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17-30-01, United States of America versus Frederick A. Miller, also known as Toby Appellant.

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Mr. Hart for the appellant, Ms.

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Bates for the appellee.

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Good morning, Mr. Hart.

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You may proceed.

[00:00:20] Speaker 05:
Thank you, Radham.

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Let's write for the fact that my name is Dennis Hart.

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I appear today for the third time on behalf of Mr. Miller before this court.

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This time it's for his resentencing that occurred about a year ago.

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With the Court's permission, I'd like to address one issue first, and that is a waiver.

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The waiver we're concerned about is the government's lead argument about not being able to argue in front of this Court the quantity, decisions, the role in the offense, and the weapons enhancement.

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I'd wish to address it first because the government response has some attraction to it.

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And I need to dispel that in the court's mind as quickly and as cleanly as I can.

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Their response is that it was not raised in the first or second appeals and therefore was conceded and cannot be raised in this third appeal.

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I believe that attraction is a false attraction for the following reasons.

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When the first rule in appeal lawyer school is go with your best issue.

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That's the golden rule.

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That's the primary rule.

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That's what's drummed into you in appeal lawyer school.

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Now, I don't always follow that rule, and I admit it's a hard rule to follow, but I still recognize that as best practices.

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And sometimes I break it, but most times I try and follow it.

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But I do recognize that it is best practices.

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Go with your best issue.

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Don't include second and third tier, fourth tier issues because they confuse, they muddy the issues, and they drag down your lead issue.

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This was never, although I have problems with it in many cases, this was never a problem in Mr. Miller's case.

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because the arguments about quantity of drugs, role in the offense, and the weapons enhancement were never issues in the first appeal.

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They were never issues in the second appeal.

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Well, it is the case that they were contingent issues.

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And so I think all of them were contingent issues.

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Actually, I think the drug quantity was a

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potential real issue.

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I would disagree.

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Applying to the CCE conviction.

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Well, the CCE conviction, if it had been held by the judge, I would agree with that, but it was not.

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It was a jury verdict.

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It was a finding by the jury.

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I don't see how I could attack that, other than by some extraordinary amount of insufficiency, but it was a jury verdict, not a judge finding.

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It was a mandatory life sentence.

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The trial lawyer didn't attack at a sentencing.

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I could not attack at an appeal.

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This court would have laughed at me for trying to do that.

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I try and avoid the court laughing at me, and that's one of my second rules.

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I hope we never do that.

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What about the merits of that issue?

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You know, as I read the transcript, Judge Lamberth did

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he was sat through the trial and he said that he was making a reasonable foreseeability finding and determining the amount of drugs attributable to Mr. Miller.

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He listed various arguments and then he said, quote, after listening to the testimony at trial and the evidence presented at trial, I find that the entire amount of drugs underlying the CCE conviction is attributable to Mr. Miller.

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Why isn't that enough?

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It's not enough for a couple of reasons.

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The first one,

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I don't want to harp on, but it should be obvious.

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those facts that Judge Lamberth listed occurred 10 years ago.

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And I don't know how many trials he heard in between them.

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But I think it's unreasonable to assume that he recalled a 10-year-old trial, well, actually two trials, that lasted three and four months each, 10 years later, and could specifically point to facts that supported that conclusion.

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But more importantly, we need an opportunity to respond.

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We can't tell the judge, no, you're wrong.

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if we don't have anything to respond to.

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That blanket conclusion does not allow us to explore the issue.

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It must be particularized.

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And we've listed the cases that this Court has required for that particularization.

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That blanket statement is not sufficient.

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If I can return to the waiver, I would suggest that if the Court adopts the government's theory, that these issues were waived because they weren't raised in the first and second appeal,

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It invites the appellants in the future to engage in briefs that are no more than 100 bullet points.

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I can see that some judges might like that.

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That's an argument we've made.

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But I don't think that's the way to resolve the issue.

