[00:00:04] Speaker 03:
Case number 17-3008, the United States of America versus Hayator Capote, appellate.

[00:00:11] Speaker 03:
Ms.

[00:00:11] Speaker 03:
Rowling for the appellate, Mr. Lennox for the accolade.

[00:00:15] Speaker ?:
Ms.

[00:00:15] Speaker ?:
Rowling, good morning.

[00:00:16] Speaker 03:
Good morning.

[00:00:20] Speaker 01:
At the original sentencing, the district court said that Mr. Capote's participation in the April 4th gunfight was a very important consideration in the determination of which sentence recommendation was appropriate.

[00:00:34] Speaker 01:
This court remanded so that the district court could remove the April 4th incident from its balancing scales.

[00:00:41] Speaker 01:
The district court needed to say to itself, I'm at 151 months with the April 4th incident.

[00:00:49] Speaker 01:
What happens if I take that away?

[00:00:52] Speaker 01:
Instead, the district court found that the incident had never been on the balancing scales at all.

[00:00:59] Speaker 01:
That ruling or that finding did not comply with the mandate and the law of the case, and this court should remand for a new sentencing.

[00:01:08] Speaker 04:
But it didn't have any effect on her, on the sentence, did it?

[00:01:13] Speaker 01:
Her ruling that she hadn't previously considered it?

[00:01:16] Speaker 04:
That statement had no effect on the sentence, did it?

[00:01:18] Speaker 04:
Didn't she say it didn't?

[00:01:21] Speaker 01:
What she said was that she had not previously considered the April 4th incident in determining the sentence, which contradicted her previous statements and contradicted this Court's decision.

[00:01:33] Speaker 03:
But she then said the record was not sufficiently clear.

[00:01:40] Speaker 03:
She did back off of that.

[00:01:42] Speaker 03:
I agree with you that she said she did not consider it in the first place, and she's wrong about that, and we held that she had considered it, so she had no

[00:01:51] Speaker 03:
latitude to say she did not consider it.

[00:01:53] Speaker 03:
What was before her was whether not to consider it and whether she would give the same sentence.

[00:02:00] Speaker 03:
But at the very end, she says several times that she is not considering it and backs off her saying she didn't consider it in the first place by saying the record was clearly not sufficiently clear.

[00:02:18] Speaker 01:
I read the record is clearly not sufficiently clear is agreeing with the prosecutor's statement which comes immediately preceding that that he says it's not on my impression based on the last sentencing that the court inappropriately considered anything that it should not have considered.

[00:02:37] Speaker 01:
She interrupts to say the record was clearly not sufficiently clear and the prosecutor goes on to say

[00:02:45] Speaker 01:
The court should do what it did the last time.

[00:02:48] Speaker 01:
I don't think anything happened incorrectly the last time.

[00:02:51] Speaker 03:
I agree with you.

[00:02:52] Speaker 01:
The same analysis.

[00:02:53] Speaker 03:
The government was way out of line on that, but we're looking at what the district court said and what it did.

[00:03:02] Speaker 01:
What the district court did was say, I won't consider the April 4th incident, but what it needed to do, given this court's opinion, was say, I did consider it previously, but I will subtract that now from my calculus and see if that makes any difference in a sufficient but not greater than necessary sentence.

[00:03:24] Speaker 01:
That's what the court said in its opinion, not simply don't consider it, but you considered it before, now take that away and see if it makes any difference.

[00:03:37] Speaker 01:
And that's the sentencing that Mr. Capote failed to receive based on her comments.

[00:03:45] Speaker 04:
By the way, the government doesn't make this point, but I didn't see anything in the sentencing hearing that indicated defense counsel there raised this law of case or mandate argument there.

[00:04:03] Speaker 01:
This isn't the sort of case where the relevant law needs to be brought to the court's attention, because this court had brought it to the district court's attention.

[00:04:15] Speaker 01:
So no, no.

[00:04:17] Speaker 04:
So even if it wasn't raised?

