[00:00:01] Speaker 04: Case number 17-3012, United States of America versus James Powers, appellate. [00:00:08] Speaker 04: Mr. Becker for the appellate, Ms. [00:00:10] Speaker 04: Huron for the appellate. [00:00:15] Speaker 04: Judge Tatel, members of the panel, good morning. [00:00:17] Speaker 04: I'm Robert Becker, and I represent James Powers in this appeal. [00:00:20] Speaker 04: May it please the court? [00:00:22] Speaker 04: In the mine run of asbestos cases, this was a small one. [00:00:26] Speaker 04: It was short duration, it had relatively few employees, and a small amount of asbestos. [00:00:33] Speaker 04: But because Mr. Powers' lawyer failed to marshal readily available evidence of sentencing nationwide, Mr. Powers got one of the longest sentences imposed in a 7413C1 case in a decade. [00:00:50] Speaker 04: Although the trial judge acknowledged that she had a duty to avoid sentencing disparities, Mr. Powers' lawyer gave her precious little evidence to believe that she was imposing a disparate sentence. [00:01:06] Speaker 04: But that's not the only problem for Mr. Powers. [00:01:09] Speaker 04: If counsel had looked at the cases that we have marshaled in the appendix, he would have realized that his sentencing strategy was defective. [00:01:20] Speaker 04: because according to the Sentencing Commission, although Clean Air Act cases were environmental cases. [00:01:27] Speaker 04: Judd, Tatum? [00:01:29] Speaker 03: Would you start with the government's argument? [00:01:32] Speaker 03: He's waived this? [00:01:35] Speaker 03: Certainly. [00:01:36] Speaker 04: There are three reasons we believe he did not waive the appeal. [00:01:42] Speaker 04: First, counsel was ineffective on multiple levels. [00:01:45] Speaker 04: Second, the judge in the plea colloquy mischaracterized the scope of the waiver. [00:01:53] Speaker 04: And third, the waivers and reservations in the plea agreement [00:01:59] Speaker 04: were conflicting and convoluted and would have been hard for a lawyer to understand much less a defendant. [00:02:07] Speaker 03: So certainly if he had an ineffective assistance claim, it wouldn't be covered by the waiver, that's express. [00:02:15] Speaker 03: You didn't raise that in the opening brief. [00:02:18] Speaker 03: You didn't raise that in the opening brief at all. [00:02:22] Speaker 04: We did not raise the waiver argument because we don't know whether the government is going to assert the waiver. [00:02:28] Speaker 04: And in fact, let me just finish this statement. [00:02:33] Speaker 04: Sure. [00:02:34] Speaker 04: In the U.S. [00:02:35] Speaker 04: Attorney's Manual, it talks about making a decision about whether to assert the waiver on appeal. [00:02:41] Speaker 02: I see. [00:02:46] Speaker 03: And normally we don't hear ineffective assistance claims on direct appeal anyway. [00:02:54] Speaker 04: That is correct. [00:02:57] Speaker 04: I think, but in the cases that have involved sentence appeals and ineffectiveness, what has tended to happen is that the court of appeals has, the decisions tend to say that if there's a colorable claim of ineffectiveness, then the appropriate response would be to remand the case. [00:03:20] Speaker 04: One of the reasons that this case is doing it this way is critical, I think, is this is not a case where a defendant got 20 years. [00:03:29] Speaker 04: This is a case where a defendant got 20 more. [00:03:31] Speaker 02: So here's something I don't understand about the argument, the relationship between ineffectiveness and waiver. [00:03:36] Speaker 02: So it seems to me there's two types of ineffectiveness claims. [00:03:39] Speaker 02: There's one that would say that there was ineffectiveness in connection with negotiating the waiver. [00:03:44] Speaker 02: And as a consequence of that kind of ineffectiveness, the waiver is no good because we can always raise ineffectiveness in connection with the waiver. [00:03:52] Speaker 02: And if there was ineffective assistance of counsel in connection with the waiver, then that means the waiver is not enforceable because the client would have never had a reasonable chance to understand the waiver because he was not effectively advised about it. [00:04:02] Speaker 02: But I don't think that's the kind of ineffective assistance of counsel claim you're making. [00:04:07] Speaker 02: You're making an ineffective assistance of counsel claim that doesn't have to do with negotiating the waiver. [00:04:11] Speaker 02: It has to do with conduct at sentencing. [00:04:13] Speaker 02: And as to that, there's no reason why you should wait for assertion of the waiver to raise that kind of ineffectiveness claim, because that's a claim that you're going to raise anyway. [00:04:23] Speaker 02: It doesn't have to do with getting around the waiver. [00:04:25] Speaker 02: That's just that counsel was