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And I say that because it would require appellants to engage in

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diagram of alternatives and assign responsibilities to those and probabilities.

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An impossible task for most appellants, I would suggest, particularly in a complex case like this.

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One thing the record in this case does not demonstrate, but which is found in the record of the two trial cases, is

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In the second appeal of Mr. Miller's second trial, the appellants themselves engaged in that tremendous amount of litigation and argument between themselves on the amount of words, the issues involved, who would edit the brief, and who would make the decision on what issues to go forth and not.

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In fact, they came to this court and filed motions that we had to litigate.

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I mention that because words are valuable.

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They cannot be wasted on alternative or possible issues.

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OK.

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I think we've heard your argument on the forfeiture question.

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But on the merits of that drug quantity question, what more, by explanation or by findings, do you think is required?

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I mean, we have findings by the district judge as to Mr. Miller's leadership role in the conspiracy and his written opinion from 2007.

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It's true that a lot of time passed, but presumably the district judge also has access to the records of the proceedings.

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Did he have to go through and add up the drug amounts?

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What's your case on what more a district judge is required to do on the drug quantity question?

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He has to give more than that blanket.

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He was the right-hand man.

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He's responsible for everything answered the Judge Lamberth gave.

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And we have jury findings.

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Every case is dealing with requiring the judge to spell out the trace exactly how he attributed

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ounces to a particular person involved relatively peripheral defendants?

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No, they have not.

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And I don't... And applied to the top banana?

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No, not small amounts to the top banana.

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I believe that this court has approved many times cases in which they've taken suppliers, two or three kilograms a week, things like that.

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Generalized statements that were testimony at trial that we could address.

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and added those up over the life of an 18-month conspiracy.

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That's sufficient.

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But that was nowhere near what Judge Lambert did in the present case.

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We have to have the ability to say, no, Judge, you're wrong, because we could not say that when the judge says, I listened to the evidence.

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He was the right-hand man.

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He gets the entire drug amount.

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I'm interested on the question about Mr. Miller's role in the offense and the

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ambiguity in the transcript between the statement of the standard by Judge Lamberth and that corresponds to the three point enhancement and the giving of the four point enhancement.

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Are you arguing that the difference there is going to affect the drug quantity or not?

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No, it doesn't.

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The court is required to make findings for the four-point enhancement.

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The district court made findings for the three-point enhancement.

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It imposed four.

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How about on the firearm possession?

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The government says, well, you know, he was stealing drugs and the gun was found.

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The gun was found near

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So PCP, what's your position on why?

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I'm not certain I would agree with found near PCP.

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I believe that the evidence is it was found near a container that had the odor of PCP.

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But under Bell, our decision in Bell, I just

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If it's conduct relevant to the offense, what's your position that here's somebody who is, his full-time job appears to be managing this drug conspiracy and this quantity of drugs is assuming that we rule against you on the first point about the quantity, the quantity of drugs is attributable to the conspiracy.

[00:09:18] Speaker 03:
What further nexus is required on facts like this?

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Well, a great deal of nexus is required.

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The drugs must be found in proximity to the weapons involved in the enhancement.

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There must be a clear connection between the firearms and the drugs found.

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There were no drugs found in the residence from which the guns were recovered.

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Or drug paraphernalia, right?

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I mean, we've had cases where it wasn't drugs, but they were scales and glassing bags or that kind of thing.

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And is it your position that there's no such facts here?

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There is a container which had the order of PCP.

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Why isn't that enough?

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Well, we don't know how close they were.

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We don't know what quantity the container was.

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It's for personal use.

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That's not involved in drug distribution.

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And I would add that Mr. Miller was charged with PCP distribution on a number of counts and was acquitted on all of them.

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So there is a variation there.

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The guns found must have some relevance to the offense for which he was convicted.

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There must be some nexus and there must be some physical proximity.

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We don't know where the guns were found.

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We don't know where the drugs were found.

