[00:00:10] Speaker 00:
also known as Xavier Wilkins, also known as Chosey Wilkins, appellate.

[00:00:16] Speaker 00:
Mr. Smith for the appellate, Ms.

[00:00:17] Speaker 00:
Carroll for the appellate.

[00:00:24] Speaker 03:
May it please the court, my name is Greg Smith and I'm the appointed counsel for Dustin Wilkins in this appeal.

[00:00:30] Speaker 03:
I ask you to remand this case for further proceedings and especially a prejudice determination of whether new sentencing is warranted under 2255 with a reevaluation of the restitution amounts.

[00:00:43] Speaker 03:
Just as importantly,

[00:00:45] Speaker 03:
I also want to make a special request, that you decide this appeal quickly.

[00:00:49] Speaker 03:
Please don't wait to issue a decision until your formal opinion is written, because if your decision is delayed, any hopes we have for relief will surely become moot, since my client's sentence is scheduled to expire August 20, and with good times, it may even be sooner.

[00:01:06] Speaker 03:
In my client's 2255 petitions, he asserted ineffective resistance.

[00:01:09] Speaker 05:
Do you know what time he's scheduled for release now?

[00:01:11] Speaker 03:
I'm sorry?

[00:01:11] Speaker 05:
Do you have something more concrete on time yet or not?

[00:01:14] Speaker 03:
Nothing more concrete than that.

[00:01:15] Speaker 03:
I could perhaps supplement to the court, but that is what his scheduled release date is, August 20th.

[00:01:21] Speaker 03:
And I think with good time, it may even be sooner than that.

[00:01:25] Speaker 03:
So we do request a prompt decision if possible.

[00:01:28] Speaker 03:
In my client's 2255 petition, he asserted ineffective assistance and challenged both his plea and his sentence.

[00:01:34] Speaker 03:
I want to focus today on our key point.

[00:01:36] Speaker 03:
Mr. Wilkins deserves a new sentence in hearing.

[00:01:38] Speaker 03:
His best argument for a below-guideline sentence, double punishment, was never raised by his lawyers, and it should have been, as his own first lawyer admitted, Miles planned to raise it.

[00:01:50] Speaker 03:
But Mr. Miles was replaced before he did, and then Mr. Wilkins' second lawyer, Mr. Carroll, then never raised it.

[00:01:56] Speaker 03:
So the bottom line is, Judge Bates was never told that the 33-month sentence he was giving equated to a 64-month sentence, far above what the guidelines call for when this scheme is considered as a whole.

[00:02:09] Speaker 02:
The plea agreement prevented

[00:02:12] Speaker 02:
that argument from being raised in its most natural and forceful and direct way, which was under 5K 2.23.

[00:02:22] Speaker 02:
Yes, Your Honor.

[00:02:23] Speaker 02:
Right?

[00:02:24] Speaker 02:
That's true.

[00:02:25] Speaker 02:
So all that was left at that point would have been a very amorphous, open-ended argument about what sentence is sufficient but not greater than necessary to achieve the purposes of sentencing.

[00:02:42] Speaker 02:
Under 3553.

[00:02:46] Speaker 03:
Well, two points, Your Honor.

[00:02:48] Speaker 03:
First is that we also believe that a carve-out should have been sought.

[00:02:52] Speaker 02:
I understand, but you do.

[00:02:53] Speaker 03:
To allow for the departure, which you're correct, is more formalized in the guidelines.

[00:02:59] Speaker 03:
But the statute allows for a variance as well.

[00:03:01] Speaker 03:
And look, at this point, we're not talking about a 31-month reduction.

[00:03:07] Speaker 03:
We're down to, what, six months before he gets out or less?

[00:03:10] Speaker 03:
We're just – you're correct.

[00:03:13] Speaker 03:
I mean, I'm not sure I agree with the concept of amorphous, but it certainly doesn't necessarily equate, like perhaps the departure would, to a 31-month reduction.

[00:03:25] Speaker 03:
But some below-guidelines Senates should have been sought and was never sought.

[00:03:30] Speaker 02:
I mean, I guess what I'm suggesting is to the extent your claim has force, it may be more in taking the 5K argument off the table than in not making the water down 3553 argument.

[00:03:49] Speaker 03:
Well, we have argued both, and I take your point that that one argument may be stronger than another.

[00:03:55] Speaker 03:
But the bottom line is the judge never got the argument.

[00:03:58] Speaker 03:
And it was the best argument that should have been made.

[00:04:01] Speaker 03:
And as a judge and you as a court, you ought to want these arguments to be brought to the court.

[00:04:07] Speaker 03:
The court's statutory charge is to impose a sentence sufficient but not greater than necessary.

[00:04:15] Speaker 03:
If a sentence is greater than necessary,

[00:04:19] Speaker 03:
The court ought to be told all the reasons why, and that didn't occur here.

[00:04:23] Speaker 05:
It wasn't even just to back it up before the sentencing hearing.

[00:04:26] Speaker 05:
The agreement specifically allows for the criminal history

[00:04:34] Speaker 05:
factor to change based on subsequent information between the signing of the plea and the sentencing hearing, and in particular obviously allows for a reduction in the criminal history guidelines if the probation office determines that there are fewer points than were estimated in the plea.

[00:04:55] Speaker 05:
And my understanding here is that Mr. Carroll didn't press this issue with the probation office.

[00:05:03] Speaker 05:
Where he said they just sort of went along.

[00:05:04] Speaker 05:
So is the, you talk about how he just sort of phoned, maybe literally just phoned it in when it came to dealing with the probation office.

[00:05:15] Speaker 05:
But there's nothing in the plea agreement that would have prohibited him from persuading the probation office that his criminal history category should have been lower, is there?

[00:05:24] Speaker 03:
No, Your Honor.

[00:05:25] Speaker 05:
It specifically allows for that, correct?

[00:05:27] Speaker 03:
It could not be, I think that the plea agreement said that it couldn't be challenged once the determination was made, but he could have raised it with probation, I think that may be true.

[00:05:41] Speaker 05:
Right, and they were certainly entitled to come in with a lower criminal history.

[00:05:44] Speaker 03:
Correct.