[00:04:20] Speaker 01:
Well, I don't think it's a plain error case for that reason.

[00:04:23] Speaker 01:
Even if it is a plain error case,

[00:04:26] Speaker 01:
There was an error.

[00:04:28] Speaker 01:
It was plain, given this court's decision.

[00:04:30] Speaker 01:
Oh, I see.

[00:04:32] Speaker 01:
And I think that it had...

[00:04:36] Speaker 01:
There was an unfairness, and there certainly was the appearance of an unfairness.

[00:04:40] Speaker 01:
When this court says to a judge, you considered something you shouldn't have considered, now take that out of your calculus and see where you are.

[00:04:48] Speaker 04:
But wait, is that what we said?

[00:04:50] Speaker 04:
We said we cannot conclude that the consideration of the April 4 evidence did not have a substantial injurious effect.

[00:04:59] Speaker 01:
Right, because this court can't be in a judge's head.

[00:05:02] Speaker 01:
So you know she considered it, but you don't know what weight she gave it.

[00:05:06] Speaker 01:
I see.

[00:05:06] Speaker 01:
Perhaps she gave it very, very little weight, and it had really no effect at all.

[00:05:11] Speaker 01:
Or perhaps she considered it a very important consideration and gave it a lot of weight.

[00:05:17] Speaker 03:
Well, actually, we do know that she considered it a very important circumstance.

[00:05:24] Speaker 03:
and a very important consideration in the court's determination of which sentence recommendation is appropriate.

[00:05:30] Speaker 01:
Yes.

[00:05:31] Speaker 03:
So we know she considered it.

[00:05:32] Speaker 00:
Yes.

[00:05:33] Speaker 03:
We know that she thought it was significant.

[00:05:35] Speaker 03:
Yes.

[00:05:37] Speaker 03:
But what we sent it back for and what we didn't know is how it affected the sentence she gave.

[00:05:43] Speaker 01:
Exactly.

[00:05:43] Speaker 03:
Now, it went back before her.

[00:05:46] Speaker 03:
She said, she disagreed and said, I did not rely on it the first time.

[00:05:50] Speaker 03:
She's wrong about that.

[00:05:52] Speaker 03:
We held that she had.

[00:05:54] Speaker 03:
But she did what we asked her to do, which was to re-sentence him without consideration of this April 4th purported gunfight.

[00:06:06] Speaker 01:
Well, her argument is what she actually did was what the government asked her to do.

[00:06:12] Speaker 01:
Find that she hadn't previously considered it, and so the analysis had not changed.

[00:06:18] Speaker 02:
Well, why does it matter that the government's egging her on?

[00:06:21] Speaker 02:
So what?

[00:06:21] Speaker 02:
I mean, you're right that what the government was doing was inappropriate.

[00:06:29] Speaker 02:
But the question is whether the district court sentenced without considering an inappropriate factor.

[00:06:36] Speaker 01:
I only bring that up to point out that I think that she wasn't disputing what he said.

[00:06:43] Speaker 01:
I think that she was agreeing with him.

[00:06:46] Speaker 01:
She interrupted him to agree with him and then said, I won't consider it, and I didn't before.

[00:06:55] Speaker 01:
Meaning, my calculus has not changed.

[00:06:57] Speaker 01:
The scales are exactly where they were previously, and so I will do the same thing.

[00:07:04] Speaker 01:
She needed to recognize, in her mind she needed to say, the scales are now different.

[00:07:11] Speaker 01:
How does that affect me?

[00:07:13] Speaker 01:
Does that move me to 150 months?

[00:07:15] Speaker 01:
Does it not move me at all?

[00:07:17] Speaker 01:
But she didn't engage in that kind of analysis because she disagreed with this court about whether she had considered it in the first place and she was wrong about that.

[00:07:28] Speaker 02:
She's not the first district court judge that is annoyed that we disagreed with their ruling.

[00:07:34] Speaker 01:
I'm sure not.