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If the guns, for instance, were in the safe, locked up, that's certainly not proximity to facilitate the drug transaction.

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But the final point I'd like to make is, as I stand here today, I do not know what weapons he was enhanced for.

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I saw you made that argument in your brief, but I think it's relatively clear.

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Judge Lamberth referred to the weapon at colony, and he talked about a gun seized, a seized firearm at colony, and that refers to Mr. Miller's residence, does it not?

[00:11:10] Speaker 05:
It does.

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So that just seems to me to make it clear.

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If it's clear to this court, then I'm satisfied with it.

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It was never clear to me whether it was the guns other people used

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that Mr. Miller was associated with, or the guns at Colony Road.

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But I think if it's only Colony Road, the government still failed its nexus for that enhancement.

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I mean, we have very little, but he does say the gun seized at Colony.

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And to me, that seems to denote his own gun at his home.

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He did say that.

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And does that help you, or does it make a difference?

[00:11:44] Speaker 05:
Well, it doesn't hurt us.

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It solves the riddle of what guns he was enhanced for.

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That was never made clear, for instance, by the government in their brief.

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But it doesn't hurt us because we still have the failure to provide the nexus between the guns recovered and the offense for which he was convicted, that is drug conspiracy distribution.

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Thank you.

[00:12:15] Speaker 02:
May it please the court, Lauren Bates on behalf of Appellee of the United States.

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I'd like to begin briefly with our waiver arguments.

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The government maintains that appellant did waive his ability to challenge at a resentencing the three aspects of the guidelines calculation that he challenges now.

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And that's because he didn't challenge those aspects of his guidelines calculation at the time that it was initially calculated and on direct appeal.

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save for the fact that he did in fact object to the two-point firearm enhancement at the time the original PSR was completed and drafted, which I think undercuts Appellant's argument today that it would have been futile for him to have made objections and pursued the objections that he now advances to the guidelines.

[00:13:05] Speaker 04:
Are you meaning to say waiver or law of the case?

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Are you really coterminous?

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So no, and I think perhaps I am inappropriately using waiver as a shortcut term to encompass both of the government's arguments here, which are that he is precluded from now at a second.

[00:13:23] Speaker 04:
You were lying on the chief judge's decision.

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You're trying to put this case in that framework, and what can be heard on return in a criminal case?

[00:13:33] Speaker 02:
Correct, within Thomas, but also within the mandate rule, which is what I would call the Blackson case primarily standing for, which is that both this was not raised at the initial appeal, which was an appeal from the convictions and the sentences imposed here, but also... But you do recognize that

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You can have a series of objections which, by the grace of God from the defendant's point of view, the most severe problems get knocked out in his favor.

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Then some other issues arise.

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I mean, we've said that and we have invoked

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problem that counsel invoked of briefs just littered with contingent arguments, briefs and also applies equally at the trial court level.

[00:14:28] Speaker 02:
No, and I do recognize that.

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I think that it is important to hear one of appellant's arguments that he made both in his brief and today is how do we know that the district court had a specific recollection of the facts that supported

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these various guideline calculations and enhancements when the trial occurred 10 years ago.

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And that's more support for the reason why appellant should have raised these arguments at the time of the initial sentencing and direct appeal.

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But they wouldn't have been, I mean, they're just not relevant.

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Isn't the point that the first appeal gave relief, which then peels away part of the case and renders relevant

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and material to the sentence, factors that really weren't, they were, as Judge Williams put it, they were very contingent.

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Yes, theoretically, if you're playing a chess game with the sentence, you can think, well, several moves down the road, but that's a pretty demanding standard, and I'm not sure what it really serves.

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I appreciate the passage of time problem, but that's why we have transcripts, and that's why we have you find people briefing.

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I recognize the difficulties that the court has pointed out.

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I think the government maintains its waiver argument, especially given that the guidelines calculations did drive the relevant sentencing framework

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for the Rico conspiracy count, which Appellant was sentenced on at that initial sentencing.