[00:05:45] Speaker 05:
And Mr. Carroll spoke to probation office here, but didn't

[00:05:49] Speaker 05:
Press this point with them at all is my understanding, right?

[00:05:52] Speaker 03:
He made clear he wasn't even sure he discussed 5K 2.23 with the probation office.

[00:05:59] Speaker 05:
So is that an aspect of the ineffective assistant assistance or you just focused on the sentencing hearing?

[00:06:03] Speaker 05:
I was your brief sounded like it was talking about.

[00:06:05] Speaker 05:
He was not responsible and how he dealt with probation office, but I just want to be clear on that.

[00:06:11] Speaker 03:
I think that that's a fair point, and I think that's something he should have done, Your Honor, yes.

[00:06:19] Speaker 01:
Wait, you think which is a fair point, the part about what's in your brief or the part about what should have been done?

[00:06:25] Speaker 03:
I'm sorry, say again?

[00:06:26] Speaker 01:
You said you think that's a fair point, and were you talking about the point about what was in your brief or the point about what should have been done?

[00:06:33] Speaker 03:
I think both, Your Honor.

[00:06:35] Speaker 03:
I think we argued that Mr. Carroll didn't press the issues he should have pressed sufficiently, and I think that's what we raised in our brief, and I think that's what I'm arguing.

[00:06:46] Speaker 03:
Including before the probation office.

[00:06:49] Speaker 03:
I think we talked about his interactions with the probation office in the brief.

[00:06:52] Speaker 03:
Yes, Your Honor.

[00:06:55] Speaker 02:
The argument that you say should have been made

[00:06:59] Speaker 02:
has a real two-edged sword to it.

[00:07:04] Speaker 02:
On your side is the point that he's already served a bunch of time for a related offense.

[00:07:13] Speaker 02:
But on the other hand, the government could easily spin the same points to emphasize that the defendant had a pattern of

[00:07:23] Speaker 02:
a lot of different offenses with a lot of different victims rather than just one larger fraud.

[00:07:29] Speaker 02:
And on top of that, that the defendant went back to his criminal ways right after he had the strong medicine of a two and a half year sentence.

[00:07:41] Speaker 02:
So that seems like the kind of judgment where reasonable lawyers might come out either way.

[00:07:50] Speaker 03:
Well, Your Honor, I hear what you're saying, but that's not what Mr. Carroll said.

[00:07:59] Speaker 03:
He said that he never researched 5K 2.23, never talked to the probation office about it, never talked to his client about it.

[00:08:08] Speaker 03:
If this decision is made after the client signs off on it, maybe it's a different issue.

[00:08:12] Speaker 03:
But the problem that I see here

[00:08:14] Speaker 03:
is that Judge Bates never was, this was never presented to Judge Bates as a below guidelines issue.

[00:08:22] Speaker 03:
The prosecutor raised exactly what you said at the sentencing in terms of where within the range and he came down saying it

[00:08:30] Speaker 03:
it's more of a mitigator than an aggravator.

[00:08:34] Speaker 03:
He said that's why, you know, you can give the low end judge.

[00:08:38] Speaker 03:
So I, you know, and he expressed what you're saying, which is it can cut both ways.

[00:08:44] Speaker 03:
But the bottom line

[00:08:46] Speaker 03:
The serious bottom line is that the judge was never told this is a below guidelines issue.

[00:08:51] Speaker 03:
He was only told by the prosecutor, never by the defense lawyer, that it was a within guidelines issue.

[00:08:57] Speaker 03:
And it wasn't.

[00:08:59] Speaker 03:
5K23, 2.23 says it's a below guidelines issue.

[00:09:03] Speaker 03:
And it should be.

[00:09:04] Speaker 03:
And the bottom line is this judge didn't know that.

[00:09:07] Speaker 03:
And that's, I think, why Judge Bates never

[00:09:11] Speaker 03:
found there's no prejudice here.

[00:09:13] Speaker 03:
The government asked him to find that below.

[00:09:16] Speaker 03:
Look, if we go back on remand and he evaluates prejudice and says, you know, this wouldn't have made a difference to me, no prejudice, then fine, okay.

[00:09:25] Speaker 03:
But Judge Bates ought to be able to see that as a below guidelines issue, which he never did because the defense lawyer never brought it to him.

[00:09:35] Speaker 03:
And he ought to be able, if he wants to, if he thinks it's justified, to be able to count it as a mitigator, to give a below-guidelines sentence, and basically to give the sentence he would have got given if he had heard it, if he had known it at the original sentencing.

[00:09:51] Speaker 03:
That's all we're asking.

[00:09:52] Speaker 03:
That you go back to him and that he be able, if he believes it's prejudicial, to be able to say, you know, if I'd known this then I would have given this sentence.

[00:10:02] Speaker 03:
And so I, now that I know it, this is the sentence I'm going to give.

[00:10:08] Speaker 02:
Just one more.

[00:10:13] Speaker 02:
Suppose I conclude that just as a matter of substantive litigation tactics, the decision to, in counsel's words, argue with a light touch

[00:10:28] Speaker 02:
was a reasonable one, with the fact that he didn't do independent research and he didn't talk to the client and such, would that be a basis for finding deficiency under prong loan of Strickland?

[00:10:45] Speaker 02:
I thought those might be relevant considerations, but it's ultimately an objective standard, and if what the lawyer does is within the bounds of reasonableness,

[00:10:54] Speaker 02:
We don't second-guess.

[00:10:55] Speaker 03:
I think it does because we're talking about the assistance of counsel.

[00:11:00] Speaker 03:
It's supposed to be the client's call, not the attorney's call.

[00:11:03] Speaker 03:
And what happened here is he decided for himself.

[00:11:06] Speaker 03:
He never raised it with his client.

[00:11:08] Speaker 03:
The client never signed off.

[00:11:09] Speaker 03:
And there's a reason for that, especially when you talk about here, the best issue he had got abandoned.

[00:11:17] Speaker 03:
and without his knowledge or even any discussion about it.

[00:11:21] Speaker 03:
So yes, I think, I don't think that the lawyer in that case can hide the best argument under Bushville just because he happens to personally believe that this client's already getting a good sentence.