[00:07:35] Speaker 02:
So if we were to use that as the test, we'd be sending a whole lot of things back.

[00:07:41] Speaker 01:
The government cites to a lot of cases where district courts disagree

[00:07:47] Speaker 01:
And I think that that's fine when the district court is saying, I disagree with the appellate court's Fourth Amendment analysis, but I will do what they said to do.

[00:07:59] Speaker 01:
That's very different.

[00:08:01] Speaker 02:
She did what we told her to do.

[00:08:03] Speaker 02:
No, she didn't.

[00:08:03] Speaker 02:
The thing you're trying to ride is the government's inappropriate goading.

[00:08:07] Speaker 01:
And I don't know how you can take it, but so far, really.

[00:08:13] Speaker 01:
I'm using that to point out that she appeared to be in agreement.

[00:08:18] Speaker 01:
But I think you'll notice in my brief, there's no discussion of what the government said.

[00:08:24] Speaker 01:
It's what she said, that my analysis doesn't need to change.

[00:08:30] Speaker 01:
She did not say those words.

[00:08:32] Speaker 01:
I was going to say it.

[00:08:33] Speaker 03:
No, I think that you're running a little too far.

[00:08:36] Speaker 01:
Right, but I think that you can very fairly read her words to mean nothing is different.

[00:08:43] Speaker 01:
I disagree with what the Court of Appeals said my findings were, and so nothing is different.

[00:08:50] Speaker 01:
I won't apply it, I won't consider it now, just as I didn't consider it previously.

[00:08:55] Speaker 01:
And that's not what Mr. Capote was entitled to.

[00:08:57] Speaker 01:
It's not fair, and it certainly does not have the appearance of fairness, of reconsideration.

[00:09:05] Speaker 03:
I think she says at least three times, and I'm looking at page 12 of the transcript.

[00:09:13] Speaker 03:
But so that the record is absolutely fully clear, I am not relying on any particular role this defendant may or may not have had in connection with this shooting incident in calculating an appropriate sentence in this case.

[00:09:28] Speaker 03:
Absolutely.

[00:09:30] Speaker 01:
She says that, but then she says, and I didn't

[00:09:35] Speaker 01:
Previously, meaning I don't have to rebalance.

[00:09:39] Speaker 01:
I don't have to subtract that from my calculus.

[00:09:44] Speaker 01:
My calculus is the same as it was previously.

[00:09:47] Speaker 01:
That's where the error lies.

[00:09:53] Speaker 01:
All right.

[00:09:53] Speaker 03:
We'll give you some time.

[00:09:54] Speaker 03:
Thank you.

[00:09:57] Speaker 03:
Mr. Leonard?

[00:10:03] Speaker 00:
Thank you, Your Honor.

[00:10:04] Speaker 00:
Good morning and may I please the court, Dan Lenners for the United States.

[00:10:07] Speaker 00:
The district court violated neither the mandate rule nor the law of the case doctrine when she re-sentenced the appellant following this court's remand.

[00:10:16] Speaker 00:
She made abundantly clear that she was not relying on the April 4th shooting incident in re-sentencing the appellant, and she also set forth at length what she was, in fact, relying on in reaching the conclusion that the same 151-month bottom of the guidelines sentence was appropriate.

[00:10:33] Speaker 00:
These were the many times the appellant had been arrested, found with a gun and or drugs in his possession, and his immediate recidivism following those arrests were among the very important considerations she took into consideration in resentencing the appellant.

[00:10:50] Speaker 03:
What do you think of your colleagues?

[00:10:53] Speaker 03:
remarks, and they are throughout this transcript.

[00:10:58] Speaker 03:
My understanding of the D.C.

[00:10:59] Speaker 03:
Circuit's opinion is that the Court shouldn't speculate.

[00:11:01] Speaker 03:
Frankly, I don't think the Court speculated last time.

[00:11:05] Speaker 03:
Then he says, she goes ahead and gets ready to impose the new sentence.

