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Case number 16-3052, United States of America versus Guadalupe Galavez Appellate.

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Miss West for the appellate, Mr. Smith for the appellate.

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Good morning.

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Good morning.

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May it please the court.

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I'm Kira West and I represent Mr. Guadalupe Galavez.

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The district court here abused its discretion and procedurally erred by giving a sentence that was greater than necessary.

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She erred in two ways, the district judge.

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She did not consider the most relevant section of Title 18, 3553A, future dangerousness, and she created a disparity among similarly situated defendants.

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When you say she didn't consider it, what do you mean?

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She addressed it.

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I don't believe she did address future dangerousness, Your Honor, and that is what we've stated in our brief.

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I know that she did state in her opinion that she considered the nature and circumstances, but there is an actually in 3553, A to C, there's a section that says the court should consider to protect the public from further crimes of the defendant.

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This is the section that I don't believe the court addressed.

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Moreover, she did not address.

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So let me ask you, in the pro se brief, the argument is made that since

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He was likely to be deported upon completing his sentence.

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If he were released, he would not be a danger.

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Was that argument ever made to the district court?

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I don't believe the argument was made to the district court, Your Honor.

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And I know that the trial counsel did put that in the subsequent briefing that the court asked for.

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But he didn't go on and say, so he wouldn't be a danger to the community.

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Trial counsel only said that it was likely that he would be deported to Mexico.

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So I think that what you, Your Honor, have done is implied that that's the case.

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And that's true.

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But what we're saying here is not only did the court not consider that section of 3553, but that she didn't consider what's mandatory under Dillon, the note to 1B1.10,

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where it says specifically in subsection little two, the public safety consideration the court shall consider.

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the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment.

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And that's what the court is doing here in the 3582.

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It's not a resentencing.

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We're not looking at the whole sentence.

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We're not trying to renegotiate the plea.

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It's not anything like that.

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We're just trying to make an adjustment to the sentence.

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And Ms.

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West, the government points out, I mean, your argument is there was no violence, there were no guns, and the government points out where the district judge considered the harm to the community of the dissemination of these kinds of narcotics in these quantities.

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And the government, at least, sees that as addressing this question about whether this is the person, whether the kind of offense this person was involved with, in fact, poses a danger.

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You're correct, Your Honor.

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The prosecutor does suggest that the court, and the court did say that this was destructive to the community, but destructive to the community is not the same as dangerousness.

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It's a totally different concept.

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And that's why I think any district judge could say, okay, we consider the nature and circumstances of the offense and the history and characteristics of the defendant and be done with it.

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They do that when they do the initial sentencing.

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The problem with the 3582 re-sentencing, if you could use that phrase, is that it requires a district judge to do more.

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And the government relies in part, I think, on the Jones case, which is a total outlier and can be distinguished from Mr. Galaviz's case, not only Mr. Galaviz's case, but every case in this district

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So let me just be clear.

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The district court originally, in sentencing, made a lot of findings, correct?

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Yes, Your Honor.

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She incorporated those findings in what you're referring to as this re-sentencing.

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Yes, Your Honor.

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And the issue before her was whether or not she should adjust that agreed-to sentence, which she imposed,

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based on this reduction by the Sentencing Commission.

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Yes, Your Honor.

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And she asked for further briefing on that, didn't she?

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Yes, Your Honor.

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And yet nobody ever raised this particular point when the whole point of sentencing, isn't it, was to consider, among other things, this man's danger to the community.

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Not only should she have considered it, it's the most important thing.

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But nobody ever mentioned it, even though she asked for additional briefing by the party.

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So obviously they didn't think it was very important, or they thought she had already considered it.

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That's what I'm trying to understand in your argument.

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I can't speak for the government, only to say that they didn't raise that because there was no danger.

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Mr. Galaviz, and this is unique for a drug case.

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No, I'm saying the defense never raised that.

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I understand, Your Honor.

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I understand.

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And I'm just getting to the facts.

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There were not dangerousness facts that the government could point to, but the defendant clearly should have said to the trial judge, there's a lack of what I said in my appellate brief.

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There's no guns.

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There's no force.

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there's no threats or intimidation.

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But Ms.

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West, aren't we looking, this is not a sentencing or re-sentencing.

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This is only, the subsequent proceeding that's on review here is only addressed to whether the sentence needs to be adjusted.

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That's correct.

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In view of intervening change in law.

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And is there anything about that intervening change that would affect the judge's underlying determination about dangerousness or not?

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I do believe so, Your Honor.

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How so?

