[00:00:01] Speaker 02:
Case number 17-3039, United States of America versus John Han Lee Appellant.

[00:00:08] Speaker 02:
Mr. Kramer for the appellant, Mr. Jones for the appellee.

[00:00:12] Speaker 02:
Mr. Kramer, good morning.

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

[00:00:15] Speaker 00:
May it please the Court?

[00:00:18] Speaker 00:
There's a two-fold argument, I think, why the appellate waiver should not be given effect in this case.

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In Guyon, this Court said, for a waiver to be knowing and intelligent, the Court must assure itself that the defendant is aware of and understands the risks involved.

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In the context of a plea bargain, such a determination is usually made at the plea hearing, in which the Court can fully explain the consequences by informing the defendant.

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Obviously, there is no decision of this court that upholds a plea waiver where the defendant was not informed at the plea hearing about the waiver, asked if they understood it, and assented that they had understood that.

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So the failure of that to be done in this case, and the government obviously had the chance to tell the magistrate judge who took the plea,

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that it was not mentioned nor was it mentioned that the sentencing affected the sentencing the district court said you can appeal this sentence.

[00:01:15] Speaker 04:
Would your rule mean therefore that any time the appeal waiver is not mentioned at the plea hearing that it's automatic reversal?

[00:01:25] Speaker 00:
No, it could be mentioned it's a sentencing hearing.

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The judge could say at the sentencing hearing, now you've waived your plea, you understand that.

[00:01:33] Speaker 04:
Well, why would that matter?

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Isn't the sentencing hearing too late for that?

[00:01:37] Speaker 00:
Well, I was going to, I'm sorry, I meant to say if the defendant, the defendant could respond in two ways, I think.

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Could say, oh no, I didn't have any understanding of that, at which point I think, yes, it would,

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not be given effect, or the defendant could say then, yes, I know I did that, at which point it would be given effect.

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But I think where it's totally unmentioned, both at the plea and the sentencing, in fact at the sentencing he was told the opposite, that he could appeal,

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So, I think it, yes, where it's never explored, it would be inconsistent with Guillen to say that it can be given effect.

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And there is no case of this court where it has been given effect, where it was not explained to the defendant at the plea hearing.

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Do we have a case where the defendant also did not attempt to withdraw his plea, replying

[00:02:28] Speaker 02:
No, that's true.

[00:02:32] Speaker 00:
But there's another reason I think that in this type of appeal a plea waiver can't be given effect.

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The claim in this appeal is that none of the conditions of supervised release were mentioned in the oral sentence, which is the sentencing.

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and yet they were added on to the written judgment.

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A defendant, it seems to me the whole concept of an appeal waiver is you're given an opportunity at the district court to argue your points, the district court hears your points and rules on them, and you accept that ruling by waiving your right to appeal.

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But when you've never had a chance to argue the points,

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That's antithetical, I think, to an appellate waiver.

[00:03:14] Speaker 02:
You were given— So why didn't he move to withdraw his plea then?

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I mean, we're a step removed in this case from the error we're supposed to find.

[00:03:23] Speaker 02:
The error, according to you, is in the sentencing.

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I mean, that's where—

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where the harm occurred.

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In other words, by not moving to withdraw your plea, it seems you're saying he wasn't harmed by the failure to explicitly say you have waived your right to appeal.

[00:03:46] Speaker 00:
No, I think the harm was not at the sentencing, actually.

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The harm was at the inclusion and the written judgment of terms that were never mentioned at the sentencing.

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And he doesn't, he's not asking the withdrawers, withdrawal of the plea wouldn't cure that.

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The only thing that would cure that is this court didn't love an automatic rule.

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It said it wasn't mentioned that the oral sentencing has to be deleted from the written sentencing.

[00:04:13] Speaker 04:
Back on the appeal waiver, if I could.

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The rule, as you know, says a variance from the requirements of this rule is harmless error if it does not affect substantial rights.

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And a number of courts, as you also know, have looked into, well, if the appeal waiver wasn't mentioned in the plea colloquy, we'll look for other evidence of whether the appeal waiver was nonetheless knowing, intelligent, and voluntary.

[00:04:43] Speaker 04:
And that other evidence could include the written agreement

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The rest of the colloquy, which here the judge said, have you gone over everything carefully?

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He said yes.

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Have you discussed it with your lawyer?

[00:04:56] Speaker 04:
Yes.

[00:04:57] Speaker 04:
doesn't that show, even though there was a variance, as the rule says, from the requirements, that it was knowing, intelligent, and voluntary?

[00:05:05] Speaker 00:
I guess two things.

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First of all, he wasn't asked if he understood it or if he was waiving, if he agreed to waive any of those rights.

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He was asked if he read it, yes.

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But the whole point of a knowing and intelligent waiver understands the risks involved.

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He wasn't asked anything

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He wasn't even asked if he understood the plea agreement.

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He was asked if he had read it and gone over it with his lawyer and had any questions about it.

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Yes, he was asked that right, but he wasn't asked.

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Do you understand the terms the judge?

[00:05:35] Speaker 04:
The judge asked him about only the question.

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Do you have any?

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Do you have any questions about it was question about your understanding of it, but.

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I don't think any court has affirmed on such a record, though.