[00:11:20] Speaker 03:
for the reasons excluding the gunfight.

[00:11:26] Speaker 03:
And she says, the record was clearly not sufficiently clear.

[00:11:30] Speaker 03:
Your colleague says, perhaps not, according to the circuit.

[00:11:33] Speaker 03:
Well, that's not correct.

[00:11:38] Speaker 03:
And then goes on to say, I don't think anything happened incorrectly the last time.

[00:11:43] Speaker 03:
And the same analysis, therefore, applies this time, aside from any lack of clarity, if there was any on that particular point.

[00:11:52] Speaker 00:
My colleague's comments were at best inartful.

[00:11:58] Speaker 00:
I took his words to mean... What about at worst?

[00:12:04] Speaker 00:
I took his words to mean he was encouraging the district court to impose the same sentence to once again find that the defendant possessed and was willing to use guns as part of his illegal... And he had lots of

[00:12:19] Speaker 03:
reasons for urging that and she found the other reasons.

[00:12:25] Speaker 03:
So there was absolutely no necessity and at least I think it was highly improper.

[00:12:35] Speaker 00:
I agree that my colleague should not have questioned this court's opinion at all.

[00:12:42] Speaker 00:
He certainly didn't in his sentencing memo, in which he specifically said that the court should reach the same conclusion, taking out any consideration whatsoever of the April 4th shooting incident.

[00:12:53] Speaker 00:
He gave the court ample reasons to impose the same sentence and the district court did not err because she relied on those other reasons and not the April 4th shooting incident and re-sentencing.

[00:13:04] Speaker 02:
So you understand the impropriety that we're concerned about is not that people may disagree with our decisions.

[00:13:09] Speaker 02:
That's old news.

[00:13:12] Speaker 02:
The impropriety is you're confusing the public and they're trying to understand how the judiciary works and what we're doing and if it looks like

[00:13:21] Speaker 02:
Prosecutors Cavalieri saying suggesting just forget what the district of the Court of Appeals said that sends the wrong message You can't forget what the district court that the Court of Appeals said whether you want to or not And you shouldn't be suggesting to litigants who were before the trial court that there's any possibility that that's going to happen

[00:13:40] Speaker 00:
I agree, Your Honor, and the prosecutor should have said at sentencing what he said in his sentencing memo, which is the circuit said not to consider the April 4th shooting incident.

[00:13:50] Speaker 00:
You should not consider it, but you should nevertheless reach the same conclusion.

[00:13:54] Speaker 00:
If there are no further questions.

[00:13:56] Speaker 03:
All right.

[00:13:56] Speaker 00:
Thank you.

[00:13:58] Speaker 03:
Does Miss Rowland have any time?

[00:14:02] Speaker 03:
All right.

[00:14:02] Speaker 03:
Why don't you take a minute?

[00:14:06] Speaker 01:
I'd like to try to elaborate on my earlier point that it's very different when a district court disagrees with an appellate court about, for example, the interpretation of the Fourth Amendment, and then says, but I'll do what I'm commanded to do.

[00:14:26] Speaker 01:
In this case, it's a finding, and it really does.

[00:14:29] Speaker 01:
It has to do with what's in her head.

[00:14:32] Speaker 01:
And of course, no one but she can know that.

[00:14:36] Speaker 01:
But, but when the judge is saying, I didn't do what the court of appeals said,

[00:14:47] Speaker 01:
That does, that's a problem within this court's remand authority and it's a problem with the public's perception and very different from disagreeing with a legal interpretation.

[00:15:02] Speaker 01:
She needed to make clear to Mr. Capote and to the public that she was following this court's mandate by reconsidering all of the factors having subtracted

[00:15:17] Speaker 01:
what she had previously considered.

[00:15:19] Speaker 01:
All right.

[00:15:20] Speaker 01:
Thank you.

[00:15:20] Speaker 01:
Thank you.

[00:15:32] Speaker 03:
Okay.

[00:15:33] Speaker 03:
Would you call the next case?