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And so Appellant would have had the incentive to make sure that the guidelines calculations were based on facts that he agreed with.

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But regardless in this case, even if the arguments are not waived or precluded from being raised now, the government maintains that the

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challenges to the guidelines calculations are meritless here and I can go Before you leave your claims you cite Thomas at page 33 of your brief.

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Isn't it clear that the court there has confused all the case with the doctrine of waiver through failure to assert an issue on an initial appeal?

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It cannot be the case that a

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district judge applying correctly law of the case to an issue, somehow immunizes that decision from appellate review.

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That would be utter nonsense.

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Right?

[00:17:01] Speaker 02:
No, it is not immunized from appellate review because there was the opportunity to seek appellate review of that.

[00:17:09] Speaker 06:
Then you're talking not about law of the case, but as waiver through failing to pursue an issue in an initial appeal, which is completely different from law of the case.

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I mean, they're both doctrines aimed at saving time, simplifying life, and so forth, but they have completely different ingredients.

[00:17:31] Speaker 02:
I do think they have different ingredients, but here it seems to intersect.

[00:17:37] Speaker 06:
They don't really intersect.

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The fact that the, and I was fascinated by your opening remarks.

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You especially thought that a defendant's position was worse because he raised the gun issue in the first sentencing.

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Surely that can't make him worse off.

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If he not raised it, you'd be claiming that he'd waived it then.

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Right?

[00:18:01] Speaker 06:
But your real argument is that he waived it through not asserting it in that initial appeal.

[00:18:06] Speaker 02:
Correct.

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And I think I use the reference to raising the two-point firearms enhancement solely to, as I think it serves in the government's view, as evidence as to undercut the argument that appellate makes that it would have been pointless for him to raise any challenges to the guidelines calculations when he was being sentenced for the mandatory life CCE.

[00:18:27] Speaker 03:
But that was an enhancement that was relevant to that, whereas here we're talking about quantities that only become relevant given the jury verdicts on the RICO count when that comes to the fore, right?

[00:18:40] Speaker 03:
So it's a little bit of a different posture from the conspiracy count when that comes to the fore.

[00:18:44] Speaker 03:
Let me ask you on the quantity.

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Is it not

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support for Mr. Miller's position that we have the court appeals in the first appeal saying there's not enough evidence to support defendant's control over J. Ingram and is there some quantity of drugs associated with Mr. Ingram that would therefore affect Mr. Miller's responsibility for the full quantity of drugs that Judge Lamberth attributed to him

[00:19:18] Speaker 03:
given the jury's finding on the CCE count.

[00:19:22] Speaker 02:
So I think as to that no is my answer and that's because when this court found in

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reversing the CCE conviction, the appellant didn't exercise the degree of control that is necessary to support the CCE conviction over Ingram.

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This court found that appellant was in a buyer-seller relationship with Ingram.

[00:19:46] Speaker 02:
So these drugs that related to Ingram

[00:19:49] Speaker 02:
Appellant would still be held accountable for those drugs when it comes to determining drug quantity, because all that's required is that the quantity be foreseeable, and it certainly is foreseeable when you are selling the drugs to Ingram.

[00:20:07] Speaker 03:
Do you know that the buyer-seller relationship covered all the drugs attributable to Ingram?

[00:20:15] Speaker 02:
I think that

[00:20:17] Speaker 02:
I don't know if there was specific evidence that every single piece of narcotics that Ingram dealt with and trafficked was actually purchased from or came from a buyer-seller relationship with Miller, but I think that the evidence, both that the district court found that Miller was at the top of this conspiracy, that he was the co-leader of it, and as this court, in its opinion,

[00:20:47] Speaker 02:
that Miller and Island were involved in the entirety of this conspiracy, that that would support a foreseeability finding, which is what the district court found as it relates to applying the drug quantity.