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I think that 3582 requires the court in subsection two, upon motion of the defendant, the court may reduce the term of imprisonment.

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So it's discretionary.

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But with the advent of the Sentencing Commission's 1B1.10 admonition in the comment,

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It makes, it adds an extra layer, if you will, for the district court to consider the seriousness of the danger to any person or the community by letting this person have a lesser sentence.

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And I think it's important to note that Mr. Galloway's got a sentence initially of 15 years, and his motion for reduction of sentence merely asked for the 12 months off, which would put him to 168 months from the original 180 months that he received.

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And 3582C requires the district court to consider factors in 3553A to the extent that they are

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So Judge Rogers is absolutely correct in saying the defense did not raise this very serious issue, but the trial judge is required under 3582 to consider this on her own.

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Actually, our case law gives the district court a little more leeway, isn't that correct?

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The district court doesn't have to go down each sub-part and sub-sub-part of 3553A.

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Yes, the case law in the circuit, Your Honor, is that the judge, a district court, does not have to consider each and every factor under 3553A.

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But what the statute says that

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that court shall consider the factors set forth to the extent that they are applicable.

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And Mr. Gallabies is arguing- This is a dangerous man, says the district court.

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All right, the government agreed to this plea agreement with a sense of what was it, 180.

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And, you know, that's understood.

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So the only issue now is should she retroactively allow this adjustment?

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I don't believe because he got 180 months, it means that he's a dangerous individual.

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He was given 180 months based on the amount of cocaine and heroin that was involved in this case.

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And that's the distinction that we're trying to make in our brief.

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Actually, this was a plea that involved distribution.

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Yes, Your Honor.

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Not just possession.

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That's correct.

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And conspiracy.

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It's the two counts.

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That's correct.

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So you don't think there's any dangerousness lurking around in there?

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I didn't say that there's no dangerousness.

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But for this kind of case, I think it's unusual in a drug case of this magnitude that there was no threats or violence or guns, which is why this court in Jones said that the court exercised its discretion correctly.

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You know, this is a very experienced trial judge, all right?

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I agree.

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I've seen thousands of distribution cases, very familiar with the harm caused by distribution of unlawful drugs in the District of Columbia.

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She accepted the plea agreement, all right?

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And the notion that she had her head in the sand as to dangerousness just boggles the mind.

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I agree with you.

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So if somebody thought that she should have reconsidered that, addressed it again, seems to me it's just crying out for somebody to say to the judge, you have to do this all over again.

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You have to reconsider.

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And we're not asking for the court to, as I said, re-sentence or reconfigure the plea or anything of that nature.

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Yeah, but what rule are you asking for from this court?

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I'm saying that 3582, which is just for imposition of a sentence, requires the court to consider the factors in 3553 that are most applicable.

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And that's where we say,

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that the district judge missed the boat here.

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And I agree with you, Judge Rogers.

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Judge Collier-Arquitelli is very fastidious, very meticulous about everything that she does.

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And I have great respect for the court.

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Our only argument is that in this kind of case, unlike Jones, which I think we have to distinguish it, the defendant there was part of the Rayful Edmonds conspiracy.

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In the court,

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specifically mentioned the district court in Jones and this court affirmed that the court exercised his discretion properly because he did mention dangerousness.

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Let me ask you, Ms.

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West, for purposes of the disparity calculus under 3553A-6, what's the appropriate baseline?

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What do we look to?

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And in particular,

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Does that apply to co-defendants within a single case before a single judge?

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Does it apply across jurisdictions?

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Does it apply nationwide?

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In trying to advance the statutory objective of avoiding disparities among and between sentences, where do we look?

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How do we do that work?

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Yes, Your Honor.

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Certainly, you would look at similarly situated defendants in this case.

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And also, the statutes is for- What if none of the other defendants have been sentenced yet?

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How do you take into account unwarranted disparity?

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If he's the first person in the whole group that gets sentenced,

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Then you would go to the, I would go to the Sentencing Commission's website and look at other 3582 motions with related drug cases.

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Statistically, they'll say, I think the recent statistics are 75% have been given.

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Well, the mandatory minimum was one campus 10 years, and the mandatory minimum on the other campus, five.

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That's correct.

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Which adds up to 180 months.

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Yes, Your Honor.

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How many cases, in your brief you didn't mention, as I recall, you didn't mention other cases and other defendants.

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that were subjected to those two mandatory minimums and their sentence compared to your client's or this defendant's?

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I did mention, Your Honor, a defendant by the name of Amaya Ortiz who had not been sentenced before.