[00:11:32] Speaker 01:
Can I ask you a question about something that is not apparently the best issue that he had, but just to clarification, which is your argument as to restitution, it's framed in the opening brief, I thought largely as a claim about ineffective assistance to counsel.

[00:11:46] Speaker 01:
But are you also making a straight up claim on 2255, which I'm not, I just don't know whether there's the cause to do, there's the leeway to do that, but you're making the argument straight up on 2255 that the error and alleged error with respect to restitution itself is something that can be remedied at this stage?

[00:12:06] Speaker 03:
I think it's both, but yes, we are raising a challenge to the restitution, separate and apart from ineffectiveness, because I think it's just factually wrong.

[00:12:16] Speaker 03:
I think it, as, based on this court's oversight, you ought not to have a clearly wrong decision on restitution, because it hurts the other victims.

[00:12:27] Speaker 01:
They don't get as much under the- But it does- Sorry.

[00:12:30] Speaker 01:
And that's something that you think can come up on 2255?

[00:12:34] Speaker 03:
We've raised it, I take your point, but I also do think it's ineffectiveness because none of the lawyers focus on

[00:12:43] Speaker 03:
on pieces of paper saying that this was not a loss incurred.

[00:12:47] Speaker 03:
So I think it's also ineffectiveness, clearly ineffectiveness.

[00:12:51] Speaker 03:
I think there was deficient performance in not picking up on statements saying a victim got paid.

[00:12:58] Speaker 03:
I mean, that's a straight black and white ineffectiveness deficiency, as I can see.

[00:13:04] Speaker 03:
You just didn't pick up on the fact that the victim got paid, and then you allowed restitution to take.

[00:13:09] Speaker 03:
So I think it's deficient, and I have no doubt on the prejudice prong.

[00:13:13] Speaker 03:
Judge Bates, if he'd been told that, would have changed it.

[00:13:16] Speaker 03:
Again, he certainly didn't find that he wouldn't have.

[00:13:19] Speaker 03:
He never addressed the issue at all, so it ought to be romantic.

[00:13:22] Speaker 05:
I have one other question.

[00:13:23] Speaker 05:
If I missed this in the briefs, I apologize, but there's lots of talk about what would have, you know, the consequence of choosing between pleading and going to trial, but I didn't see an explanation as to what his sentence he was facing if he had gone to trial and just assumed he'd been convicted on all counts.

[00:13:43] Speaker 05:
Don't we need to know that?

[00:13:45] Speaker 03:
That issue, I don't know that was specified below, Your Honor.

[00:13:48] Speaker 03:
I mean, he testified he thought he'd get the statutory maximum.

[00:13:51] Speaker 03:
The court below found that was not a credible, I mean, they did not credit his testimony.

[00:14:00] Speaker 03:
Judge Bates did not find Mr. Wilkins to be a credible witness.

[00:14:03] Speaker 05:
No, no, I'm just asking, did the lawyers ever figure out what sentence he was facing if he rejected the plea?

[00:14:10] Speaker 05:
Usually, that's a sort of comparison that we know between the plea agreement and the... I don't believe there's anything in the record.

[00:14:15] Speaker 03:
I mean, I suppose there could have been some adjustments on the... I don't think that issue was ever addressed below, Your Honor.

[00:14:24] Speaker 03:
If I might reserve, thank you.

[00:14:25] Speaker 03:
Thank you, Counsel.

[00:14:30] Speaker 05:
Good morning, Your Honors.

[00:14:31] Speaker 05:
May it please the Court.

[00:14:32] Speaker 05:
Can you tell me what he was facing if he'd gone to trial and been convicted?

[00:14:35] Speaker 05:
Every case I've ever had on this, they go, well, he was given this plea of x months, and had he gone to trial, he'd have faced a lot more.

[00:14:44] Speaker 04:
That issue was not addressed in the trial court and district court, and it would be

[00:14:52] Speaker 04:
a guess on my part at this stage.

[00:14:54] Speaker 04:
I could go back and I can try and reevaluate it, but that was not before Judge Bates below.

[00:14:59] Speaker 04:
He would have received a substantially higher sentence in the sense that he would have received any credit for the

[00:15:08] Speaker 04:
acceptance or early acceptance of responsibility.

[00:15:10] Speaker 05:
He wouldn't have received the hope of the sentencing benefit that he wanted to receive as a result of this particular... Presumably they would have knocked out 50% of the restitution and presumably under this theory at least he would have gotten the Henrico conviction wrapped in as concurrent time.

[00:15:28] Speaker 05:
So that's why

[00:15:29] Speaker 05:
It's a little hard.

[00:15:30] Speaker 05:
I just feel like I don't know how to evaluate what a choice would have been without knowing what a reasonable choice would have been without knowing what the alternative he was facing.

[00:15:42] Speaker 04:
Well, the only testimony from Mr. Miles was that if he did not accept this plea agreement, that Mr. Last intended to supersede the indictment to reach the higher threshold level.

[00:15:54] Speaker 04:
All the only evidence that we have is that the appellant would have faced a greater offense level if he was to include all the additional conduct, and that didn't include potentially outside this jurisdiction conduct.

[00:16:07] Speaker 02:
But we do know that the plea gave up this extremely powerful benefit, which is the possibility of a 30-month credit for time served.

[00:16:18] Speaker 04:
Well, we do not know that, Your Honor.

[00:16:20] Speaker 04:
In fact, I think, I believe it's as a matter of law.

[00:16:22] Speaker 02:
Well, if appellant- But if he had gone to trial, let's play out Judge Millett's question, which I was wondering about as well.

[00:16:32] Speaker 02:
If he had gone to trial, he would have had an overwhelmingly strong argument that the Virginia conviction was for relevant conduct

[00:16:44] Speaker 02:
And that would have knocked his criminal history down, category down from five to three.

[00:16:49] Speaker 02:
And it would have made him eligible to argue this 5K point that I've already served 30 months for relevant conduct.

[00:16:59] Speaker 02:
I should get a credit.

[00:17:01] Speaker 04:
Those arguments were not pressed in the district court.

