

[00:43:55] Speaker 04:
And it's not science, as you know better than most.

[00:44:00] Speaker 05:
I'm not disagreeing that he has the discretion to depart upwards.

[00:44:03] Speaker 05:
He just has to make the findings.

[00:44:06] Speaker 05:
He has to comply with the procedural

[00:44:10] Speaker 04:
Safeguards with so that this court could find out and review and determine whether or not but the point of the procedural Safeguard is so that we can determine whether it's substantively unreasonable and right if we make crystal clear in our case law that substantive reasonableness review is extraordinarily deferential because The whole point post-booker is that as long as you're within the statutory range It's going to be we've said the rare case where you can find a sentence either

[00:44:39] Speaker 04:
We've had cases with government appeals from low sentences, and we've rejected those.

[00:44:49] Speaker 04:
We've had cases with defendant appeals from high sentences, and we've rejected those as being substantive.

[00:44:55] Speaker 05:
I don't suggest for a moment that the judge could not articulate a basis that would warrant an upward departure.

[00:45:02] Speaker 05:
What I'm suggesting is that it's procedural error for him to have ruled the way he did and not complied with that.

[00:45:08] Speaker 05:
And for that reason it has to be remanded.

[00:45:10] Speaker 05:
And then, you know, if there's an objection to be made, if he seeks to depart upwards,

[00:45:16] Speaker 05:
You know, on reconsideration, he has to comply with the statute.

[00:45:22] Speaker 05:
He has to give his basis.

[00:45:24] Speaker 05:
And I admit that it's a deferential review.

[00:45:27] Speaker 04:
Right.

[00:45:27] Speaker 04:
I understand.

[00:45:28] Speaker 04:
I mean, the point of your argument is that it's very hard for a district judge to vary upwards.

[00:45:33] Speaker 04:
And that makes the guideline upper bound, have talismanic significance, which is what the Supreme Court exactly said created the Sixth Amendment problem.

[00:45:43] Speaker 04:
that they eliminated in Booker.

[00:45:46] Speaker 04:
Of course, eight of the nine justices actually thought the guidelines range should still have significance, but the way the weird lineup worked, the one justice decided it, and the guidelines became advisory.

[00:46:00] Speaker 05:
But I think I not necessarily agree with the first premise in your question, which is that it's incredibly hard or unreasonably hard for judge boards.

[00:46:11] Speaker 05:
I think there are clearly bases for judges to depart upwards.

[00:46:14] Speaker 05:
They just have to make the fine things that warrant it, and that's what wasn't done in this case.

[00:46:20] Speaker 08:
Are you aware of any case where we have held that a court can vary, impose a variance go outside the guidelines range based on acquitted conduct?

[00:46:34] Speaker 05:
I'm certainly aware of cases where judges have considered relevant conduct that is acquitted.

[00:46:38] Speaker 08:
I'm asking you about whether there are variants outside the guidelines range of what you've got here.

[00:46:44] Speaker 05:
I've seen cases where judges have considered acquitted conduct as relevant conduct and departed significantly upwards.

[00:46:53] Speaker 05:
Yes.

[00:46:53] Speaker 08:
I'm talking about a variance outside the guidelines range.

[00:46:56] Speaker 05:
I'm not sure where the line gets drawn between a variance and an upward departure.

[00:47:01] Speaker 05:
I have seen it done, and I don't know if it was categorized as a variance or an upward departure based on relevant conduct, but I'm painfully aware of it having been done in some of my cases.

[00:47:11] Speaker 06:
Can I just say, I just want to be sure I understand your argument.

[00:47:15] Speaker 06:
Your argument is based on a key bay, which was decided after Booker, after Gall, after Kimbrough.

[00:47:23] Speaker 06:
And that case held, the district court has to say why.

[00:47:28] Speaker 06:
It has to give reasons that would not apply equally to any defendant convicting the offense, and instead provide individualized reasons.

[00:47:39] Speaker 06:
And in that case, we overrule.

[00:47:41] Speaker 06:
We remanded because the district court suggested that it did not suggest that it believed the guidelines range for health care fraud was too low even in the mine run of cases.

[00:47:51] Speaker 06:
In the what?

[00:47:51] Speaker 06:
In the mine run, that is, in the typical case.

[00:47:54] Speaker 06:
So your position is that notwithstanding Booker, notwithstanding Gall, notwithstanding Kimbrough, this court has said that you can't vary upwards without giving a reason different from

[00:48:12] Speaker 06:
the mine run of cases considered by the guidelines, unless you just state, I don't think the guidelines are good enough, which is what the Supreme Court held in this year's case.

[00:48:23] Speaker 05:
I think if the Court had made that statement.

[00:48:24] Speaker 06:
We may be wrong in that position, but it is the position of this Court.

[00:48:30] Speaker 05:
All right.

[00:48:31] Speaker 05:
And not to be redundant, but my position is that based on Akigbe, the Court needs to particularize its findings as to why it is deporting out.

[00:48:38] Speaker 05:
Which phrased another way, as it was phrased in Kigbe, was what takes this particular defendant out of the run-of-mill average defendant in the same situation for the same context.

[00:48:51] Speaker 05:
Why should this person be sentenced more hard?

[00:48:53] Speaker 04:
Does every case for the crime of which your client was convicted involve young folks in the neighborhood?

[00:49:01] Speaker 05:
I wouldn't know.

[00:49:03] Speaker 05:
I wouldn't know.

[00:49:03] Speaker 05:
And if the court says that's a reason to depart.

[00:49:06] Speaker 05:
That is one of the reasons.

[00:49:07] Speaker 05:
That is one of the reasons.

[00:49:10] Speaker 04:
Does every case involve a lot of weapons?

[00:49:13] Speaker 05:
And there was an enhancement based on the number of weapons.

[00:49:18] Speaker 05:
There was an enhancement based on

[00:49:22] Speaker 05:
Oh, based on use of the weapons in connection with a felony.

[00:49:28] Speaker 05:
Exactly what the felony was was never stated, but assumedly it was drugs.

[00:49:32] Speaker 05:
And interestingly, he was acquitted of all the drug conducts, much of it by the court.

[00:49:39] Speaker 05:
But nonetheless, apparently the court departed upwards, or yeah, gave it an enhancement based on the gun being used in connection with and exactly the reasons the court stated.

[00:49:51] Speaker 04:
There was... He refers to a lot of weapons and related acts of violence.

[00:49:56] Speaker 04:
Not every case for these crimes or these enhancements would involve that.

[00:50:00] Speaker 04:
He also refers to young folks in the neighborhood.

[00:50:02] Speaker 04:
Not every case would involve that.

[00:50:06] Speaker 04:
Also, obviously, this case involved taking over apartments and running drug operations and terrorizing the neighborhood with taking over apartments.

[00:50:16] Speaker 04:
Not every case involves that.

[00:50:18] Speaker 04:
Terrorizing might be too strong in your characterization, but that's one characterization.

[00:50:22] Speaker 05:
Well, interestingly, those were all allegations the government made, and several of them were rejected by the court, and the remainder were rejected by the jury.

[00:50:28] Speaker 04:
I understand, and that's a good point on the acquitted conduct, and I've written about that, and I'm sympathetic to that, but the judge at sentencing can take into account, of course, all the relevant conduct that the judge believes

[00:50:41] Speaker 04:
occurred in justifying the sentence for the account of conviction.

[00:50:45] Speaker 05:
And if the judge said, even though there had been an acquittal, I am going to consider these acquittals as relevant conduct and based on that I am going to depart upwards, that would be within his discretion.

[00:50:56] Speaker 05:
But that's not what he said.

[00:50:58] Speaker 05:
And interestingly, the things he did say are, I would argue,

[00:51:02] Speaker 05:
I mean, you ask the question, do all these cases involve neighborhoods where there are kids?

[00:51:05] Speaker 05:
Well, I don't know if that's an element or a question of evidence in each case, but I think it's safe to assume that most drug activity occurs in communities and in every community there's kids.

[00:51:16] Speaker 06:
That's not considered by the guidelines.

[00:51:18] Speaker 06:
So that is a factor that's not considered by the guidelines.