[00:21:03] Speaker 03:
I have the same question for you that I asked Mr. Hart, which is, if we thought that Judge Lamberth really did intend to give a three-point enhancement for role in the offense, might that actually affect the reasoning that you just articulated?

[00:21:19] Speaker 02:
I don't think so, because even if you were the manager or supervisor over the other conspiracy

[00:21:27] Speaker 02:
co-conspirators in the conspiracy.

[00:21:29] Speaker 02:
This court has held in cases that that's sufficient to find that the entire quantity of drugs attributable to the co-conspirators is foreseeable to you.

[00:21:39] Speaker 02:
And here it certainly would be, but I also take issue with, I don't believe that the record supports the conclusion that the district court intended to find that appellant was only a manager or supervisor.

[00:21:52] Speaker 02:
Just one more note.

[00:21:54] Speaker 02:
Two more perhaps on the drug quantity.

[00:21:57] Speaker 02:
To the extent that appellant had concerns that specific portions of the drugs that were part of the evidence of this conspiracy were not attributable to him, appellant did not advance that argument, that specific argument before the district court.

[00:22:14] Speaker 02:
Never asked the district court to make more specific findings trying to carve out

[00:22:19] Speaker 02:
certain drugs for Ingram, and in fact now suggests in his brief, I think it's footnote four if I'm not incorrect, that the bulk of the quantity came from one of the co-conspirators, Ames, who is one of the co-conspirators that this court on appeal found that Miller appellant exercised that leadership role over in connection with this conspiracy, which again just further supports

[00:22:48] Speaker 02:
that the district court had a basis grounded in the evidence at trial here as it stated when it found that based on the testimony at trial and the evidence presented at trial, the district court found that the entire amount of drugs was attributable to appellant.

[00:23:06] Speaker 03:
You said you had a couple points.

[00:23:09] Speaker 03:
I don't want to interrupt you.

[00:23:09] Speaker 03:
I have a question about the gun bump, but go ahead.

[00:23:11] Speaker 03:
Yes, I'm happy to turn to that now.

[00:23:14] Speaker 03:
So what is the nexus?

[00:23:15] Speaker 03:
I mean, if somebody's a gun owner and they have a gun at home, as Mr. Hart was hypothesizing, maybe it's locked in a safe, and he's also a full-time drug dealer,

[00:23:28] Speaker 03:
Don't we need some nexus articulated by the district court?

[00:23:33] Speaker 03:
I think it's pretty clear that the gun he's talking about is not one of the guns that the evidence showed people were running around with.

[00:23:42] Speaker 03:
It was the gun that he had at home.

[00:23:44] Speaker 03:
And so what's the government's position on why that enhancement applies?

[00:23:49] Speaker 02:
So here, the government's position is that the district court found

[00:23:53] Speaker 02:
that Mr. Miller, the quote is, was in fact in possession of a firearm during this drug conspiracy based on the evidence that the court heard and saw.

[00:24:02] Speaker 02:
Appellant never requested further, more specific findings from the district court as to the basis of the district court's belief that there was the nexus, the connection, the relevance.

[00:24:14] Speaker 02:
So any review would be for plain error now.

[00:24:17] Speaker 02:
And the appellant cannot demonstrate that the district court plainly erred, given the ample evidence in the record that the gun was recovered from the appellant's home.

[00:24:27] Speaker 02:
in June 2004, which was during the life of Appellant's active involvement in this conspiracy, given the evidence that in Appellant's home, when the search warrant was executed, also recovered was the vial that smelled of PCP, but in addition to that were bottles of acetone, an agent that is often used to cut or dilute PCP, tools of the drug trade, which puts this again, both in time and in proximity to conduct that is relevant

[00:24:57] Speaker 02:
to the drug and narcotics conspiracy here.

[00:25:04] Speaker 03:
had Judge Lamberth articulated it could support the gun bomb.

[00:25:11] Speaker 03:
The question is, is that what he was thinking?