[00:17:04] Speaker 04:
And it was appellant's burden to frame that argument for Judge Bates.

[00:17:08] Speaker 04:
And so we were in somewhat of a disadvantage.

[00:17:10] Speaker 02:
Well, they did say

[00:17:12] Speaker 02:
They did say that their best argument was the time served for the Virginia conviction, and they did frame it both in terms of the sentencing and the plea, giving up the 5K departure argument.

[00:17:28] Speaker 04:
But I believe that, in fact, even counsel in some of his statements to the court and in his pleadings recognized that appellate wanted to plead guilty.

[00:17:39] Speaker 04:
Mr. Miles testified Appellant wanted to plead guilty.

[00:17:42] Speaker 04:
He believed that he would have received the best benefit by taking this particular plea offer.

[00:17:47] Speaker 02:
But suppose we conclude that this was just objectively beyond the pale.

[00:17:55] Speaker 02:
The plea deal.

[00:17:57] Speaker 02:
I'm sorry?

[00:18:00] Speaker 02:
We can still assess.

[00:18:01] Speaker 02:
The lawyer's advice was take the deal.

[00:18:04] Speaker 02:
This is a good deal.

[00:18:05] Speaker 02:
It seems to me it was likely a terrible deal for him.

[00:18:10] Speaker 02:
When he pleads, he ends up at 33 to 41 months with the plea, right?

[00:18:17] Speaker 02:
He gets category five

[00:18:22] Speaker 02:
on the assumption that the Virginia conviction is not relevant conduct, which I think it probably was, he gets, as you say, he gets three points.

[00:18:35] Speaker 02:
If you adjust him back to category three and adjust for the three points,

[00:18:41] Speaker 02:
for acceptance of responsibility, he ends up at 30 to 37, and he's able to argue for a 30-month credit for time served.

[00:18:52] Speaker 04:
I don't follow the criminal history category calculation, because just based on the timing, the Virginia conviction occurred May at .10.

[00:19:01] Speaker 02:
If the Virginia conviction were relevant conduct, it wouldn't have gone into the calculation of his criminal history.

[00:19:11] Speaker 04:
Your Honor's question presupposes a set of facts that was not presented to Judge Bates and was not elaborated in the trial court.

[00:19:20] Speaker 04:
The difficulty here was that... I don't understand what you mean by wasn't presented.

[00:19:26] Speaker 05:
This is exactly their argument, is that you can't say he was told it was a good plea when the advice was based on the lawyers not having done their homework.

[00:19:37] Speaker 04:
The only issue before Judge Bates was this issue of the statute of limitations defense in terms of the ineffectiveness.

[00:19:45] Speaker 04:
Appellant did not challenge Miles' advice with respect to taking the plea or not taking the plea, because appellant agreed that he committed these crimes and agreed that he, and based on both counsel's evaluation, the evidence was overwhelming and he would have been found guilty at trial.

[00:20:06] Speaker 02:
Right.

[00:20:07] Speaker 02:
So the whole calculation is managing the sentence.

[00:20:11] Speaker 04:
Yes.

[00:20:12] Speaker 02:
And by taking the plea, he gives up his ability to present a seemingly compelling argument that my sentence should be knocked down by 30 months because I've served time on this related conviction.

[00:20:28] Speaker 04:
Appellant's argument was that, not that he wouldn't have pled guilty, but that Mr. Miles should have requested a carve-out for 5K.

[00:20:36] Speaker 04:
There's no evidence in the record that that was even a possibility.

[00:20:40] Speaker 02:
Why?

[00:20:43] Speaker 02:
There was testimony, I think, credited by the court that the government's offer was take or leave.

[00:20:49] Speaker 02:
So I'll give you that and frame it in terms of what would have happened if, not getting the carve-out, he had gone to trial.

[00:21:00] Speaker 02:
and argued that the Virginia conviction is relevant conduct.

[00:21:04] Speaker 02:
It shouldn't be counted for criminal history, and he should get a 30-month credit.

[00:21:09] Speaker 04:
But that's looking in isolation with just respect to the Virginia conduct.

[00:21:13] Speaker 04:
There was a testimony.

[00:21:14] Speaker 02:
It's assessing where he ended up under the plea versus where he would have ended up had he gone to trial, taken a certain guilty verdict, and tried to argue for a lower sentence.

[00:21:27] Speaker 04:
By arguing relevant conduct on the other conviction.

[00:21:31] Speaker 04:
If we open up the relevant conduct to the Virginia conviction, we also open up relevant conduct to every other jurisdiction where appellant committed fraud.

[00:21:39] Speaker 04:
Appellant had been committing the same type of fraud since 1999.

[00:21:43] Speaker 04:
by that token, then if all of the relevant conduct would have come in, and we don't have that evidence in the record.

[00:21:51] Speaker 02:
He was at about 106,000.

[00:21:53] Speaker 02:
The Virginia conviction would have maybe put him at 107,000.

[00:22:00] Speaker 04:
He would have been over the 120,000 threshold if AUSA last had obtained a superseding indictment.

[00:22:07] Speaker 04:
Maybe.

[00:22:08] Speaker 04:
That's the evidence that's in the record, but based on Mr. Miles, who reviewed the materials that was provided in discovery.

[00:22:17] Speaker 02:
If he goes over 120, the way I've calculated what happens if he goes to trial, he ends up at 37 to 46, and then he can argue for a 30-month credit for time served.

[00:22:29] Speaker 04:
But, again, these were not, this was, we don't even have a complete record of what other relevant conduct, and this is presupposing... Well, I think part of your argument, it sounds like, is who the burden's on to develop this kind of argument.

[00:22:42] Speaker 01:
But I am interested to know, what's the alternate world?

[00:22:45] Speaker 01:
Because in order to understand, I think you would agree that as a conceptual matter, if somebody has a plea agreement that has a certain set of circumstances in it,

[00:22:54] Speaker 01:
and then it turns out going to trial actually would be advantageous if you look at the sentences and the person's not counseled about that.

[00:23:03] Speaker 01:
That's ineffective as a counsel.

[00:23:05] Speaker 01:
There's no disagreement about that.