[00:51:22] Speaker 06:
There's no affects kids adjustment in the guidelines like there is for

[00:51:28] Speaker 06:
in this particular guideline for guns and for other crimes associated with guns.

[00:51:33] Speaker 05:
So I would guess as an academic matter, if the judge wanted to make that finding,

[00:51:37] Speaker 05:
and put it in writing and state, I'm departing upwards because of this, that may be within his discretion.

[00:51:43] Speaker 05:
That may be an aggravating factor.

[00:51:45] Speaker 05:
When we look at the sentencing thing, there's nothing written down.

[00:51:50] Speaker 05:
There's a couple of box checked off.

[00:51:51] Speaker 08:
I thought there had been an enhancement at one point, a proposed enhancement for involvement of children that the district court rejected.

[00:51:58] Speaker 08:
Am I correct about that?

[00:52:00] Speaker 05:
I do not recall that off the top of my head.

[00:52:03] Speaker 05:
I don't know if anybody requested that enhancement.

[00:52:05] Speaker 05:
I think there is.

[00:52:06] Speaker 05:
I know in other quams there is an enhancement involving use of children, but I don't know if it was ever requested or expanded in this case.

[00:52:12] Speaker 05:
I can't say.

[00:52:14] Speaker 04:
I know your client obviously was upset at sentencing, and I read that, and I understand why.

[00:52:23] Speaker 04:
Because the count of conviction, and then you get the high sentence.

[00:52:27] Speaker 04:
I understand that.

[00:52:29] Speaker 04:
I understand the concern from your perspective, but I'm also thinking about what our role is.

[00:52:34] Speaker 04:
So that's the nature of my questions.

[00:52:36] Speaker 05:
I understand and I appreciate that.

[00:52:37] Speaker 05:
And I'm not saying – well, I'm being redundant.

[00:52:40] Speaker 05:
I'm not saying the court didn't have discretion to depart upwards.

[00:52:43] Speaker 05:
They just have to follow the appropriate procedure.

[00:52:47] Speaker 06:
In settles, we said that you could consider acquitted conduct in deciding on a sentence.

[00:52:54] Speaker 05:
Well, it's an interesting question.

[00:52:56] Speaker 05:
Yes, obviously you can consider acquitted conduct.

[00:52:58] Speaker 06:
It's not that interesting in the circuit because we've decided.

[00:53:01] Speaker 05:
No.

[00:53:01] Speaker 05:
It is interesting, but... It presents in an interesting framework in this case when much of the acquitted conduct was based on a judge granting a motion for judgment of acquittal.

[00:53:11] Speaker 05:
So how do you make a finding that

[00:53:13] Speaker 06:
I mean, obviously, the basis for the theory about considering acquitted conduct is different standards of review, right?

[00:53:21] Speaker 06:
And for the judgmental acquittal is no reasonable jury could find beyond reasonable doubt.

[00:53:26] Speaker 06:
And for sentencing, it's preponderance.

[00:53:30] Speaker 05:
Right.

[00:53:30] Speaker 05:
And so I guess the question becomes, and it's an interesting academic question, can you find by preponderance of the evidence that

[00:53:37] Speaker 05:
the client should be held account or the defendant should be held accountable for relevant conduct when you found that based on viewing the evidence in the light most favorable to the government, there isn't enough there to go to the jury.

[00:53:47] Speaker 05:
And I thought we settled that in case appropriately entitled settles.

[00:53:53] Speaker 05:
I'll have to go back and look at that.

[00:53:54] Speaker 05:
But I know as an academic matter, it exists.

[00:53:58] Speaker 05:
OK.

[00:53:58] Speaker 06:
Anything else?

[00:53:59] Speaker 06:
Further questions?

[00:54:00] Speaker 05:
Thank you.

[00:54:12] Speaker 00:
Good morning, may it please the court, Jane Ewing for the United States.

[00:54:16] Speaker 00:
None of Appellant's claims warrant reversal or remand from this court.

[00:54:20] Speaker 00:
I plan to cover the matters raised this morning by Appellants Adonna, Matthews, and Brown in that order.

[00:54:29] Speaker 00:
And I'll rest on my brief as to Appellant Boston unless the court has questions on Appellant Boston.

[00:54:34] Speaker 00:
Turning to Appellant Adonna first.

[00:54:37] Speaker 00:
Appellant Donna waived his current claim as part of his plea agreement.

[00:54:41] Speaker 00:
He went into that.

[00:54:42] Speaker 06:
What about the judge's statement that you'll be able to appeal for reasonableness?

[00:54:47] Speaker 00:
Right, Your Honor.

[00:54:48] Speaker 00:
You're speaking to supplemental 10x pages 56h.

[00:54:52] Speaker 00:
What the district court said was, now with regard to certain circumstances, you may even have an opportunity, the right to appeal the sentence,

[00:54:59] Speaker 00:
on the grounds of reasonableness.

[00:55:01] Speaker 00:
So, in context, Your Honor, that it was clear to the parties what that meant.

[00:55:05] Speaker 00:
Those certain circumstances were with, were, if the district court... Clear to the parties doesn't matter.

[00:55:11] Speaker 08:
Clear to the defendant is what matters.

[00:55:14] Speaker 08:
And it's the district court's obligation to make it clear directly to the defendant.

[00:55:19] Speaker 08:
That's the whole point of this colloquy.

[00:55:22] Speaker 08:
So where can you point me in the colloquy that made it clear to the defendant that appeals could not be taken on grounds of unreasonableness more broadly?

[00:55:35] Speaker 00:
Supplemental appendix pages 56, J and K. Adonna's own counsel, Mr. Abunani, said, I think that

[00:55:44] Speaker 00:
The district court covered us a few minutes ago with you, but he understands that he has the ability to appeal if you go above guidelines.

[00:55:50] Speaker 08:
No, that doesn't mean that's the only time he can appeal.

[00:55:53] Speaker 08:
If he's just been told by the district court judge, I can appeal on, I think he said reasonableness.

[00:55:57] Speaker 08:
I guess it would be unreasonableness.

[00:55:59] Speaker 08:
And then counsel said, and by the way, here's one instance where you get to appeal.

[00:56:05] Speaker 08:
I mean, he didn't say the only time you get to appeal, and that wouldn't be the only time he got to appeal.

[00:56:11] Speaker 00:
I agree that there are other reasons that a sentence could be unreasonable other than if it's outside the guideline range, for example.

[00:56:16] Speaker 00:
But if you read that in context with in the same, again, moving to the same colloquy, supplemental appendix pages J and K, Adonna agreed with his counsel's characterization of the plea.

[00:56:32] Speaker 06:
Can you tell us, tell me where that is?

[00:56:34] Speaker 06:
So the part I have marked on 56J says,

[00:56:40] Speaker 06:
The Council says you would consider the advisory guidelines.

[00:56:44] Speaker 06:
The Court would probably depart upward and state the reasons for that.

[00:56:47] Speaker 06:
I've explained to Mr. Adonna, and I think Your Honor just went over that briefly with him earlier, that under the plea agreement, he retains the right to appeal that decision.

[00:56:56] Speaker 06:
Right.

[00:56:57] Speaker 06:
That doesn't say, as Judge Millett said, that doesn't say only that decision.

[00:57:00] Speaker 06:
I agree with that.

[00:57:02] Speaker 06:
We also, even in the plea agreement and the lawful sentence above the statute, he would be able to

[00:57:07] Speaker 06:
challenge, right?

[00:57:08] Speaker 00:
Correct, Your Honor.

[00:57:09] Speaker 00:
And that's joint appendix page 108, which is very crystal clear that says really the two ways that you can appeal the sentence in this case is above guidance.

[00:57:17] Speaker 06:
Where else in the plea is it made clear to him that he's restricted in this way, in the way that you want him to be restricted, in the way that the plea agreement is?

[00:57:27] Speaker 00:
Well, in the plea colloquy, it's really

[00:57:33] Speaker 00:
As the court talked about in the Kaufman case, the Kaufman case said there was a situation where the district court said, you know, you may be able to appeal the Senate if you don't like it or something like that.

[00:57:42] Speaker 00:
And Kaufman said, you know, the prosecutor could have cleaned that up.