[00:25:14] Speaker 03:
I mean, this, the PCP, Miller himself is acquitted of PCP conduct, doesn't mean that it can't be brought in on sentencing by a finding, by the preponderance or whatever, but it does, it seems to me, clear the slate and requires something, or at least arguably, I guess I'm just asking you, does it?

[00:25:31] Speaker 02:
So I don't think here where appellant didn't object and didn't request those further findings.

[00:25:36] Speaker 03:
He objected to the gun bump.

[00:25:38] Speaker 02:
He objected initially to the application of the gun bump.

[00:25:41] Speaker 02:
The court addressed the application, found that it was going to apply the gun bump that Mr. Miller was in fact in possession of a gun during the conspiracy.

[00:25:51] Speaker 02:
Appellant never made the argument initially that, you know, well, there's not enough of a nexus between that gun and

[00:25:58] Speaker 02:
the conspiracy and didn't ask the district court, can you elaborate on your basis?

[00:26:02] Speaker 02:
Please provide findings for this.

[00:26:04] Speaker 02:
And under this court's case law, the government says that subjects this claim now to review for plain error.

[00:26:10] Speaker 03:
So is that required?

[00:26:12] Speaker 03:
You know, this comes up a lot where somebody makes an objection.

[00:26:15] Speaker 03:
the judge addresses it.

[00:26:17] Speaker 03:
And I think government lawyers have different views on this.

[00:26:21] Speaker 03:
Are you supposed to then, is the defendant supposed to then say, well, you've addressed it.

[00:26:26] Speaker 03:
I'm not satisfied.

[00:26:28] Speaker 03:
And I don't think a lot of district judges actually expect that there's going to be further critique of what they've just done to preserve for appeal.

[00:26:38] Speaker 02:
The extent that the challenge on appeal is that the district court failed in articulating sufficient facts

[00:26:45] Speaker 02:
at the time of sentencing to support the enhancement, yes, a further objection is requested.

[00:26:51] Speaker 03:
What's your support for that in our case law?

[00:26:54] Speaker 02:
The court's brief indulgence.

[00:26:57] Speaker 03:
The notion that there's this requirement, you've made an objection, the court has dealt with it, and then you don't

[00:27:04] Speaker 03:
like the way the court has dealt with it.

[00:27:06] Speaker 03:
In order to preserve that for appeal, you have to re-object it.

[00:27:10] Speaker 02:
Yes.

[00:27:11] Speaker 02:
I apologize.

[00:27:11] Speaker 02:
I will.

[00:27:13] Speaker 02:
I think that we cite on page 29 of our brief MAC for the proposition that when a defendant fails to object, the adequacy of the district court's findings review is for plain error.

[00:27:24] Speaker 02:
And I'm happy if

[00:27:26] Speaker 02:
to find additional cases to support that proposition if the court would like.

[00:27:31] Speaker 02:
But again, here there was the district court made findings and there was certainly ample evidence in this record, especially given this court's recognition and the

[00:27:40] Speaker 02:
evidence at trial that supports the link between drugs and guns.

[00:27:45] Speaker 02:
There was evidence at trial that numerous other of the co-conspirators had guns and carried guns in connection with the drug activity here.

[00:27:54] Speaker 03:
That's right, and that sort of is rolled into Judge Lambert's comment, you know, possess guns, use them.

[00:28:02] Speaker 03:
That's sort of balling together a lot of things.

[00:28:04] Speaker 03:
I mean, he doesn't, there were other guns.

[00:28:07] Speaker 03:
But given the reference to colony and the gun seized at colony, it seems pretty clear that Judge Lambert meant the gun that Miller had at home.

[00:28:14] Speaker 03:
So that way, I think that a little bit makes the government's position confines you to linking his conduct, to linking the bump to that gun.

[00:28:25] Speaker 02:
But I think that in linking even to that gun, even to the colony of guns, I think it was three, that it

[00:28:32] Speaker 02:
is relevant and the fact that other co-conspirators are arming themselves with guns during the course of this conspiracy supports that the gun that Miller possessed in his home was possessed during conduct relevant to the narcotics conspiracy here.