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I know that, but I'm talking about you can't compare his sentence

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or the judge can't be expected to anticipate what's going, that individual's sentence at the time that the judge is sentencing this defendant.

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So the only comparison that was available would have been the, you know, the mind run of cases that have gone before.

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But your brief doesn't tell us anything about that.

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You're correct.

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My brief does not.

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I know that there- But why is it at the end of it?

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I'm sorry, sir?

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Why isn't that the end of it regarding disparity, unwarranted disparity?

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Because the district judge, although she had not yet sentenced Amaya Ortiz, she had taken his plea, and his plea involved 50 kilograms of cocaine, the factual basis.

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But no heroin.

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But no heroin, that's correct.

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And the defendant here had both cocaine and heroin.

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Right.

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So doesn't that

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Disposable matter too, because it's not an unwarranted disparity.

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There's mandatory minimums on those counts.

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We believe, and the record shows that there are other, especially at Maya Ortiz, they were subject to mandatory minimums.

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And we believe that it's a disparity because not only, and I mentioned this in my brief, did Mr. Gallabies's PSR... The disparity may have been that the other defendant waiting sentence got too little.

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I mean, he wouldn't complain about it, but his sentence was too short.

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That's the disparity.

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Why don't we hear from the government?

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Good morning.

[00:15:55] Speaker 05:
Good morning.

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May it please the court.

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Peter Smith on behalf of the United States.

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District court did not abuse its discretion or otherwise err in failing to reduce appellants' sentence under the 3582 motion.

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Appellants' principal argument this morning was that the district court didn't consider future dangerousness.

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And I guess I'd have several responses to that.

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First of all, in our view, it did consider that by

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explaining at length appellants' egregious offense conduct, including distributing 22 kilograms of heroin.

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In fact, in the government's factual proffer, the trial prosecutor explained that that was so much heroin that appellant was

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delivering to Washington DC and New York City that it wouldn't fit in the vehicle they usually used to deliver, that the conspiracy had in the past used to deliver the drugs.

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This is a huge amount of heroin.

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The district court judge recognized that, said that these were dangerous drugs that were a danger to the community and therefore did address future dangerousness.

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But in any event,

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This court has made it clear in cases like Locke and similar cases that the court doesn't have to specifically address each factor.

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I'm sort of puzzled by that, Mr. Smith.

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If a factor, and I'm not saying this one is, but for example, disparity among defendants given a Maya Ortiz and the fact that these two are involved in the same operation, you might think that it would be particularly important to bear in mind how you're going to treat this reduction question across the group of defendants.

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I would think that if the facts present an issue, that would be a case in which you would expect the judge to look at it.

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In other words, that are precedent about you don't have to consider every single factor is more like, yeah, in cases in which it's not really in the mix.

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Do you understand that differently?

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The judges pick and choose among 3553, like, I don't really like those factors.

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I'm not going to consider them.

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I think that the court, you know, I think that what is required under the statute and cases like Locke recognize that what the statute requires is that the court consider these things, not that the court, or that the court has a reasoned basis for its decision.

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And considering it may be, as in a case like Locke, simply adverting to the factors.

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The court can say, in a sense it's a... You said not that they have a reasoned basis.

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I'm sorry?

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You said it doesn't require that they have a reason?

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No, it does.

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But the claim of error is that the court committed a procedural error.

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So the question before the court isn't whether the district court made the right decision or the decision that this court would ultimately come to.

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The question is, did it make a procedural error?

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Did it either ignore the 3553A factors altogether?

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Did it do something else that was procedurally improper?

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And LOC stands for the proposition that so long as the district court looks at the factors, i.e.

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says, I've heard the party's arguments, I've looked at the statute, here's what I think, that's sufficient.

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So that would be sufficient here.

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And as to the other portion of... What is your position on what accounts for the difference between the minorities receiving this down tick and Mr. Gallaby's not?

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I think there's two responses, Your Honor.

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One is the great quantity of heroin that appellant distributed.

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Appellant was charged with two offenses and convicted of those through his plea of guilty.

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And my RTs only had one offense that involved cocaine, not heroin.

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22 kilos of heroin, as I mentioned before, is a huge amount.

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And the prosecutor and the district court judge in denying appellants' motion for a due sentence both referenced that amount and explained why that was important.

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I mean, why that offense conduct was unusually egregious.

[00:20:09] Speaker 05:
And I guess the other part of my answer to the court's question would be that the probation office did not recommend a sentence reduction in a policy case.

[00:20:18] Speaker 05:
And it either did or it was agnostic.

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It didn't recommend, but it was at least agnostic with respect to MIORTs.