[00:57:46] Speaker 00:
Our submission to the court is, in this case, four pages later, the defense attorney cleaned it up.

[00:57:52] Speaker 00:
And then Adonna agreed that, and that was supplemental appendix pages, excuse me, page 56J,

[00:58:01] Speaker 00:
Which is the part where Mr. Abanani said, I believe you just covered it with him.

[00:58:07] Speaker 00:
Those are the certain circumstances that the district court was discussing.

[00:58:11] Speaker 00:
And this is in the context of this case where the district court's been saying for months, he's likely going to go above guidelines.

[00:58:17] Speaker 00:
And so the party was clear to all the parties and interestingly in Adonis reply brief he doesn't even come back and point to this language by the district court.

[00:58:26] Speaker 00:
He just says well this was in essence an above guideline sentence.

[00:58:30] Speaker 00:
So therefore the clause in Joint Appendix 108 in the written plea

[00:58:34] Speaker 00:
is raised and I can appeal it because it's an above-the-line guideline sentence.

[00:58:38] Speaker 00:
He doesn't even point to this language by the district court, and our submission would be, that's because everyone knew what the district court meant by that.

[00:58:46] Speaker 00:
Everyone knew that the district court was telling Adonna, hey.

[00:58:49] Speaker 08:
Well, I think my concern is that Rule 11 colloquies are really important for waivers of very, very important whites.

[00:58:55] Speaker 08:
And when we say everybody knew, that often means, well, the lawyers and the judge.

[00:59:00] Speaker 08:
knew what was going on.

[00:59:02] Speaker 08:
Why shouldn't we still be concerned about this, given how plain the misrepresentation or mischaracterization of Mr. B, inadequate characterization of the appellate waiver was during the plea colloquy?

[00:59:20] Speaker 00:
Supplemental appendix, page 56, J&K, Adonna agreed personally to his defense counsel's representation of the facts of the case, or excuse me, of the plea agreement.

[00:59:33] Speaker 00:
So that's him affirming, hey, I understand this.

[00:59:37] Speaker 00:
I personally understand it.

[00:59:38] Speaker 00:
It's not just my defense counsel saying that this is how I'm going to be able to appeal.

[00:59:43] Speaker 00:
So that's our submission.

[00:59:44] Speaker 00:
We think in context.

[00:59:45] Speaker 08:
So even when district courts get errors and colloquies, as long as counsel says,

[00:59:50] Speaker 08:
I agree with what my lawyer told me the agreement says that's enough.

[00:59:55] Speaker 00:
In the sense of that the lawyer said he can appeal if the district court goes above guidelines.

[01:00:01] Speaker 06:
Where's the sentence you're talking about the defendant agreeing that he understands?

[01:00:06] Speaker 00:
I don't, I just have it as supplement appendix, page 56 J&K, I don't have the supplement appendix with me, but it was along the lines of, do you agree with your defense counsel's recitation of the plea agreement and Adama said yes?

[01:00:20] Speaker 08:
It says the essential terms of the plea agreement.

[01:00:22] Speaker 00:
Correct.

[01:00:23] Speaker 00:
And that's what I was pointing to, Your Honor.

[01:00:25] Speaker 00:
It doesn't specifically talk about that plea waiver.

[01:00:29] Speaker 00:
If I may turn to the merits of Adonis.

[01:00:31] Speaker 04:
One more question on this, which is I had this recently in another case.

[01:00:36] Speaker 04:
You all would be well advised to be on alert at these plea colloquies to make sure everything's

[01:00:43] Speaker 04:
completely clear it's just coming up too often so I'm sure you're doing that but I would reinforce I said this last week to reinforce that these kinds of things can be avoided very easily and I will advise the court that we have instituted rule 11 training in our criminal division more than training I mean there should be something this should not happen and I realize there are other I mean there are lots of

[01:01:07] Speaker 04:
people involved, but it can be easily prevented by you, too.

[01:01:09] Speaker 04:
So I'm not meaning to be scolding or anything.

[01:01:12] Speaker 04:
I'm just saying we can avoid this systemically.

[01:01:15] Speaker 00:
And that was Kaufman's teaching, is that if something muddies the water in the middle of a Rule 11 colloquy, it can be fixed.

[01:01:21] Speaker 00:
Right.

[01:01:21] Speaker 00:
We've said that.

[01:01:22] Speaker 00:
So we understand that.

[01:01:22] Speaker 00:
Our position here is that the defense counsel fixed it.

[01:01:25] Speaker 00:
Understand you may not accept that argument.

[01:01:29] Speaker 00:
So I'd like to turn to the merits of Adonis' claim.

[01:01:31] Speaker 06:
Can I ask you a question about the merits?

[01:01:33] Speaker 06:
Yes.

[01:01:34] Speaker 06:
So what do we do with 5G1.3b?

[01:01:41] Speaker 06:
Right.

[01:01:42] Speaker 06:
A sentence for the incident of offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

[01:01:51] Speaker 06:
Now, as Judge Kavanaugh points out, of course, this could be overridden by the judge's discretion.

[01:01:59] Speaker 06:
But the first step in Gall and Kimbrough is that the judge understand what the guidelines actually say.

[01:02:06] Speaker 06:
And there's no reference to this at all in the sentencing.

[01:02:12] Speaker 06:
So the judge could have said, well, I understand that I'm supposed to run it concurrently to the remainder.

[01:02:18] Speaker 06:
This is not a kind of case where I'm going to do that for the following reasons.

[01:02:22] Speaker 06:
But the judge didn't do that.

[01:02:24] Speaker 06:
So what do we do with this?

[01:02:26] Speaker 00:
Well, a couple of responses to that, Your Honor.

[01:02:28] Speaker 00:
First, we would say that it was waived because he didn't raise the 5G 1.3 in the district court or in his opening brief.

[01:02:37] Speaker 00:
And so based on the Taylor case, it's waived because he didn't brief it.

[01:02:41] Speaker 00:
We raised it because we do believe it's germane based on the facts of this case.

[01:02:48] Speaker 00:
But this kind of goes back to this overall kind of concept.

[01:02:51] Speaker 06:
It's not waived.

[01:02:53] Speaker 00:
It's forfeited in the district court, and your argument is waived in this court.

[01:02:59] Speaker 00:
Correct.

[01:02:59] Speaker 00:
Right.

[01:02:59] Speaker 00:
And just to speak to that for a moment, I do want to get to kind of the underlying idea that Adonna was not on notice that these were going to be consecutive sentences, because I do think that's germane to the 5G 1.3 point as well.

[01:03:11] Speaker 00:
But just as to kind of how it was raised, it's a very different thing to raise what we would characterize as kind of an equity argument in the district court and on appeal for that matter, to say, please run these sentences concurrently, you know, even though we understand you don't have to.

[01:03:29] Speaker 08:
I don't read their argument here as an equity claim to us.

[01:03:32] Speaker 08:
They're saying legal error was committed, these things should have been run concurrently, or at least partially.

[01:03:38] Speaker 08:
concurrently for the relevant time, and it was error not to have done that.

[01:03:45] Speaker 08:
There wasn't a site to 5G 1.3, but I don't think our case law requires that if they've made the claim directly to us.

[01:03:51] Speaker 08:
Legal error was committed.

[01:03:54] Speaker 08:
We don't have equity discretion in this area.

[01:03:56] Speaker 08:
It was legal error not to have it run concurrently.

[01:03:59] Speaker 08:
Isn't that good enough?

[01:04:00] Speaker 00:
I guess my point, Your Honor, is that if you're before a district court judge, it's one thing to point to a specific guidelines provision and say, read this.

[01:04:07] Speaker 00:
This applies to our facts.

[01:04:09] Speaker 00:
It's another thing to say, please take this into consideration because it's fair.

[01:04:13] Speaker 00:
Those are two kind of very different things.

[01:04:15] Speaker 00:
They didn't tee up the 5G 1.3.

[01:04:16] Speaker 08:
So I want to talk about what you argued was a waiver before us.

[01:04:20] Speaker 08:
Before us, you clearly made the argument that it was legal error not to run it, at least partially concurrently.