[00:28:50] Speaker 02:
He's at the top of this conspiracy, has

[00:28:54] Speaker 02:
is trafficking in $20,000 of drugs.

[00:28:57] Speaker 02:
I think the evidence was a week at times.

[00:29:00] Speaker 02:
There is a well-recognized link in this court's case between drugs and guns.

[00:29:05] Speaker 02:
It's played out at the evidence at trial here.

[00:29:08] Speaker 02:
The gun is found during the life of the conspiracy in proximity to the tools of the drug trade.

[00:29:14] Speaker 02:
And the government submits that that is ample evidence to support.

[00:29:17] Speaker 02:
the district court's application of the gun bump.

[00:29:19] Speaker 04:
Before you sit, can you just tell me clearly now, because I'm still not sure what your argument is.

[00:29:27] Speaker 04:
Waiver, law, the case, your brief is not clear on this.

[00:29:31] Speaker 04:
I think it matters.

[00:29:33] Speaker 04:
It's the focal point of your argument.

[00:29:35] Speaker 04:
It's where you started.

[00:29:36] Speaker 04:
And you use both terms in the brief, as I recall.

[00:29:41] Speaker 04:
They're not the same.

[00:29:43] Speaker 04:
What is your thesis, and Judge Williams has raised a question for it, what is your thesis and how are you playing it out in your mind?

[00:29:50] Speaker 04:
Because I'm really not following that at all.

[00:29:52] Speaker 04:
And it's, as far as you are concerned, it's crucial to your argument.

[00:29:56] Speaker 04:
It's your lead argument.

[00:29:57] Speaker 02:
And I apologize for any lack of clarity.

[00:29:59] Speaker 04:
Well, it's just you're using two different concepts, and I'm trying to figure out which one and then how do you defend it.

[00:30:06] Speaker 02:
I think that the argument is both an argument that is a strain of law of the case, but that the law of the case argument arises from the fact that appellant did not

[00:30:21] Speaker 02:
make these challenges at the times when he had an opportunity before.

[00:30:27] Speaker 06:
If the court decides that the conditions on the first appeal were such that not raising the issue waived it, there's no occasion to go to law of the case.

[00:30:37] Speaker 06:
If the court decides that it was quite proper for the appellant not to raise the issue on the first appeal, I don't see how that transforms the district judge's decision

[00:30:49] Speaker 06:
you know, something that's invulnerable under the law of the case doctrine.

[00:30:55] Speaker 03:
Right, because by hypothesis it hasn't addressed the issue, the particular issue.

[00:31:00] Speaker 02:
And I do think that together the government's arguments do hinge on this idea that the government maintains that it was

[00:31:09] Speaker 02:
not appropriate for appellant to have failed to raise these arguments at prior occasions.

[00:31:15] Speaker 06:
Basically, it seems to me for definitions, you have different claims.

[00:31:18] Speaker 06:
One is forfeiture by failing to raise at the district court.

[00:31:24] Speaker 06:
The other, specifically the gun, is forfeiture through failure to raise in the course of the appeal.

[00:31:30] Speaker 06:
Right or wrong, those arguments stand or fall without any reference to law of the case.

[00:31:38] Speaker 06:
No?

[00:31:39] Speaker 06:
If not, why not?

[00:31:41] Speaker 02:
Correct.

[00:31:42] Speaker 02:
Yes, I agree.

[00:31:43] Speaker 06:
It would be better if some opinions of this court had not thrown in references to law of the case.

[00:31:51] Speaker 02:
Very well.

[00:31:51] Speaker 02:
Thank you.

[00:31:52] Speaker 02:
We ask that the judgment of the district court be affirmed.

[00:31:55] Speaker 02:
Thank you.

[00:31:56] Speaker 03:
Thank you.

[00:31:57] Speaker 03:
Does Mr. Hart have time remaining?