ineffective at sentencing. [00:04:28] Speaker 02: And it's true that the way this waiver is framed, it allows you to raise ineffectiveness claims on appeal. [00:04:34] Speaker 02: The waiver just doesn't cover ineffectiveness claims by its terms. [00:04:37] Speaker 02: But I think usually when you're allowed to raise a claim on appeal, you're supposed to raise it in your opening brief. [00:04:43] Speaker 02: And this isn't the type of argument, again, that you had to wait to see whether there was a waiver asserted because this ineffectiveness claim doesn't have anything to do with waiver. [00:04:51] Speaker 04: If you look at the plea colloquy the judge said to counsel I don't it isn't clear to me whether you are waiving the right to appeal if I am [00:05:09] Speaker 04: And in response to that, defense counsel asked for a brief off-the-record discussion with the prosecutor about whether that was the case, came back and said, yes, we agree that we are waiving any [00:05:29] Speaker 04: any appeal as to your application of the guidelines. [00:05:34] Speaker 04: He didn't talk to Mr. Powers about that. [00:05:38] Speaker 04: If counsel had to discuss that issue with the prosecutor before answering the judge's question, then that certainly raises a question about whether he properly advised Mr. Powers because he never asked again to speak. [00:05:54] Speaker 02: Maybe I'm missing something. [00:05:55] Speaker 02: I don't understand that point because [00:05:57] Speaker 02: The ineffective assistance of counsel claim you're making, I think, is that counsel should have brought several cases to the attention of the district court because if the district court would have understood those cases, the district court would have applied the guidelines differently, right? [00:06:12] Speaker 02: Would have arrived at a different sentence. [00:06:14] Speaker 02: That argument, it just seems to me, [00:06:17] Speaker 02: The waiver doesn't stop you from making that argument. [00:06:20] Speaker 02: That argument just can be made on appeal, because the waiver doesn't cover an effective assistance of counsel claim. [00:06:25] Speaker 02: By its terms, it doesn't. [00:06:27] Speaker 02: So I don't understand the reason you would not have made that argument in your opening brief, because nothing about the waiver stopped you from making that argument in your opening brief. [00:06:34] Speaker 02: It doesn't cross with the waiver. [00:06:38] Speaker 04: I guess, again, my understanding of how, because I looked at the cases that have dealt with this issue and, again, looked at the U.S. [00:06:49] Speaker 04: Attorney's Manual, the waiver only becomes an issue once it's actually raised. [00:06:55] Speaker 02: So I agree with you on that. [00:06:56] Speaker 02: The waiver only becomes an issue when it's raised. [00:06:58] Speaker 02: I guess my point is this, that [00:06:59] Speaker 02: This ineffective assistance of counsel claim you're making, it doesn't matter whether the waiver is raised or not because you could make that argument. [00:07:07] Speaker 02: Nothing about the waiver would stop you from making that argument. [00:07:11] Speaker 02: That argument could have been made in your opening brief and it has nothing to do with the waiver because [00:07:16] Speaker 02: the way the waiver was framed, it just allows you to make an effectiveness claim. [00:07:19] Speaker 02: You were always free to make it, but it wasn't made in the opening brief. [00:07:23] Speaker 02: And typically that's the type of argument when it's not made in the opening brief that we deem to have been relinquished. [00:07:28] Speaker 04: On the other hand, the argument, the whole argument of the opening brief was that the judge did not see, but [00:07:37] Speaker 04: imposed a sentence that was disparate because the evidence wasn't there. [00:07:42] Speaker 00: That almost underscores the point. [00:07:44] Speaker 00: Given that you were focusing on the very question that the reply brief says the district court, defense counsel and the district court pressed ineffectively, it would have made perfect sense had you decided that that was a colorable claim. [00:08:05] Speaker 00: to raise that in the opening brief. [00:08:07] Speaker 00: It's there, as you say, on its merits. [00:08:09] Speaker 00: It's not there through the lens of effectiveness. [00:08:12] Speaker 00: And I think the question we have is, why wouldn't that be forfeit? [00:08:16] Speaker 04: Again, I guess my inclination having [00:08:20] Speaker 04: done a lot of these cases is, it's almost never raised before the appeal. [00:08:27] Speaker 04: The ineffectiveness point is you almost always raise it on 2255. [00:08:29] Speaker 00: No, no, in your opening brief. [00:08:30] Speaker 00: I'm sorry, in your opening brief. [00:08:31] Speaker 00: I understand that. [00:08:32] Speaker 