[01:04:27] Speaker 00:
I agree.

[01:04:28] Speaker 00:
OK.

[01:04:28] Speaker 00:
Yes.

[01:04:29] Speaker 00:
All right.

[01:04:30] Speaker 00:
And I guess that brings me to kind of this underlying point that I really want to take on, that Adonna did not sign up for this consecutive sentence piece.

[01:04:39] Speaker 00:
So I point you to supplemental appendix page 56C and D, which was a, this was a status hearing before Adonna even entered his plea in either case.

[01:04:54] Speaker 00:
And the district court said, this was in the context of the district court rejecting a number of plea agreements in this case because he thought that they were too lenient.

[01:05:04] Speaker 00:
The district court said, I'll only accept a plea with regard to Adonna if Adonna is sentenced first in Superior Court so that I have the option, which I will exercise, to sentence him consecutively.

[01:05:16] Speaker 00:
I can't control what the Superior Court does.

[01:05:19] Speaker 00:
But it will be a consecutive sentence.

[01:05:21] Speaker 00:
I don't want any misunderstanding about this.

[01:05:23] Speaker 00:
So this is before Adonna enters his plea in either case.

[01:05:29] Speaker 00:
This is what he's signing up for.

[01:05:30] Speaker 00:
And he got a huge benefit from this plea agreement.

[01:05:34] Speaker 00:
He got 22 counts dismissed on the district court side.

[01:05:37] Speaker 00:
He got 28 months of confinement for an offense, a shooting offense, in Superior Court, which he could have gotten up to 30 years on.

[01:05:45] Speaker 00:
So he's going into this with his eyes open.

[01:05:47] Speaker 00:
He knows that he's signing up for consecutive sentences.

[01:05:50] Speaker 00:
In fact, Mr. Abunani, who did not personally represent him in the Superior Court case, showed up at his Superior Court sentencing and told the Superior Court judge, Judge Broderick,

[01:06:01] Speaker 00:
that the district court judge was going to sentence him consecutively.

[01:06:06] Speaker 00:
And that's joint appendix page 337.

[01:06:08] Speaker 00:
So he's leveraging this consecutive thing in the Superior Court.

[01:06:13] Speaker 00:
He's saying, hey, Superior Court Judge, the district court judge has already told me that I'm going to get a consecutive sentence.

[01:06:19] Speaker 00:
So now he's coming back and trying to say that this was improper somehow when Judge Leon did what he always said he was going to do and run the sentences consecutively.

[01:06:31] Speaker 00:
So he got a vast benefit of this bargain, which he's now kind of trying to have it both ways by saying that it should have been run consecutively, or excuse me, concurrently.

[01:06:42] Speaker 00:
uh... looking at you know how to deal with five g one point three we would say it's waived but if you disagree with that at most it's plain error review and what we know about that is on prong three of plain error review we know that the district court would have given the same sentence because he said before adana even entered his plea that he was going to run them consecutively that was an essential part of the whole plea agreement

[01:07:11] Speaker 06:
In light of Akibe and the other subsequent two cases, if he's going to ignore the guideline, doesn't he have to give one of two reasons, either that this is not a run-of-the-mill case or that my policy is always to do consecutive and I don't care what the guidelines say and I just disagree with them?

[01:07:31] Speaker 06:
He has to say one of those two, right?

[01:07:37] Speaker 00:
You are my understanding of a key base goes to the guideline range.

[01:07:42] Speaker 00:
I mean maybe maybe this is it.

[01:07:43] Speaker 00:
This is a this is about ignoring the guidelines.

[01:07:46] Speaker 00:
Well it's.

[01:07:48] Speaker 00:
it's whether a i think that's right but what and this is kind of goes to really adana's reply brief where he says this is really an above-guidelines sentence but he agreed to the guidelines range no i don't mean that i mean this is the rule about consecutive and concurrent sentencing is a guideline agreed so if you violate that you're giving

[01:08:14] Speaker 06:
outside the guideline sentence, which is permissible as long as you explain yourself.

[01:08:20] Speaker 00:
Well, I guess our position there would be the district court did explain itself.

[01:08:25] Speaker 00:
I mean, 5G 1.3 wasn't raised for the district court.

[01:08:28] Speaker 00:
It's hard to explain something that's not presented.

[01:08:30] Speaker 00:
Right.

[01:08:31] Speaker 00:
And that's why I'm saying it's different to point to a particular guideline provision and say, you know, please, out of amount of fairness, please run these concurrently.

[01:08:38] Speaker 00:
Those are two different things.

[01:08:40] Speaker 00:
But the district court did

[01:08:42] Speaker 00:
Even all the way back to saying, hey, I'm not even going to accept this plea unless I get to go second, because I'm going to get consecutively.

[01:08:48] Speaker 00:
He's talking about the seriousness of the offenses involved.

[01:08:54] Speaker 00:
He was well aware that the Superior Court case involved a shooting.

[01:08:58] Speaker 00:
So all these things were before the District Court.

[01:09:02] Speaker 04:
It just shows that I think your argument would be tougher if this had been, it's obviously tougher, if this had been raised to the District Court and the District Court had still not said anything about it.

[01:09:14] Speaker 00:
Correct.

[01:09:14] Speaker 00:
I agree.

[01:09:15] Speaker 00:
Yes.

[01:09:16] Speaker 00:
And in that case, that's the reason why I sent over Rouse.

[01:09:18] Speaker 00:
District Court's got to hunt the guidelines.

[01:09:20] Speaker 00:
Because in Rouse, the same thing happened.

[01:09:22] Speaker 00:
The defense attorney in Rouse asked for concurrent sentences, but did not point to 5G 1.3.

[01:09:32] Speaker 00:
And the Fourth Circuit said, and it was briefed on appeal, unlike here.

[01:09:37] Speaker 00:
But the Fourth Circuit said, well, it's plain error review, because you didn't point to a particular guideline range.

[01:09:43] Speaker 00:
I see I want to manage my time if there's any.

[01:09:46] Speaker 00:
Before you manage your time, what about the written statement of reasons requirement?

[01:09:52] Speaker 06:
Regarding, Your Honor?

[01:09:54] Speaker 06:
The written statement of reasons requirement?

[01:10:00] Speaker 00:
I don't have that in front of me as to a Donna.

[01:10:02] Speaker 00:
I know that.

[01:10:02] Speaker 00:
Oh, I'm sorry.

[01:10:03] Speaker 00:
I'm sorry.

[01:10:03] Speaker 00:
I'm sorry.

[01:10:03] Speaker 00:
It's Matthews.

[01:10:04] Speaker 00:
Yes.

[01:10:04] Speaker 00:
It's Matthews.

[01:10:05] Speaker 00:
I'm sorry.

[01:10:06] Speaker 00:
I can't speak.

[01:10:08] Speaker 00:
And I can jump to Matthews now if the court would.

[01:10:11] Speaker 00:
Nobody objects?

[01:10:12] Speaker 00:
Move on to Matthews.

[01:10:14] Speaker 00:
Very well.

[01:10:17] Speaker 00:
The district court did do a written statement of reasons, just to start with Chief Judge Garland's question.

[01:10:23] Speaker 00:
It's joint appendix page 570 in the Matthews case, and it's... He just checked the boxes, right?

[01:10:30] Speaker 00:
Correct, he did.

[01:10:31] Speaker 00:
But he indicated that those, and this is cited at page 87, note 37 of our brief, and that went through the reasons why he believed that an above-guidelines sentence was appropriate.

[01:10:42] Speaker 00:
I know that we started talking about

[01:10:44] Speaker 00:
the Matthew second claim was what the court was talking about before I got up here so I'll start with that one.

[01:10:53] Speaker 00:
The district court gave ample

[01:10:57] Speaker 00:
explanation about why this was far from a typical FIP case.

[01:11:02] Speaker 00:
Now you're talking about orally?

[01:11:04] Speaker 00:
Correct, yes.

[01:11:06] Speaker 06:
What are the reasons that make it up different than an ordinary case?