[00:32:01] Speaker 03:
Mr. Hart will give you three minutes.

[00:32:07] Speaker 04:
And following up on this, I'd like to hear again your response to the query that your failure to raise doesn't make sense in light of the fact that even if the CCE was going to be vacated, it would have reduced the sentencing range.

[00:32:26] Speaker 04:
And so there was an incentive for those issues to be raised earlier, and your failure to do so should cost you now.

[00:32:33] Speaker 05:
That's impossible.

[00:32:35] Speaker 04:
I mean, your efficiency argument isn't doing it for me completely.

[00:32:39] Speaker 04:
I hear you.

[00:32:39] Speaker 04:
And I think it's kind of a shrewd way to cloud it, except I'd rather get back to the reality that there was some gain for the defendant in raising those issues earlier, because it would have changed the range.

[00:32:53] Speaker 04:
In other words, it is an alternative argument that is meaningfully raised at the earlier stage, and your failure to do so

[00:33:03] Speaker 04:
is a type of waiver forfeiture.

[00:33:06] Speaker 04:
That's a whole other question, but in any event – and I wasn't satisfied with your first answer because I don't understand it.

[00:33:12] Speaker 04:
I'm not buying your efficiency argument as a complete answer to the question.

[00:33:16] Speaker 04:
So what – is there a further answer?

[00:33:19] Speaker 05:
There's a further explanation.

[00:33:20] Speaker 05:
I hope it satisfies the court.

[00:33:23] Speaker 05:
First, I would make the observation that Mr. Miller's CCE sentence was not a guideline sentence.

[00:33:29] Speaker 05:
It was a statutory mandatory minimum.

[00:33:32] Speaker 05:
There's nothing to challenge in the guidelines that would change that.

[00:33:37] Speaker 05:
If I were to come for this court in the second appeal, which involved the second trial, and say that the jury verdict, the jury special finding of so many 30, 15 kilograms should be vacated, I would have a hard time coming up with a reason for that based on the evidence and the standards by this court for insufficiency that would prevent this court from not making fun of me.

[00:34:06] Speaker 05:
I couldn't make that argument then.

[00:34:08] Speaker 05:
I can make the argument now that the district court, when he adopts that quantity, has to justify it other than saying the jury reached that verdict.

[00:34:21] Speaker 06:
I thought he also said he heard the evidence and he thought it was sufficient.

[00:34:26] Speaker 05:
All judges hear the evidence, and all judges say that my point is that... They don't always invoke their recollection of the evidence for the finding.

[00:34:34] Speaker 06:
I agree.

[00:34:35] Speaker 05:
But the government raises an important point.

[00:34:39] Speaker 05:
For instance, we asked for specificity.

[00:34:44] Speaker 05:
The government says, well, in the appellant's brief, we mentioned Mr. Ames.

[00:34:48] Speaker 05:
Mr. Ames did testify at trial that that amount was involved.

[00:34:53] Speaker 05:
If the district court had said to me, I rely on Mr. Ames, then I would have had the opportunity to examine Mr. Ames' testimony and tell the district court that he had no idea of the quantity, and he was only telling that to the jury and court because that was part of his plea agreement.

[00:35:08] Speaker 05:
Because the government had told him the amount of drugs involved, and he had to agree to it to take the plea.

[00:35:14] Speaker 05:
That's what I would have told the district court if it had said, I rely on Mr. Ames.

[00:35:19] Speaker 05:
That doesn't go into minutiae.

[00:35:21] Speaker 05:
That only requires the district court to make one reference to a witness, and we would have responded in that way.

[00:35:26] Speaker 05:
We were denied that.

[00:35:28] Speaker 05:
We ask the court to send the case back.

[00:35:30] Speaker 05:
Thank you.

[00:35:31] Speaker 03:
Mr. Hart, you were appointed by the court to represent Mr. Miller in this case, and the court thanks you for your very able assistance in the matter.