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It didn't file a pre-sentence report opposing in the co-defendant's case, and it did in this case.

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There was a new pre-sentence report that was prepared, and the conclusion of that report is that appendix page 34 was a recommendation against.

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I take the principal reason to be the great quantity of heroin that the appellant distributed, which distinguishes him from Amaya Ortiz.

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So, I mean, I guess this would be my first level answers to the court's question.

[00:21:01] Speaker 05:
In the background, as the court suggested a little bit earlier with the appellant's counsel, is that it seems to me that

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What the guidelines are aimed at doing and what the statutory scheme is aimed at doing is normalizing sentences across the country, right?

[00:21:15] Speaker 05:
Not necessarily within a case where you have these huge drug conspiracies that involve 20 or 30 defendants.

[00:21:23] Speaker 05:
At least the guidelines, the guideline range, the point of the guideline range is to look at drug conspiracies across the country, right?

[00:21:34] Speaker 05:
Or at least across the jurisdiction.

[00:21:35] Speaker 03:
I don't take it that your position is that the sentencing disparity concerns don't apply within one operation, but that there may be relevant differences within an operation of the different roles.

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As you're pointing out here, the different types of drugs that

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of which there's evidence different people are dealing in.

[00:21:57] Speaker 03:
But the disparity analysis, it would seem, would also apply there.

[00:22:01] Speaker 05:
It might well be met.

[00:22:03] Speaker 05:
Sure.

[00:22:03] Speaker 05:
It's relevant.

[00:22:04] Speaker 05:
And I guess the overall question or issue that actually supports the government's position is that ultimately in sentencing, because the guidelines are non-binding, is the court has great discretion in sentencing, of course.

[00:22:18] Speaker 05:
And it can consider all kinds of things.

[00:22:20] Speaker 03:
But one would want to have a rationale, for example, if it had been otherwise that Galavis got the downward shift and Amaya Ortiz did not, that might raise concerns, no?

[00:22:33] Speaker 05:
I mean, the court can, certainly I would agree the court can consider that, and that goes to that fact.

[00:22:38] Speaker 03:
I mean, we would want to have a base why that treatment was different.

[00:22:43] Speaker 05:
I think the district court would, but upon review, I don't think that it's this court's task to analyze that rationale.

[00:22:53] Speaker 05:
I think that appellant's claim of procedural error is such that this court would look to whether the court looked at the factor at all.

[00:23:02] Speaker 05:
And if it did, and it gave a reason basis.

[00:23:06] Speaker 03:
Exactly.

[00:23:06] Speaker 03:
So we would want to perceive the rationale.

[00:23:08] Speaker 03:
We're not redoing it, but we would want to at least perceive the rationale.

[00:23:12] Speaker 05:
That at least it addressed the factor, or the factors in general.

[00:23:19] Speaker 05:
And Locke would say that the court can address the factors in general.

[00:23:22] Speaker 05:
It doesn't have to go through each one.

[00:23:24] Speaker 05:
And it doesn't have to articulate its rationale in the way that either this court or our appellant would want.

[00:23:31] Speaker 05:
And what I mean by that is if the court doesn't say, okay, now I'm going to address future dangerousness, if it, as it did here, spends, you know, 10 or 15 minutes during the sentencing hearing or spends two or three pages of its opinion discussing

[00:23:45] Speaker 05:
The nature of opponents offense conduct that does go to future dangerousness, but it doesn't have to use the language that opponent wants in articulating its rationale.

[00:23:55] Speaker 05:
So this court simply looking at whether the court looked at the factors, which here it did.

[00:24:02] Speaker 05:
And in fact, you have 8 or 10 page.

[00:24:04] Speaker 05:
written opinion from Judge Collard to Cattelli explaining that rationale at length.

[00:24:11] Speaker 03:
Just circling back, didn't the probation office oppose the downward adjustment here because it thought that Galavis wasn't legally eligible for it?

[00:24:21] Speaker 03:
Because he thought that the judge went off the guidelines in a way that just took it out of the rubric?

[00:24:28] Speaker 05:
I don't think that, or at least I didn't read it that way.

[00:24:32] Speaker 05:
Again, it's at page 334 of the Joint Appendix.

[00:24:37] Speaker 05:
And when you get to the portion, there's a paragraph that says, you know, the recommendation, the heading is something like the recommendation, and the first sentence is, you know, the probation office doesn't recommend a reduction for appellant.

[00:24:50] Speaker 05:
And then I think that it talks about, or my recollection is it talks about

[00:24:54] Speaker 05:
The quantity of it gives a number of reasons, but it talks about the quantity of drugs in his offense conduct So I didn't take that to be the reason The court doesn't have any other questions we would urge the court to affirm the judgment of the district court.