[01:11:09] Speaker 00:
Well, the different than an ordinary case include the community impact,

[01:11:16] Speaker 00:
Uh, that he, that he referred to multiple times, uh, in the, I believe we, we quoted most of what he said in our brief, that this, that impact on children there in Woodbury Village, that the, uh, some children even potentially look up to Matthews and his, uh, drug dealing activities.

[01:11:33] Speaker 06:
Was there evidence about children in the community in the case?

[01:11:37] Speaker 00:
There was evidence of, well, the government decided not to call child witnesses.

[01:11:45] Speaker 00:
There was evidence of some children being present.

[01:11:50] Speaker 00:
I can't point the court to a specific person.

[01:11:51] Speaker 04:
That would be a different argument, right?

[01:11:53] Speaker 04:
He referred to children.

[01:11:55] Speaker 04:
If there's an evidence supporting it, they can make that argument, but they didn't make that argument.

[01:11:59] Speaker 00:
Correct.

[01:11:59] Speaker 00:
And what they're saying is that he didn't adequately explain.

[01:12:02] Speaker 00:
So the guideline range is 78 to 97 months.

[01:12:05] Speaker 00:
He gave 108 months.

[01:12:06] Speaker 00:
So he gave, I mean, this is an FIP case.

[01:12:09] Speaker 00:
He gave ample reasons why this was not just a run of the mill FIP case based on the drug dealing activities of Matthews and his co-conspirators.

[01:12:22] Speaker 00:
The fact that it had a massive impact on this particular community.

[01:12:27] Speaker 00:
And I would point the court also to, I believe it's the ransom case from 2014 that says that just because something is also mentioned in the guidelines calculation doesn't mean that it's not a legitimate reason for an upward variance.

[01:12:45] Speaker 00:
I think I understand departure versus variance, and my understanding is this was a variance.

[01:12:50] Speaker 00:
This was a variance.

[01:12:52] Speaker 00:
This was not a departure.

[01:12:53] Speaker 00:
And so he's giving his reasons for this upward variance from essentially the top of the guidelines of 97 up to 108.

[01:13:03] Speaker 00:
We think that was fully appropriate and we don't believe remand is required.

[01:13:07] Speaker 08:
Where did the district courts say how the impact on the community of this drug dealing was different than

[01:13:19] Speaker 08:
the ordinary impact of criminal drug dealing on communities.

[01:13:23] Speaker 08:
I mean, it's bad, very bad wherever it happens.

[01:13:26] Speaker 08:
And in my sense, at least, that there's children everywhere.

[01:13:31] Speaker 08:
I don't know if there was any evidence this was more children than elsewhere.

[01:13:35] Speaker 08:
So what evidence was there that this was more of an impact on the community?

[01:13:41] Speaker 08:
You mentioned that.

[01:13:41] Speaker 00:
Well, I think that there is a

[01:13:52] Speaker 00:
In an FIP case, which is just possession of a weapon with a prior felony, there's not necessarily any community impact at all in some cases.

[01:14:03] Speaker 00:
So that is a way that this case is different.

[01:14:06] Speaker 00:
It's a way that this case is not the mind run of FIP cases.

[01:14:10] Speaker 00:
because of the community impact of Matthew's actions along with his co-conspirators in this case.

[01:14:15] Speaker 08:
So punishing him for all the stuff that he was acquitted of.

[01:14:18] Speaker 08:
That's what made him outside.

[01:14:21] Speaker 00:
And it is settled that... I'm trying to make sure there's nothing about his felon in possession.

[01:14:29] Speaker 08:
It sounds to me like you're not saying there's anything about his felon in possession that made him warrant a variance.

[01:14:35] Speaker 08:
It's this other conduct.

[01:14:37] Speaker 08:
that it rested entirely on other condo distinct from his felon in possession conviction.

[01:14:42] Speaker 00:
I would disagree with that.

[01:14:43] Speaker 00:
Well, because I mean, they're you know, felon in possession of a firearm.

[01:14:48] Speaker 08:
There were multiple firearms involved in this case enhancement for the district court.

[01:14:52] Speaker 08:
Find that enhancement wasn't good enough.

[01:14:55] Speaker 00:
It's just a, I don't know that it found it wasn't good enough, but I think that's what Ransom says.

[01:15:00] Speaker 00:
Just because something is a two-point bump, for example, in the guidelines calculation, it doesn't mean you can't also consider it.

[01:15:07] Speaker 08:
No, if you're going to use it for something more, then you have to explain yourself more, right?

[01:15:11] Speaker 08:
You can't just go, yep, there's two, I'd like to add another two and move on, right?

[01:15:16] Speaker 00:
I agree with that, Your Honor, but I think that

[01:15:18] Speaker 00:
Just the community impact alone takes this case out of the... Of his felon in possession or of his other conduct?

[01:15:26] Speaker 00:
Well, the felon in possession is the charge of conviction, so he's being sentenced on that.

[01:15:30] Speaker 00:
The community impact of his felon in possession and in the way that he possessed that weapon, and multiple weapons, in fact, and along with in the context of all this other relevant conduct, that's what takes this case out of the mine run of cases.

[01:15:45] Speaker 00:
The relevant conduct can justify the variance.

[01:15:48] Speaker 00:
Correct.

[01:15:49] Speaker 00:
Yes.

[01:15:50] Speaker 00:
Turning to, if I may turn to Matthew's ADW point, Matthews essentially just misreads the elements of DCADW.

[01:15:58] Speaker 00:
Spencer teaches us that in DC, it's not a, Matthews thinks that DCADW can be punch somebody in the face with a gun in your pocket.

[01:16:14] Speaker 00:
That's not what DCADW is, though.

[01:16:16] Speaker 00:
DCADW requires use of the dangerous weapon.

[01:16:20] Speaker 00:
And so that's the part that he misses from Spencer.

[01:16:23] Speaker 00:
So that makes it on point with the Redwood case, which says, quote, certainly the additional element of use of a dangerous or deadly weapon supplies at a minimum a threat of physical force against the person of another.

[01:16:36] Speaker 00:
So that would be our submission, that he essentially just misreads the DCADW.

[01:16:44] Speaker 00:
statute altogether on that.

[01:16:47] Speaker 00:
If there are no further questions on Matthews, I would turn to Appellant Brown.

[01:16:57] Speaker 00:
Appellant Brown's jury instructions are either waived or do not constitute plain error.

[01:17:05] Speaker 00:
The UF claim is classic invited error.

[01:17:08] Speaker 00:
It's essentially the flip side of this court's case in Harrison.

[01:17:11] Speaker 00:
In Harrison, the situation was it was fugitive in a possession of a weapon, because the person was a fugitive at the time they were caught with the weapon.

[01:17:23] Speaker 00:
And in Harrison, the defense counsel at trial said, please don't tell the jury about this fugitivity status.

[01:17:32] Speaker 00:
And so the district court didn't.

[01:17:34] Speaker 00:
And then on appeal, the claim was that was error, because it's an element of the offense.

[01:17:40] Speaker 00:
This is the flip side of that.

[01:17:42] Speaker 00:
Because all this is is, this is the defense attorney at trial telling the judge, I affirmatively want you to tell them about this prior conviction.

[01:17:57] Speaker 00:
I'm asking you to do that.

[01:17:59] Speaker 08:
That's more than a waiver, it's an invited error.

[01:18:01] Speaker 00:
Correct.

[01:18:01] Speaker 00:
It's an invited error, and it's Jacqueline Wheeler, and we would submit Harrison as well.

[01:18:07] Speaker 00:
And now on appeal saying... Well, he left out the most... Excuse me?

[01:18:12] Speaker 06:
I would say he left out the most indicting sentence, which is, you don't do it, I'm going to do it.

[01:18:17] Speaker 00:
Right.

[01:18:17] Speaker 00:
I mean, if you don't do it, I'm going to do it.

[01:18:20] Speaker 00:
And now to complain about that, we would contend he's not allowed to do that.

[01:18:25] Speaker 00:
Turning to the Pwyd PCP unanimity claim, the Pwyd PCP count that Brown was convicted of was cabined by the indictment to January 7th to January 12th of 2013.

[01:18:39] Speaker 00:
January 12th was the day of the Lewis Clifton apartment search.