00: On appeal, and we've had those where someone has raised ineffectiveness on direct appeal, and where we think there is a question of it, we've remanded to the district court. [00:08:42] Speaker 00: It can come up, but it comes up in the direct appeal when new counsel is looking at the record and preparing for the appeal and says, oh my gosh, this is a mess on some question to the extent that I think there's an effectiveness claim. [00:08:57] Speaker 00: And all of those materials were available to you at the time of the opening brief. [00:09:02] Speaker 00: They, as the colloquy has been highlighting, are not included in the appeal waiver. [00:09:09] Speaker 00: So I take your argument that, [00:09:11] Speaker 00: your response to the appeal waiver with respect to other issues is not due until the government has asserted it. [00:09:17] Speaker 00: But this is an issue in a different box. [00:09:20] Speaker 04: And I have to plead guilty to that, Judge. [00:09:22] Speaker 04: But again, I am looking at this case in terms of this was a 20-month sentence, not a 20-year sentence. [00:09:28] Speaker 04: And the time usually required to litigate an effectiveness claim would be years, not months. [00:09:36] Speaker 04: And so I'm sorry, I have short-circuited the process. [00:09:41] Speaker 04: And that's on me. [00:09:46] Speaker 03: You're into rebuttal time. [00:09:47] Speaker 03: Do you want to? [00:09:48] Speaker 03: Excuse me, sir? [00:09:48] Speaker 03: I said you're into your rebuttal time. [00:09:50] Speaker 03: I'm having trouble hearing. [00:09:51] Speaker 03: Oh, I'm sorry. [00:09:52] Speaker 03: We have this new system. [00:09:53] Speaker 03: I thought everybody could hear us now. [00:09:55] Speaker 03: I was just saying you're into your rebuttal time. [00:09:58] Speaker 03: Do you want to save it? [00:09:59] Speaker 03: Yes, I would like to. [00:10:11] Speaker 01: Good morning, Your Honors. [00:10:12] Speaker 01: May it please the Court? [00:10:13] Speaker 01: My name is Rachel Herron on behalf of the United States. [00:10:17] Speaker 01: This Court should dismiss this appeal because the defendant waived every argument that was presented in the opening brief by the explicit terms of the plea agreement below. [00:10:26] Speaker 01: To the extent this Court nonetheless reaches the merits of the claims that were raised, we believe that this Court should affirm the below-guidelines sentence for the reasons in the opening brief. [00:10:38] Speaker 01: Unless there's somewhere else that your honors would like to start, I wanted to respond to just a few points that were made by defense counsel this morning. [00:10:47] Speaker 01: In particular, I heard defense counsel offer three reasons why the appeal waiver should not apply here. [00:10:56] Speaker 01: And in the first place, I would simply note that in the government's view, because the appeal waiver in this case was explicit, because it came up multiple times in the colloquy, the appropriate place to bring any arguments with regard to the appeal waiver was the opening brief. [00:11:15] Speaker 01: But even setting that aside, responding to those arguments that only came up in the reply, the first argument that the defense counsel gave this morning... The government could waive the waiver, couldn't it? [00:11:28] Speaker 01: I believe it could, Your Honor. [00:11:29] Speaker 03: So why does he have to raise it in the opening brief? [00:11:32] Speaker 03: I mean, why can't he just wait and see if the government raises it as a defense? [00:11:37] Speaker 03: Well, I think that... I mean, I get your point about ineffective assistance. [00:11:40] Speaker 03: That's the point Judge Srinivasan was making, but... [00:11:44] Speaker 03: But am I right about that or not? [00:11:46] Speaker 03: Why does he have to raise it in his opening brief, the waiver? [00:11:50] Speaker 03: Because the government may never waive it for some reason. [00:11:52] Speaker 01: It's true that the government may not ultimately bring it up. [00:11:55] Speaker 03: So then he doesn't have to respond until the government does. [00:11:58] Speaker 01: I think that the better course would be to bring it up. [00:12:02] Speaker 03: Do we have any cases on this? [00:12:04] Speaker 01: I'm not aware of ones raising this issue. [00:12:07] Speaker 03: Maybe this is it, huh? [00:12:09] Speaker 01: In any event, Your Honor, I don't think that it needs to trouble Your Honors because even if you find that he could bring this challenge to the appeal waiver, [00:12:21] Speaker 01: Only in the reply brief we I think can dispense with the arguments that were brought and again this morning the three that I heard were first That there's an effective assistance of counsel claim and while the government agrees that an effective assistance claims were not waived by the terms of the