[00:23:07] Speaker 01:
It can be an effective assistance of counsel to say, take this plea deal, it's good for you, and then it turns out, actually, had you gone to trial because of the way relevant conduct interrelates, you would have gotten a better sentence.

[00:23:18] Speaker 01:
That has to be an effective assistance.

[00:23:19] Speaker 04:
There was actually no finding that the... I'm just asking you as a conceptual matter.

[00:23:23] Speaker 01:
Just without talking about this case, I'm just saying, just conceptually,

[00:23:27] Speaker 01:
It seems like it has to be possible that it can be ineffective as a counsel to tell a client, take a plea deal, and then it turns out if you had gone to trial and you certainly would have been convicted, the sentence you would have gotten still would be better than what you get by taking the plea deal.

[00:23:45] Speaker 04:
If it's in that simplistic term, I think that's probably correct.

[00:23:49] Speaker 04:
However, I don't believe you can reduce this particular case to that simplistic term.

[00:23:52] Speaker 01:
So that's the question.

[00:23:53] Speaker 01:
So then it all turns on what the alternate scenario is, because we know what the scenario is with the plea deal.

[00:23:58] Speaker 01:
And then the question becomes, what's the alternate world?

[00:24:01] Speaker 04:
And it was appellant burden to introduce that evidence and demonstrate that Your Honor's

[00:24:07] Speaker 04:
characterization of the possible hypothetical result from a trial would have been more beneficial.

[00:24:13] Speaker 04:
Appellant did not present that evidence in the trial court and has not made this particular argument

[00:24:19] Speaker 04:
at all in his brief, in his opening brief, or even in his reply brief.

[00:24:23] Speaker 04:
This is being brought up for the first time in this argument.

[00:24:25] Speaker 02:
I'm not sure that's fair.

[00:24:26] Speaker 02:
One of the principal arguments he's making is that what was given up that was so damaging was the ability to argue directly for the 30-month credit.

[00:24:40] Speaker 04:
in the context of the sentencing, a carve out for the plea.

[00:24:44] Speaker 04:
Appellant has made statements that he was eager to accept a plea agreement.

[00:24:50] Speaker 05:
And I think that it's not just the argument, it's also the probation office should have, when he talked to the probation office, they should have come in with a lower criminal history category to begin with, that he dropped the ball even before he got into the courtroom.

[00:25:06] Speaker 05:
But under the definition of the free agreement clearly allows that.

[00:25:12] Speaker 04:
Under the definition of relevant conduct for 5K 2.23 to apply, it would have had to have been a relevant conduct in the offense level calculation.

[00:25:23] Speaker 04:
And it wasn't.

[00:25:24] Speaker 04:
It wasn't included in the offense level calculation.

[00:25:27] Speaker 02:
Why wasn't it relevant conduct?

[00:25:31] Speaker 02:
It's the same time, it's the same MO, it's the same credit card or debit card.

[00:25:37] Speaker 04:
It is a different jurisdiction, it is a different victim.

[00:25:40] Speaker 05:
It is an airline, a single transaction between New York and a rental car company.

[00:25:49] Speaker 04:
Yeah.

[00:25:51] Speaker 04:
Right, but my point is Virginia, the fact that you committed a crime.

[00:25:55] Speaker 05:
You had Virginia in this indictment because you had the Marriott and Key Bridge.

[00:25:59] Speaker 05:
You're correct.

[00:26:00] Speaker 05:
So it's not a different jurisdiction.

[00:26:01] Speaker 05:
It's one of the jurisdictions included.

[00:26:03] Speaker 04:
This case involved the D.C.

[00:26:05] Speaker 04:
metropolitan area.

[00:26:06] Speaker 04:
That one involved California transactions that occurred in Henrico, Virginia involving California, New York.

[00:26:14] Speaker 05:
A little further down, 95 makes it not relevant.

[00:26:16] Speaker 05:
I mean, you could have argued that at the time, but I would assume a prosecutor looking at that and deciding, do I want to fight that or do I want to change my plea,

[00:26:27] Speaker 05:
Well, it might have been thinking that they're not going to be able to sell that too well to the judge.

[00:26:33] Speaker 04:
I think you're right that we could have had this argument at the time.

[00:26:36] Speaker 04:
I think that the problem is this wasn't teed up in that way because it was other jurisdictions, multiple other jurisdictions that have had appellant convicted crime.

[00:26:47] Speaker 04:
The pre-child services report when it referred to appellants in New York

[00:26:51] Speaker 04:
conviction from 2000, there was evidence of hundreds of thousands of dollars of loss.

[00:26:57] Speaker 04:
We don't know what the loss amount was from the other jurisdictions that would all have been brought in.

[00:27:04] Speaker 02:
There's some indication of that issue in the pre-sentence report, and I guess maybe I can't go into details in open court, but that's the only place where I found it.

[00:27:17] Speaker 02:
The other thing I found bearing on this issue was the first lawyer testified

[00:27:23] Speaker 02:
He got a bunch of discovery from the government, including offenses that were neither the indicted ones nor the relevant conduct ones in the plea stipulation.

[00:27:34] Speaker 02:
And he said to himself, there's a lot of stuff here, and the benefit of this plea is unmanaging loss amount.

[00:27:43] Speaker 02:
There's stuff from New York, there's stuff from LA, there may be stuff from Miami.

[00:27:48] Speaker 02:
Is there any indication what the magnitude of that was?

[00:27:54] Speaker 02:
Are we talking thousands, tens of thousands, hundreds of thousands?

[00:27:58] Speaker 02:
Because that makes a big difference.

[00:27:59] Speaker 04:
You're right, Your Honor.

[00:28:00] Speaker 04:
That evidence was not introduced because appellant never made this particular argument in the district court.

[00:28:06] Speaker 04:
Appellant has a burden.

[00:28:08] Speaker 02:
Is it in the record?

[00:28:09] Speaker 02:
It is not in the record.

[00:28:11] Speaker 04:
The records were not introduced in the district court.

[00:28:14] Speaker 02:
The discovery?

[00:28:15] Speaker 04:
No, the appellant did not put in all of the discovery.

[00:28:17] Speaker 04:
The appellant subpoenaed records in addition to the discovery but chose to put a particular argument before Judge Bates.