[01:18:44] Speaker 00:
So this is not like every PCP in the world that we're talking about here.

[01:18:48] Speaker 00:
This is the piece, this is the nine vials that were found inside Lewis Clifton's apartment, five of which had at least some PCP in them.

[01:18:57] Speaker 00:
Brown's in there by himself with a key to the apartment.

[01:19:00] Speaker 00:
He's got a gun that's on the, that is left on the couch when he gets up, when he's arrested by the police.

[01:19:07] Speaker 00:
So that's the PCP we're talking about here.

[01:19:09] Speaker 00:
So really all they're talking about it, does it matter?

[01:19:11] Speaker 00:
You can finish this point.

[01:19:14] Speaker 00:
Thank you.

[01:19:17] Speaker 00:
Does it matter whether it's vial one or vial two under Lewis Clifton's sink?

[01:19:23] Speaker 00:
And that just doesn't matter because that is a means of committing the

[01:19:29] Speaker 00:
with detectable amount of PCP.

[01:19:32] Speaker 00:
That is not an element of PCP, so there was no special unanimity instruction.

[01:19:37] Speaker 00:
Your Honor, if I may just briefly address the burglary claim.

[01:19:41] Speaker 06:
Can I just ask you to go back to that statement of reason's form that we passed on to another defendant already?

[01:19:46] Speaker 06:
Yes.

[01:19:47] Speaker 06:
So in Akive, we said that this checking of the boxes wasn't good enough, and in particular, we pointed out the particular boxes which included

[01:19:59] Speaker 06:
the same boxes, some of the same boxes that were checked here to provide adequate deterrence and protect the public, provide just punishment for the offense, on the theory that the statute requires with specificity.

[01:20:19] Speaker 06:
So what do we do with that?

[01:20:21] Speaker 00:
Well, I guess we would contend that the statement of reasons should be read in conjunction with the articulated reasons on the record, that it doesn't have to kind of stand on its own.

[01:20:33] Speaker 00:
That's not my understanding of the Akibe rule, that it's read in conjunction with the

[01:20:41] Speaker 00:
district courts articulated statement of reasons on the record.

[01:20:44] Speaker 00:
And now we're back to Matthews, if I'm understanding.

[01:20:46] Speaker 00:
Yes, yes.

[01:20:46] Speaker 00:
Yes.

[01:20:46] Speaker 06:
The one I started with, we never got to it.

[01:20:48] Speaker 06:
So that's right.

[01:20:49] Speaker 00:
So we agree that it's just a box check, but we don't believe that that's dispositive here because of the reasons that the district court gave on the record.

[01:20:57] Speaker 04:
And we've said that that form, isn't that form used for the Sentencing Commission, correct?

[01:21:02] Speaker 00:
Correct.

[01:21:03] Speaker 00:
And I believe it's... We've got a subsequent case explaining the purpose of that form.

[01:21:07] Speaker 00:
It has to do with gathering statistics and things of that nature.

[01:21:11] Speaker 00:
It's a statistical device.

[01:21:13] Speaker 00:
Right.

[01:21:13] Speaker 00:
Why did you depart?

[01:21:14] Speaker 00:
Or why did you vary?

[01:21:16] Speaker 00:
And now we're going to try to track that nationwide.

[01:21:19] Speaker 00:
That's my understanding as well.

[01:21:22] Speaker 06:
But if that's true, if we ignore the form altogether, we still have the problem of

[01:21:27] Speaker 06:
Having to have something in writing, right?

[01:21:30] Speaker 00:
Well, I don't believe that the issue I think the form is something in writing and I don't believe that there's a requirement that that be a the be-all end-all of the reasons for in other words I don't think that the statement of reasons has to stand on its own not withstanding what was said in open court on the record I think you can read them both together and when you read them both together it's clear that

[01:21:56] Speaker 00:
the district court adequately explain its reasons for the vote.

[01:21:59] Speaker 08:
Isn't that the exact argument the government made in a Kigbee and we rejected it?

[01:22:03] Speaker 08:
That you can read them together and that can cure the written one?

[01:22:05] Speaker 08:
And we said, no, it's not a mere formality.

[01:22:08] Speaker 08:
That in fact, the written statement has to have its explanation.

[01:22:12] Speaker 08:
Anybody say that?

[01:22:14] Speaker 06:
I'll read you from Inray Sealed Case.

[01:22:16] Speaker 06:
However, the writing requirement is not a mere formality.

[01:22:20] Speaker 06:
The requirements that a sentencing judge provide a specific reason for departure and that he commit that reason to writing work together to ensure a sentence is well considered.

[01:22:29] Speaker 00:
Well, I believe in sealed case there wasn't one at all.

[01:22:32] Speaker 00:
That is true.

[01:22:33] Speaker 00:
So here we have the form.

[01:22:36] Speaker 04:
Are any judges right now doing more than the box checking in written, in writing?

[01:22:46] Speaker 04:
Some are, some aren't.

[01:22:47] Speaker 00:
I believe I have seen some where there's some language there, but I'm not sure.

[01:22:52] Speaker 04:
Some are when they're varying or departing at least.

[01:22:56] Speaker 06:
Well, there's a spot there.

[01:22:57] Speaker 06:
Explain or D, explain effects justifying a sentence outside the advisory guideline system, which in this case is blank.

[01:23:05] Speaker 00:
I mean, we agree that that was blank.

[01:23:09] Speaker 00:
We don't believe that that matters in light of the on-the-record, in light of reading the form, which does exist on light-sealed case.

[01:23:17] Speaker 08:
I beg me again.

[01:23:18] Speaker 00:
Excuse me, Your Honor.

[01:23:20] Speaker 08:
This combination argument is exactly what the government made in a GIGB, I don't know how to say it, I'm sorry, a GIGB on 108.7.

[01:23:28] Speaker 08:
I think we're bound by that, right?

[01:23:32] Speaker 00:
I confessed to not having a k-bay at my fingertips.

[01:23:34] Speaker 00:
I don't have any reason to doubt that.

[01:23:38] Speaker 00:
That would be our submission in this case.

[01:23:40] Speaker 00:
It was just one point, if I may, going back to the Matthews variance.

[01:23:49] Speaker 00:
Before I conclude, we did provide to the sentencing court in Matthews a grand jury transcript of a child witness who did not testify at trial.

[01:24:00] Speaker 00:
So the district court did have that.

[01:24:02] Speaker 00:
that aspect before it when it's sentence Matthews.

[01:24:05] Speaker 00:
I know there are some aspects that we didn't discuss.

[01:24:08] Speaker 00:
We would rest on our brief as to Appellant Boston.

[01:24:10] Speaker 00:
I know we didn't discuss the burglary instruction as to Appellant Brown.

[01:24:17] Speaker 00:
I'm happy to answer any further questions about any aspect of the case.

[01:24:20] Speaker 00:
Okay.

[01:24:21] Speaker 00:
Are there any further questions about any aspect of the case?

[01:24:24] Speaker 00:
Otherwise, we would ask that you dismiss Adana's appeal and otherwise affirm the judgments of the district court.

[01:24:30] Speaker 06:
Thank you.

[01:24:31] Speaker 06:
All of the counsel, I guess, none of them I expect have any time left.

[01:24:37] Speaker 06:
Is that right?

[01:24:38] Speaker 06:
So we'll give each of you one minute.

[01:24:42] Speaker 06:
If you come in the same order, if you have rebuttal.

[01:24:45] Speaker 10:
On behalf of Mr. Boston, I have nothing to reply to, so thank you.

[01:24:54] Speaker 07:
Okay, briefly, on behalf of Mr. Brown, I would just point out with respect to the government's argument on the PWID... Possession with Intent to Distribute.

[01:25:04] Speaker 06:
I'm sorry?

[01:25:05] Speaker 06:
PWID.

[01:25:06] Speaker 07:
PWID, yes.

[01:25:09] Speaker 07:
The government's position is because the indictment apparently specified the date of the offense.

[01:25:14] Speaker 07:
The jury must have convicted based on possession with intent to distribute the drugs in Clifton's apartment.

[01:25:21] Speaker 07:
But the fact of the matter is that the jury instructions did not include that date.