[00:25:12] Speaker 04:
Thank you very much Thank you Thank you your honor with regard to

[00:25:24] Speaker 04:
the court asking questions about disparity.

[00:25:27] Speaker 04:
It's important that the appendix, the sealed appendix on page 331 in the statement of reasons that the court initially did at the sentencing in February of 2014, forgiving her reasons for her sentence, she did not check the box to protect the public from further crimes of the defendant, which I'm inferring from that, that she did not consider, again, future dangerousness.

[00:25:54] Speaker 04:
Also, with regard, I pointed out in my brief with the disparity with the role in the offense, Mr. Amaya Ortiz was also found as a leader or organizer.

[00:26:06] Speaker 04:
And our argument is that they were similarly situated, even though, as Judge Randolph points out, the drugs were different.

[00:26:15] Speaker 01:
The- She didn't check the box.

[00:26:18] Speaker 01:
Do you think that's significant?

[00:26:20] Speaker 01:
I do, Your Honor, because the statement of reason- If she had checked the box, I think

[00:26:24] Speaker 01:
it would have been era, wouldn't it?

[00:26:26] Speaker 01:
This guy's going away for how many years?

[00:26:30] Speaker 01:
15 years, right?

[00:26:31] Speaker 04:
Yes, sir.

[00:26:32] Speaker 01:
And then immediately upon his release from prison, he's going to be extradited to Mexico, right?

[00:26:38] Speaker 01:
Yes, sir.

[00:26:39] Speaker 01:
To Mexico.

[00:26:40] Speaker 01:
So if public means the public in the United States of America, he doesn't pose a risk to anybody.

[00:26:51] Speaker 01:
because he's going to be serving 15 years and then get deported.

[00:26:54] Speaker 01:
So how could she possibly have checked that box?

[00:26:59] Speaker 04:
I think that there is a risk to the public because of the ease with which Hispanic Mexicans come into the United States over the border in Texas.

[00:27:07] Speaker 01:
Oh, he might come back.

[00:27:09] Speaker 01:
Right.

[00:27:09] Speaker 01:
Sneak back.

[00:27:10] Speaker 04:
Finally, I'd ask the court to look at the dissenting opinion in piles that was written by Judge Williams versus the majority opinion in Jones, which was also written by Judge Williams.

[00:27:20] Speaker 04:
And it shows in piles why Judge Williams dissented.

[00:27:23] Speaker 04:
There was no discussion about the dangerousness.

[00:27:26] Speaker 04:
And in Jones, how the district court did discuss it.

[00:27:29] Speaker 02:
You know, I think it's significant, and that's what I've been trying to find, but on JA-221, the district court is specifically advised about deportation, all right?

[00:27:44] Speaker 02:
And saying that his client doesn't believe he's going to be deported.

[00:27:50] Speaker 04:
He was here legally, Your Honor.

[00:27:52] Speaker 04:
He was a legal resident alien.

[00:27:53] Speaker 04:
In the Green Court.

[00:27:55] Speaker 04:
Yes, Your Honor.

[00:27:55] Speaker 02:
And so he says, the defendant has not asked me to ask the court for a reduction under Smith.

[00:28:06] Speaker 02:
My only point is this whole issue was alive and nobody made these types of arguments.

[00:28:15] Speaker 04:
I don't disagree with the court.

[00:28:17] Speaker 03:
Let me just ask you, Ms.

[00:28:18] Speaker 03:
West, before you sit down.

[00:28:19] Speaker 03:
The first round of briefing from August of 2016 to January 2017, that's been overtaken by the later briefing, or is that still operable?

[00:28:31] Speaker 04:
It's actually still operable, I guess you'd say.

[00:28:34] Speaker 04:
My brief was just a supplement.

[00:28:36] Speaker 04:
That was done before I was appointed to the case, Your Honor.

[00:28:41] Speaker 04:
Finally,

[00:28:43] Speaker 04:
I love to give analogies, because I do mostly trial work.

[00:28:46] Speaker 04:
And if I made this court a pot of spaghetti, and I put peppers, onions, tomatoes, and tomato sauce in it, and said, here's your spaghetti, I'd be missing the noodles.

[00:28:56] Speaker 04:
And that's all our argument is, is that the court.

[00:28:58] Speaker 02:
Of course, if you're talking about spaghetti, we get your point.

[00:29:06] Speaker 02:
Thank you, Your Honor.

[00:29:07] Speaker 02:
We'll take the case under advisement.