[00:28:25] Speaker 04:
He did not make the argument that Your Honors are pressing now.

[00:28:28] Speaker 04:
In fact, when he stood up today, he was focusing on the sentencing and the restitution issue because that essentially was conceded that appellant wanted to plead guilty.

[00:28:37] Speaker 04:
He wanted the potential advantage from this particular plea agreement.

[00:28:40] Speaker 04:
He was hoping to receive a benefit.

[00:28:43] Speaker 05:
You have to be very careful in making that argument.

[00:28:45] Speaker 05:
He may have wanted to plead guilty.

[00:28:47] Speaker 05:
But you can't say that he wanted to agree to this if his judgment wasn't informed by counsel that had done their homework.

[00:28:58] Speaker 05:
That's my concern with your argument.

[00:29:00] Speaker 05:
We don't know that he wanted to plead to this notwithstanding what he would have wanted to plead to this if counsel collectively, Miles and Carroll, had told him

[00:29:13] Speaker 05:
what he would face if he went to trial.

[00:29:15] Speaker 04:
Appellant did not raise this particular argument in the district court, and it was his burden at this stage in 2255.

[00:29:22] Speaker 04:
In addition, appellant wanted the potential benefit of a sentencing that was available to him as part of this particular plea agreement.

[00:29:32] Speaker 02:
Can you give me a plausible scenario

[00:29:38] Speaker 02:
under which he would have gone to trial and gotten a sentence higher than the 33 months that he got, or a range higher.

[00:29:48] Speaker 04:
Well, if, for instance, an appellant was known to use hotels in New York, in California, and Miami, and at least, as I referred to the pre-trial services report, there was $200,000 of loss associated.

[00:30:02] Speaker 04:
That's the point about other appellants, right.

[00:30:04] Speaker 05:
In addition... Was all that within the statute of limitations?

[00:30:08] Speaker 04:
Statute of limitations would have been irrelevant for purposes of relevant conduct for the guidelines calculation.

[00:30:14] Speaker 04:
This court's opinion in Wyshnefsky has already resolved that issue.

[00:30:19] Speaker 05:
I'm talking about he would not have been able to be convicted on those.

[00:30:23] Speaker 04:
No, he wouldn't have been convicted on the New York, but it would have been included in relevant conduct and the entire breadth of that amount would have been calculated and added to the loss amount that appellant is so eager to reduce in terms of restitution.

[00:30:37] Speaker 04:
So a parent would have exposed himself to a higher dollar amount of restitution had he risked going to trial.

[00:30:44] Speaker 04:
This way, he was reduced in the universe of victims.

[00:30:46] Speaker 05:
Well, we're assuming counsel would have also pushed back on the statute of limitations issues in the amount.

[00:30:52] Speaker 05:
And we don't know how that all would have shook out before our judge and sentencing.

[00:30:55] Speaker 04:
Well, this court has resolved the issue of the statute of limitations for relevant conduct purposes.

[00:31:00] Speaker 04:
And there would have been, certainly, his trial counsel would have had to.

[00:31:04] Speaker 04:
But for the mandatory victim restitution act?

[00:31:06] Speaker 04:
I think trial counsel would have had to weigh that as a risk at the time as opposed to a hindsight calculation.

[00:31:17] Speaker 04:
I don't know that Mr. Miles wanted to take that risk.

[00:31:22] Speaker 05:
By the way, you don't dispute, you haven't raised your argument in this case that he can't bring a restitution challenge under 2255, right?

[00:31:30] Speaker 05:
I didn't see that in your brief.

[00:31:32] Speaker 04:
No, we have made the argument, appellant waived that or essentially abandoned that claim because he has not established it.

[00:31:38] Speaker 04:
It certainly is not clear and undisputed.

[00:31:40] Speaker 04:
No, but you haven't said that it's not cognizable under 2255.

[00:31:43] Speaker 04:
We have not made that particular argument.

[00:31:45] Speaker 04:
We have argued that

[00:31:46] Speaker 04:
Appellant, one, it's not clear and undisputed.

[00:31:49] Speaker 04:
Two, appellant did not introduce any evidence in the district court that is supporting his claims of challenge with respect to these particular.

[00:31:57] Speaker 04:
He did not bring in any witness to testify.

[00:31:59] Speaker 05:
As to the statute of limitations, are you talking about the ones that were paid?

[00:32:02] Speaker 05:
That he says were paid?

[00:32:03] Speaker 04:
That he says were paid.

[00:32:04] Speaker 05:
The statute of limitations, we don't need... No, right.

[00:32:08] Speaker 04:
This scheme would involve payment, initial payment that was reversed after the fact.

[00:32:13] Speaker 01:
So can I just ask you to elaborate a little bit?

[00:32:16] Speaker 01:
You were just talking about the alternate world.

[00:32:18] Speaker 01:
And the alternate world, I know we're asking you to reconstruct it, even though your argument would be that that's not my burden to do.

[00:32:23] Speaker 01:
But just to play it out, the main point you've made so far is that the alternate world, you have to take into account other relevant conduct that could be considered.

[00:32:30] Speaker 01:
And that other relevant conduct could have bumped up the amount such that it would have been disadvantageous.

[00:32:34] Speaker 01:
Is there any other category that you can point to as kind of obvious things that

[00:32:39] Speaker 04:
In addition, appellant, although appellant denied this was a conspiracy, each of his, many of his crimes involved other people that he was involved with.

[00:32:48] Speaker 04:
And there was evidence that would have supported that.

[00:32:51] Speaker 04:
So he had a leader, would have had a leader in addition, an additional offense level.

[00:32:57] Speaker 02:
But a conviction, conviction on a conspiracy to commit wire fraud.

[00:33:02] Speaker 02:
would not increase his sentencing exposure relative to conviction on the underlying wire fraud.

[00:33:10] Speaker 02:
There are 27 acts in the plea specification.

[00:33:16] Speaker 02:
My understanding of the guidelines is it doesn't matter, it would have been the same if he had been convicted on

[00:33:25] Speaker 02:
the substantive counts and the conspiracy counts because they would all be grouped under the guidelines that are key to amount of loss.