[01:25:26] Speaker 07:
And I think the gist of the government's argument may be that then Mr. Brown was convicted based on possibly charged an offense with which he was not charged, which is even more problematic.

[01:25:39] Speaker 07:
And on the prior UF conviction being erroneously admitted, again, we reiterate the case law that the government has relied on does not involve situations where the trial judge was specifically alerted to the problem of admitting the information that was provided to the jury.

[01:25:58] Speaker 07:
And when the trial judge is informed of that, he has an obligation to step in and correct that here.

[01:26:03] Speaker 08:
I just want to let you and the government both know that the judgment in Mr. Brown's case for purposes of count six refers to the March 13th indictment, which in fact is a kidnapping charge of which he was never convicted.

[01:26:16] Speaker 08:
So there's just an error in the judgment.

[01:26:18] Speaker 08:
I think it needs to refer to the March 16th, not March 13th indictment to have the right kind of conviction.

[01:26:25] Speaker 08:
Thank you.

[01:26:33] Speaker 02:
As briefly as I can, first, some housekeeping.

[01:26:36] Speaker 02:
I misspoke when I referred to the Rouse case as saying the sentence need be imposed under fair procedures.

[01:26:44] Speaker 02:
That was the Guilin, or we've disagreed as to how to pronounce it, Guian or Guilin case that said that the objection is only waived if the sentence had been imposed under fair procedures, which we argue here were not.

[01:27:01] Speaker 02:
I would also

[01:27:03] Speaker 02:
take issue with the government's argument under Rouse.

[01:27:06] Speaker 02:
The waiver in Rouse was because no objection had been made at all, not that it hadn't been made under the appropriate guideline by specific guideline paragraph.

[01:27:22] Speaker 02:
I would say, Judge Kavanagh, to your argument that a reason can't be given unless the issue was raised.

[01:27:30] Speaker 02:
The issue was raised here, and I would just point out this judge did give a reason for giving the sentence that doubled.

[01:27:37] Speaker 02:
It was a false reason.

[01:27:39] Speaker 02:
It was an incorrect reason.

[01:27:43] Speaker 02:
His reason, which he

[01:27:45] Speaker 02:
says somewhat reflexively in most cases was separate crime, separate time, but it ignored the fact that he had already imposed a separate time for that separate crime and he was now doubling up on the separate time for the separate crime.

[01:28:01] Speaker 02:
So to the extent

[01:28:02] Speaker 02:
that a reason was given here for a sentence that went beyond that which the guidelines would have otherwise properly contemplated.

[01:28:11] Speaker 02:
That reason was an incorrect reason.

[01:28:15] Speaker 02:
And finally, to the government's point that the defendant was put on notice that there might be a consecutive sentence.

[01:28:23] Speaker 02:
conversation with the judge on that day was completely premature, I should say, given this judge is somewhat immature, but premature, in that the record had not yet been made.

[01:28:38] Speaker 02:
There hadn't been a trial.

[01:28:39] Speaker 02:
There hadn't been any review by the probation department.

[01:28:45] Speaker 02:
In fact, in this case, there were various enhancements and adjustments that were examined and rejected.

[01:28:53] Speaker 02:
And they're completely overtaken by the judge's later discussion of the fact that he understood there would be an appeal here if he went down the road that he was proposing to go.

[01:29:05] Speaker 02:
I promised the reference, the reference of course is in volume two, and I would encourage the court to examine from

[01:29:12] Speaker 02:
page 477 through page 481.

[01:29:15] Speaker 02:
You note there's the next page which I hoped would have been included and I guess because I didn't cite to the next page I might later move to supplement the record but it goes on where the judge says I will go with it.

[01:29:30] Speaker 02:
You can argue that it's

[01:29:33] Speaker 02:
It is 87 to 108 is what he says on the page that follows in that status hearing that was held for the express purpose pre-sentencing to understand how the landscape had changed with respect to a trial that now was in the record and facts that were now known.

[01:29:53] Speaker 02:
and how those facts would then be addressed within the guidelines to give the defendant what he had bargained for.

[01:30:01] Speaker 02:
There was adjustments made to the amount of drugs.

[01:30:04] Speaker 02:
There was an adjustment made to the use of children.

[01:30:06] Speaker 02:
There were adjustments made based on the probation department's findings, and the facts has developed at trial.

[01:30:14] Speaker 02:
And the fact that well before the plea had even been entered, this judge said,

[01:30:20] Speaker 02:
which he always says, I'm going to give you the most time I can give you.

[01:30:24] Speaker 02:
I'll be consecutive.

[01:30:25] Speaker 02:
If he had said, and I'll go outside the guidelines and I'll go above the statute, that would not necessarily have meant that this defendant understood that he had waived his right to appeal this sentence if it went beyond that which they then discussed at the colloquy and that which they then discussed

[01:30:43] Speaker 02:
at the pretty much the close of the record just prior to sentencing at that status hearing, and then at sentencing.

[01:30:50] Speaker 04:
How should we think about the written plea agreement in this context, which refers to the within a guideline sentence being waived?

[01:31:02] Speaker 02:
Well, I take Chief Judge Garland's point that

[01:31:06] Speaker 02:
The guidelines do include also the reference to consecutive versus concurrent.

[01:31:12] Speaker 02:
That's also a guideline.

[01:31:13] Speaker 02:
So that when the defendant and defendants, of course, don't understand the paragraph references to the guidelines, they just understand the number.

[01:31:22] Speaker 02:
There's a number at the end of all of this that they get.

[01:31:25] Speaker 02:
And this is where I am.

[01:31:26] Speaker 02:
I'm 87 to 108.

[01:31:28] Speaker 06:
But the plea agreement doesn't say you can appeal.

[01:31:34] Speaker 06:
for key part about these plea agreements.

[01:31:35] Speaker 06:
It doesn't say you can appeal if it goes outside the guidelines.

[01:31:38] Speaker 06:
It says you can appeal if it goes outside what the judge determines to be the guidelines.

[01:31:43] Speaker 06:
That is, if the judge intentionally is varying, not if the judge makes a mistake about the guidelines.

[01:31:50] Speaker 06:
Aren't I right in describing the plea agreement?

[01:31:52] Speaker 02:
But he didn't say he was varying from the guidelines.

[01:31:55] Speaker 02:
And he didn't give any reasons.

[01:31:56] Speaker 02:
And there's also the James Brown case.

[01:31:59] Speaker 04:
But that's the point, I think, which is he didn't go

[01:32:03] Speaker 04:
outside the guidelines.

[01:32:04] Speaker 04:
Once, as Chief Judge Garland says, he determined the range, in this sense, was within that range, within the 87 to 108.

[01:32:11] Speaker 02:
Well, for one, he did erroneously determine the range, given that he didn't take into account consecutive versus concurrent, but... I see what you're doing, and that's a... I would make that argument, too, that that folds into what the guidelines calculation is, you're saying?

[01:32:28] Speaker 04:
The consecutive concurrent, yeah.

[01:32:31] Speaker 02:
Wait, I'd like to come back to your, except the plea agreement.

[01:32:36] Speaker 02:
I think the plea agreement has to be taken together with the entirety of the record.

[01:32:40] Speaker 02:
And the plea agreement in many ways is,

[01:32:46] Speaker 02:
I'm not going actually to say which is a higher form or a lower form, but I think the colloquy is certainly on a level with a written plea agreement to the extent that it even develops the dialogue with the defendant of his understanding of what it is he's pleading to and what the consequences are.

[01:33:02] Speaker 02:
And so the colloquy is not for nothing.

[01:33:09] Speaker 02:
And the procedural argument, which we haven't actually addressed today, but the procedural argument, too, is that if he was to give a sentence that was beyond the range of 108, even if it was by workaround, he should have given a reason that was a true reason and not something based on a mistake, separate crime, separate time, when he had already imposed separate time, for what was unquestionably on this record a separate crime.

[01:33:35] Speaker 02:
It wasn't within the time frame.

[01:33:37] Speaker 02:
It wasn't the same kind of judge – drug, I'm sorry – it wasn't the same geographic crime.

[01:33:44] Speaker 02:
It was not the same crime.