appeal waiver That claim is nonetheless forfeit because it was not raised in the opening brief and that is one that we think Unambiguously did need to be raised in the opening brief in order to be properly raised for this court's attention [00:12:51] Speaker 02: You also agree that if it would have been raised in the opening brief that the waiver wouldn't cover it? [00:12:55] Speaker 01: Yes, that's correct. [00:12:58] Speaker 01: The second argument that I heard defense counsel make this morning was that there was a mischaracterization in the colloquy that created some ambiguity. [00:13:08] Speaker 01: The argument that I understood them to be making in the reply brief was that the district court had misstated whether the government was waiving its appeal right. [00:13:20] Speaker 01: And while it does appear that there may have been some misstatement with regard to that issue, that question, I think, is not relevant to the question before this court, which is whether the defendant waived his appeal rights. [00:13:32] Speaker 01: We think the text of the agreement is expressed regarding what appeal rights were being given up. [00:13:38] Speaker 01: And then at the colloquy itself, there were multiple occasions that are pointed out in the brief when the district court judge [00:13:46] Speaker 01: explained and then obtained Mr. Power's agreement to precisely what rights he was giving up. [00:13:52] Speaker 01: So while any confusion as to what the government was waiving may have been relevant if this case was about whether the government could bring an appeal, it's not the question before this Court. [00:14:05] Speaker 01: And then the third reason that came up in the reply brief and that I heard again raised this morning by defense counsel was the argument that the plea by its terms was confusing. [00:14:17] Speaker 01: And again, in the reply brief, my understanding of that argument was that because there was a reservation of allocution rights with regard to post-sentence motions, [00:14:32] Speaker 01: a waiver with regard to appeal that that was confusing. [00:14:36] Speaker 01: However, the reply brief acknowledges that post-sentence phase and the appeal are two separate phases of litigation. [00:14:44] Speaker 01: There's no inherent conflict between those two provisions of the plea agreement. [00:14:50] Speaker 01: And to the extent that it is an issue that could be confusing to a layperson, Mr. Powers was represented below. [00:14:57] Speaker 01: And while there is an ineffective counsel and effective assistance claim belatedly raised with regard to the array of sentencing cases that were presented, the brief never states that Mr. Powers' counsel below did not adequately explain to him what those provisions meant taken together. [00:15:19] Speaker 01: So for all those reasons, we think that this appeal should be dismissed. [00:15:24] Speaker 01: The ineffective assistance of claims should not be dealt with by this court because it's forfeit. [00:15:29] Speaker 01: Unless your honors have other questions, the government is content to rest on its briefs. [00:15:36] Speaker 03: OK, thank you. [00:15:37] Speaker 03: How much time did Mr. Becker have? [00:15:38] Speaker 03: 30 seconds. [00:15:40] Speaker 03: You can take a full minute, Mr. Becker, if you'd like. [00:15:44] Speaker 04: Thank you, Judge Tatel. [00:15:45] Speaker 04: On the issue of mischaracterization, I think there are two problems with that. [00:15:50] Speaker 04: One is the statement that the waiver was mutual. [00:15:55] Speaker 04: The other happened in the plea colloquy, and the government said that ultimately the judge corrected herself as to the issue of whether Mr. [00:16:08] Speaker 04: powers could appeal saying that if she went above the guidelines or the statutory maximum, he could appeal. [00:16:15] Speaker 04: But then, later, after that, she said, you can appeal if I go outside the guidelines that I determine are applicable. [00:16:26] Speaker 04: And the discussion is at pages eight and nine of the transcript. [00:16:30] Speaker 04: So first she said what was in the plea agreement. [00:16:35] Speaker 04: Then she said, you can appeal if I go outside the guidelines I say are applicable. [00:16:42] Speaker 04: In fact, she did go outside the guidelines, which was to go below them. [00:16:46] Speaker 04: But the point is she made two conflicting statements. [00:16:49] Speaker 04: And this court has said that in two cases, in Godoy and in Kaufman, that judges have to be pretty clear and concise and accurate in how they state these things, or misstatements will invalidate the waivers. [00:17:05] Speaker 04: So that is the main issue here. [00:17:08] Speaker 03: Mr. Becker, you were appointed by the court to represent Mr. Powers, and we thank you for your assistance. [00:17:14] Speaker 04: Thank you very much.