[00:33:33] Speaker 04:
I'm sorry if I wasn't clear.

[00:33:34] Speaker 04:
My point was that he was a leader of a conspiracy.

[00:33:36] Speaker 04:
He would have had an additional offense level increase as a result of that.

[00:33:40] Speaker 05:
Is there anything in the record that he led anybody?

[00:33:42] Speaker 05:
I'm sorry?

[00:33:43] Speaker 05:
Is there anything in the record that he was leading anybody?

[00:33:46] Speaker 04:
There was evidence that, according to Mr. Miles, AOSA last had agreed as part of their plea negotiation not to seek leader.

[00:33:55] Speaker 04:
So that was definitely on the table.

[00:33:58] Speaker 01:
It never came up, right?

[00:33:59] Speaker 01:
Because it's something that could have come up, but it actually didn't come up.

[00:34:02] Speaker 04:
It did not.

[00:34:03] Speaker 04:
And again, it was Appellant's burden to say that he wasn't.

[00:34:07] Speaker 04:
And Appellant, despite his denial that this was in a conspiracy, there was evidence that somebody else had to be the person.

[00:34:13] Speaker 04:
If he's at the desk and somebody else is making the phone call with

[00:34:17] Speaker 04:
the false access code.

[00:34:19] Speaker 04:
By definition, somebody else was involved.

[00:34:21] Speaker 02:
What's leader plus two?

[00:34:23] Speaker 02:
I'm sorry?

[00:34:24] Speaker 02:
What's the adjustment for leader?

[00:34:25] Speaker 04:
I believe it's plus two.

[00:34:27] Speaker 04:
It depends on the number, and I think that is something we don't know, again, because the appellant did not raise this argument in the district court, and therefore we do not have a complete record in order for this court to resolve it based on

[00:34:40] Speaker 04:
a plea that never happened.

[00:34:42] Speaker 05:
When you say this argument, the thing you're saying, he didn't raise the argument that the sentence would have been not materially higher had he gone to trial.

[00:34:50] Speaker 04:
Yes.

[00:34:50] Speaker 04:
Appellant did not introduce any evidence to make the argument that he stood to benefit.

[00:34:54] Speaker 04:
He introduced one side of it to say that if you just look at JetBlue,

[00:34:59] Speaker 04:
then you could just isolate that point, but that it was relevant conduct.

[00:35:06] Speaker 04:
But his argument ignores the fact that when it wasn't included in the offense calculation under 5K 2.23, it could not have been used.

[00:35:16] Speaker 05:
To the extent the government, part of its arguments were that, hey, this was a good deal.

[00:35:22] Speaker 05:
Right.

[00:35:22] Speaker 05:
It wasn't prejudicial anyhow.

[00:35:24] Speaker 05:
This was a good deal, and it wouldn't have gotten any better.

[00:35:26] Speaker 05:
Why wasn't it part of the government's burden to show?

[00:35:30] Speaker 05:
how bad it would have gotten to have that argument.

[00:35:34] Speaker 04:
Well, it was not the government's burden to present evidence to discount this argument that was not framed for the district court.

[00:35:44] Speaker 05:
No, no, but clearly your argument was, we were not going to give you anything better, and this was the wise thing to take.

[00:35:50] Speaker 05:
That was clearly litigated below.

[00:35:53] Speaker 05:
As to both sides, I mean, I give you, as to both sides, I don't understand how you could make that, the government could make that argument without having any, how could you responsibly make that argument without having any idea what he would have faced had he pressed all these issues, lost his good cooperation credit, or what is it, acknowledgement of responsibility credit.

[00:36:18] Speaker 05:
We don't, no one knows.

[00:36:21] Speaker 04:
I think that what the government did was respond with, had Mr. Miles rejected this plea offer, it would have opened up the world of other relevant conduct.

[00:36:31] Speaker 04:
It did not, it was not, because it was not framed by appellant in this challenge, this specific challenge in the way that your honors are focusing, it was not elaborated on in the district court.

[00:36:41] Speaker 05:
There's also a representation, as I recall, that there wasn't gonna be any other plea offer.

[00:36:45] Speaker 05:
And it just seems to me, I don't know why the government

[00:36:48] Speaker 05:
would come to that position unless it had some sense of what it would be hitting him with otherwise.

[00:36:57] Speaker 05:
If he's going to go to all the trouble of a trial, they better get some bang for their money, right?

[00:37:03] Speaker 05:
So he must have had a sense of what he would face at trial.

[00:37:06] Speaker 04:
I'm sure.

[00:37:07] Speaker 04:
Unfortunately, it wasn't AUSA last who handled the hearing.

[00:37:11] Speaker 04:
He had left the office by that time.

[00:37:13] Speaker 04:
And so we don't have, he wasn't called by appellant.

[00:37:17] Speaker 04:
And again, although appellant keeps trying to shift the burden to the government, it was his burden to introduce the possibility of any alternative play.

[00:37:25] Speaker 04:
And again, appellant, how do people prove that?

[00:37:28] Speaker 05:
I've just always been curious.

[00:37:29] Speaker 05:
How can they prove an alternative fleet?

[00:37:32] Speaker 05:
Because of course, the government at this stage is going to say, no, no, that was our best offer.

[00:37:35] Speaker 05:
They've got every incentive to say that.

[00:37:37] Speaker 05:
And I don't know how they're supposed to get in the mind of folks, other than to say, because I would have shown you, I was only facing X, Y, or Z. Maybe that's the point.

[00:37:45] Speaker 04:
I think when I went back and re-read Newman this morning about the appellant's burden of what he's going to have to show, that there was an alternative available.

[00:37:54] Speaker 04:
It doesn't discuss how an appellant has to prove it, but it is squarely on appellant's shoulders to prove it.

[00:38:00] Speaker 04:
No, I get that.

[00:38:01] Speaker 05:
I'm just asking you and your experiences with the U.S.

[00:38:03] Speaker 05:
Attorney's Office.

[00:38:04] Speaker 05:
Has anyone ever successfully shown that, or how do they do it?

[00:38:06] Speaker 04:
I haven't had that experience, and I can only speak from my personal experience, Your Honor.