[01:33:48] Speaker 02:
So to the extent he wanted to give separate time for it, he had already done so within the context of this plea agreement.

[01:34:04] Speaker 05:
I used my term sloppily when I said departure versus variance.

[01:34:13] Speaker 05:
This is clearly a variance, not a departure.

[01:34:16] Speaker 05:
I was focusing on the substance.

[01:34:18] Speaker 06:
You've been doing this a long time, and in the old days they were departures.

[01:34:22] Speaker 05:
Thank you for giving me an excuse.

[01:34:24] Speaker 05:
I appreciate that.

[01:34:26] Speaker 05:
The other part, and of course age is always a fact, I hope you know that.

[01:34:31] Speaker 05:
I wanted to address, Judge Cavanaugh, you raised the point about attempt being within the application note of 4B1.2, and I'd ask the Court to look at, on page 10 of our brief footnote 6, where we cite to a Seventh Circuit case that says, attempt is only enforceable in the context of interpreting the residual clause.

[01:34:50] Speaker 05:
Which raises another interesting point here, because in this case, no one ever argued the residual clause, because at the time this case arose, and even at the time the appellant filed their initial brief, it was pre-heckels.

[01:35:02] Speaker 05:
And residual, at that point, all of us were under the mistaken assumption that based on, I think it's the Johnson case that said under ACCA, the residual clause was avoided for vagueness, that that same interpretation would apply here.

[01:35:18] Speaker 05:
The government places great reliance on the residual clause as justifying or as a basis from which the court could have varied.

[01:35:27] Speaker 06:
I'm sorry, what footnote of yours was that?

[01:35:29] Speaker 05:
It's on page 10 of our initial brief footnote 6.

[01:35:34] Speaker 08:
Footnote 9.

[01:35:36] Speaker 05:
And it cites to, I'm sorry?

[01:35:37] Speaker 08:
Footnote nine on page 10, the Seventh Circuit case, is that what you said?

[01:35:42] Speaker 05:
No, it's on page 10 of our initial brief.

[01:35:43] Speaker 05:
It's footnote nine.

[01:35:44] Speaker 05:
Yeah.

[01:35:44] Speaker 05:
Yeah.

[01:35:45] Speaker 05:
You're right.

[01:35:46] Speaker 05:
I read it wrong.

[01:35:46] Speaker 05:
You're right.

[01:35:47] Speaker 05:
Small font.

[01:35:48] Speaker 05:
It's footnote nine.

[01:35:50] Speaker 05:
Thank you.

[01:35:51] Speaker 05:
But it cites to the Rawlins case from the Seventh Circuit, which says it's only applicable in the residual clause.

[01:35:56] Speaker 05:
And of course, the residual clause didn't apply in this case.

[01:36:00] Speaker 05:
At the time, nobody argued it.

[01:36:02] Speaker 05:
And if the government intends to say that's where

[01:36:06] Speaker 05:
the judge could have granted the variance, then I would suggest this case needs to be remanded for consideration of that.

[01:36:11] Speaker 05:
Because when this case was decided, everybody believed the residual clause was already voided for vagueness because it had been done in the Acre case.

[01:36:18] Speaker 05:
And then, of course, while this case was pending, after our initial brief was filed, I think it was the Heckles case came out that said, no, the residual clause is not void for vagueness in the context we have here of the sentencing guidelines.

[01:36:31] Speaker 06:
Was this called to the judges, the district judges' attention, or is this another plain error problem?

[01:36:38] Speaker 05:
Well, it was not called to the judges' attention because of the time this case was decided.

[01:36:41] Speaker 05:
Nobody thought the residual clause applied.

[01:36:44] Speaker 08:
Nobody ever argued.

[01:36:44] Speaker 08:
The residual clause, though, wasn't asserted by the government before the district court.

[01:36:46] Speaker 05:
I'm sorry.

[01:36:47] Speaker 05:
It was never asserted at the sentencing level.

[01:36:48] Speaker 06:
No, no, I'm sorry.

[01:36:49] Speaker 06:
I understand.

[01:36:50] Speaker 06:
I haven't read the case, the Rollins case.

[01:36:52] Speaker 06:
I take this to mean that an attempt

[01:36:57] Speaker 06:
doesn't apply if the residual clause isn't the way you're getting there.

[01:37:02] Speaker 05:
Exactly, exactly.

[01:37:03] Speaker 06:
And you just told me that the residual clause was never the way.

[01:37:06] Speaker 05:
No, nobody ever relied on the residual clause.

[01:37:09] Speaker 06:
That would have made it very relevant whether attempt applied to a crime of violence not as a residual clause, right?

[01:37:16] Speaker 05:
Right, well, attempts could not be applied to a crime of violence.

[01:37:18] Speaker 06:
And was that said to the district court?

[01:37:22] Speaker 06:
Did somebody raise that point?

[01:37:24] Speaker 05:
No, because nobody, because

[01:37:27] Speaker 05:
it was a substantive crime of attempt that was under consideration, not whether or not the residual clause applied.

[01:37:34] Speaker 05:
At the time this case was argued, nobody thought or nobody argued the residual clause applied because we were all under the impression based on, I think it was a Johnson case that said under ACCA, residual is void for vagueness.

[01:37:45] Speaker 05:
And so nobody argued the residual clause.

[01:37:47] Speaker 05:
Nobody considered the residual clause.

[01:37:48] Speaker 05:
The judge didn't rely on the residual clause.

[01:37:51] Speaker 05:
Now, the government in its brief is taking advantage, understandably, of the heckles decision

[01:37:55] Speaker 05:
The one that said residual cause is not void for vagueness in the context of sentencing guideline.

[01:38:05] Speaker 05:
If this case were remanded, if they want to rely on this, I would suggest the court would have to remand this for consideration to say, is the residual clause the basis under which the court finds a crime of violence?

[01:38:16] Speaker 05:
Which then raises another interesting academic point, because unless I'm mistaken, I think the residual clause has been removed from the current issue of the sentencing guidelines on 4B1.2.

[01:38:24] Speaker 05:
I'm not 100% sure on that.

[01:38:26] Speaker 05:
But the point I was trying to address was the point that you made, that attempt could not have been the inchoate attempt

[01:38:33] Speaker 05:
footnote could not have been the basis and could not have been considered under crime of violence, categorical approach.

[01:38:40] Speaker 05:
And the only other thing I wanted to address was your point, Judge Millard, about the community.

[01:38:45] Speaker 05:
There was a four-level increase because of the other criminal conduct in this case.

[01:38:54] Speaker 05:
Basically, the judge said, I increased for four levels because the felony position of the gun was used in the context of another felony.

[01:39:01] Speaker 05:
I don't think he made a specific finding, but implicit in his finding, I think, was that it wasn't used in connection with drug dealing.

[01:39:07] Speaker 05:
And so to the extent danger to the community needed to be addressed, it was from that, as well as the other enhancement, which is redundant with the multiple guns.

[01:39:19] Speaker 04:
What about the children?

[01:39:21] Speaker 04:
Children?

[01:39:22] Speaker 04:
There was no enhancement related to effect on children?

[01:39:24] Speaker 05:
No, there was not.

[01:39:26] Speaker 05:
And I don't know if one was ever requested.

[01:39:30] Speaker 05:
I mean, could the Judge Sue Espante say, well, there were kids in this neighborhood, and that's why I'm going to grant a variance on remand?

[01:39:37] Speaker 05:
If that's what he wanted to, I'm sure he could.

[01:39:39] Speaker 05:
I don't know if that would... I don't know if I would oppose it, but I'm sure that might be a basis.

[01:39:46] Speaker 05:
Okay.

[01:39:47] Speaker 06:
Thank you.

[01:39:47] Speaker 06:
Further questions?

[01:39:48] Speaker 06:
All right.

[01:39:49] Speaker 06:
Ms.

[01:39:49] Speaker 06:
Davis, Ms.

[01:39:50] Speaker 06:
Pembroke, Ms.

[01:39:52] Speaker 06:
Gattay, and Mr. Zucker, all of you were appointed by the court, and we are very grateful for your assistance.

[01:39:57] Speaker 06:
Thank you.