[00:38:11] Speaker 04:
I don't know that

[00:38:12] Speaker 04:
Appellant couldn't have called AUSA last.

[00:38:15] Speaker 04:
He is in the jurisdiction, even though he had left the office.

[00:38:18] Speaker 04:
He could have made that effort.

[00:38:20] Speaker 04:
He didn't make that effort to show that there was any alternative available, just that they speculate that a different potential plea was potentially available, and that's simply insufficient under Newman.

[00:38:35] Speaker 04:
I would also note, Your Honor, just in closing, that Appellant's argument rests on a mischaracterization of Miles' testimony.

[00:38:45] Speaker 04:
Mr. Miles did not testify that he intended to make a 5K argument.

[00:38:51] Speaker 04:
The questioning that appellant cites in the transcript was that he had intended to make any variance argument at sentencing.

[00:38:59] Speaker 04:
He never testified that he intended to make this particular argument of 5K, because he did not make a determination that the Virginia case would be a relevant case under that section.

[00:39:12] Speaker 04:
And he also recognized that he couldn't make a 5K 2.23 variance argument because of the terms of the plea agreement.

[00:39:22] Speaker 01:
Thank you.

[00:39:30] Speaker 03:
I guess on the last point, I would disagree.

[00:39:32] Speaker 03:
It's true.

[00:39:33] Speaker 03:
He didn't say he was going to raise a departure argument.

[00:39:35] Speaker 03:
He did say he was going to raise a variance argument on the same grounds and

[00:39:38] Speaker 03:
I think that the record is fairly clear on that.

[00:39:41] Speaker 03:
I just want to make three quick points.

[00:39:43] Speaker 03:
I appreciate the court indulging me.

[00:39:45] Speaker 03:
First, just to reiterate, I think any higher offense level he faced would have been offset by the lower criminal history score he would have gotten.

[00:39:52] Speaker 03:
Plus, of course, then on top of that, he could have argued for the 31 months credit.

[00:39:56] Speaker 03:
Second point is simply to look at what the lawyer argued here, Mr. Carroll.

[00:40:02] Speaker 03:
Quote, he's a thief, but not a very good thief.

[00:40:06] Speaker 03:
That's his argument.

[00:40:07] Speaker 03:
He's a thief but not a very good thief.

[00:40:09] Speaker 03:
That's the sentencing argument.

[00:40:10] Speaker 03:
Really?

[00:40:11] Speaker 03:
This is more than him arguing something soft.

[00:40:14] Speaker 03:
This was a schizophrenic argument.

[00:40:16] Speaker 03:
He was arguing below guidelines and within guidelines at the same time.

[00:40:21] Speaker 03:
It was insincere and it came across as insincere because it was internally inconsistent.

[00:40:26] Speaker 03:
And he didn't know all the key facts.

[00:40:28] Speaker 03:
He didn't know it was the same debit card.

[00:40:30] Speaker 03:
He admitted that.

[00:40:31] Speaker 03:
And he didn't know that victims had been paid and were getting ordered restitution.

[00:40:37] Speaker 03:
So I think the deficiency is obvious.

[00:40:39] Speaker 03:
In the bottom line, I would conclude by saying even Judge Bates in ruling against this said this was a close call on counsel.

[00:40:48] Speaker 03:
Please look at the government's brief at pages 12 and 13 where it lays out Judge Bates' rationale for his sentencing.

[00:40:55] Speaker 03:
What he says is he mentions nothing in his mitigating factors about how he had served time on a related or similar Virginia sentence.

[00:41:05] Speaker 03:
He mentions nothing.

[00:41:06] Speaker 03:
That's not even listed as a mitigating factor.

[00:41:08] Speaker 03:
Why?

[00:41:09] Speaker 03:
Because it wasn't raised as a mitigating factor below the sentence.

[00:41:12] Speaker 03:
And then on page 13, he concludes by saying that his sentence is consistent with what is being given to similarly situated people.

[00:41:20] Speaker 03:
That's not so.

[00:41:21] Speaker 03:
5K2.23 says that similarly situated people would have gotten a credit.

[00:41:26] Speaker 03:
Let Judge Bates issue a sentence that takes all the facts into account, including the ones that should have been brought to him.

[00:41:33] Speaker 03:
Please remand with directions that he evaluate prejudice.

[00:41:36] Speaker 05:
Can I ask one quick question in that regard?

[00:41:38] Speaker 05:
I don't know.

[00:41:40] Speaker 05:
on assuming, and I'm not suggesting, but assuming if there were to be a determination that say that we needed to have a hearing on that issue, like a remand and a hearing on that issue.

[00:41:52] Speaker 05:
I don't know if any of this could all be done with respect to the government's rights in time before he's released.

[00:41:59] Speaker 05:
Is there any collateral

[00:42:01] Speaker 05:
value to this or does this really, does the sentence itself, does it only matter if it's accomplished before the release date?

[00:42:12] Speaker 03:
The only way that he would not face prejudice is if you granted him bail, I suppose, while this is being evaluated and a decision has been reached.

[00:42:21] Speaker 03:
But I think the sense is that interrupting a sentence is typically not

[00:42:26] Speaker 03:
generally considered a good thing.

[00:42:29] Speaker 03:
We would need to get relief, it would need to get remanded, and the Judge Bates would then need to hold a prompt hearing.

[00:42:34] Speaker 03:
And then look, if he finds no prejudice, he'll serve the rest of the sentence.

[00:42:38] Speaker 03:
If he does find prejudice, though, if there's deficiency, he can grant relief.

[00:42:42] Speaker 03:
And whatever relief he thinks is fair, consistent with the guidelines, that's all we're asking.

[00:42:47] Speaker 03:
Thank you.

[00:42:48] Speaker 05:
Can you assume that both counsel will keep us updated on his release date?

[00:42:52] Speaker 03:
Yes, Your Honor, we'd be happy to.

[00:42:54] Speaker 01:
Thank you.

[00:42:54] Speaker 01:
Mr. Smith, you were appointed by the Court to represent the appellate in this case, and the Court appreciates your assistance.

[00:42:59] Speaker 01:
Thank you.