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Let me put it that way.

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But I don't think that gets to the fundamental other argument, which is that the whole purpose of an appellate waiver is not the whole purpose, but the underlying

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I think the underlying basis is that you're given a chance to argue your points to the district court and you take the district court may rule one way or the other and you've agreed to accept that.

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But in a case like this where the argument is that the written judgment contains terms that were never mentioned at the sentencing and therefore you never have... That's blurring the two issues, I think.

[00:06:20] Speaker 04:
I mean, I'm trying to keep separate the appeal waiver from the error that occurred

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in the sentence, in your view.

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And I don't think you can when the claim is that the written judgment contains terms, not the oral sentence, because the waiver of appeal, like I said, is based on the fact that you get this opportunity to argue your points to the district court.

[00:06:40] Speaker 01:
It can't be, though, that your

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claim rests on opportunity, because he did have an opportunity in the sense that he was before the magistrate for the plea, before the judge for sentencing, he had an attorney.

[00:06:55] Speaker 01:
It's that, I think your point is that under our precedent, Rule 11 requires this active role by the district court judge or the magistrate judge upon consent.

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This court would not find harmless error.

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Isn't that your argument?

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I think that's the first argument, yes, absolutely.

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And in Godoy, this court said in the government has a chance to correct any error at the Rule 11 and make sure that the appellate waiver.

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But I think when I say opportunity, what I mean is there was no opportunity to say

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These are improper conditions of supervised release, so they shouldn't be imposed.

[00:07:37] Speaker 00:
That's what I meant by opportunity.

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He had no opportunity to explain to the district court any objections to the terms that appeared in the written judgment.

[00:07:45] Speaker 04:
We don't get to that if the appeal waiver covers this.

[00:07:48] Speaker 00:
Well, that's the reason I think an appeal waiver can't cover something that an appeal waiver, I understand, can cover

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Anything the judge says it's sentencing.

[00:07:58] Speaker 04:
Let me ask it this way.

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If the appeal waiver is valid, are you still arguing that you can, it doesn't cover this claim?

[00:08:06] Speaker 00:
Yes.

[00:08:07] Speaker 00:
Yes, it can't cover this claim because the defendant never had the opportunity to, so it may be a matter of semantics, let me put it that way.

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In my mind, that would be invalid.

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Right.

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It could be, you could use the word valid, but it can't cover this situation.

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And I understand that the court has set out three circumstances, but those were never said to be exclusive.

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And here you have a situation where it's sentencing, when I say no opportunity, the fact that none of these conditions were ever mentioned in sentencing, the defendant had no opportunity to address any of them.

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Two of them were clearly

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never even mentioned the special conditions of financial disclosure and financial restrictions.

[00:08:53] Speaker 01:
But let me ask you, aren't you insisting upon this active inquiry by the judge or the judicial officer?

[00:09:01] Speaker 01:
Because the pre-sentence report did mention these conditions.

[00:09:07] Speaker 01:
The conditions are set out in the Commission guidelines.

[00:09:12] Speaker 01:
your client had been on supervised release for four years, so he knew what I'll call standard conditions, and to the extent he was on notice.

[00:09:28] Speaker 01:
Now, I want to clarify.

[00:09:29] Speaker 01:
You say that the defendant was never given the opportunity to see the pre-sentence report sentencing recommendation, but was he not?

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given the opportunity to see the part where the report refers to these financial conditions.

[00:09:48] Speaker 00:
So, no, those would have been in the recommendations section, which was never provided to him in direct conflict with the rule, rule 32-me.

[00:09:58] Speaker 01:
So then, on that basis, it's only the two financial conditions, I'll call the special conditions, that, of which he had no notice.

[00:10:07] Speaker 00:
I believe they were mentioned in the pre-sentence report, but the conditions that appear in the written judgment were likely, I say likely because we haven't seen it, were likely contained in the confidential recommendation.

[00:10:23] Speaker 00:
do disclose that.

[00:10:24] Speaker 00:
They're always contained in their written recommendation.

[00:10:28] Speaker 00:
I do want to correct one thing, though, I think.

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He was on pretrial release for four years.

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Those were much different conditions than supervised release conditions.

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Those were just pale.

[00:10:39] Speaker 01:
I agree, but some of them are just standard.

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I mean, report.

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And I haven't challenged those.

[00:10:46] Speaker 01:
No, I know.

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But my point is there's a lot of overlap.

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And the rest of the conditions are written out.

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in the commission guidelines.

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There's actually, I think, very little overlap.

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The reporting conditions on pretrial release, and I don't have to... Well, don't commit another crime.

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Don't use illegal drugs.

[00:11:06] Speaker 01:
I mean, those are just... Those are, yes.

[00:11:08] Speaker 00:
And I have not challenged those, either.

[00:11:09] Speaker 01:
Right, I know.

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And nor did I say that they weren't mentioned at the sentencing.

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All I was trying to acknowledge is that your client was familiar with the notion that

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release might entail conditions.

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Yes.

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And presumably he knew as well or is deemed to know that the guidelines include a list of conditions.

[00:11:36] Speaker 01:
I'm just trying to understand where we are.

[00:11:38] Speaker 01:
So doesn't your argument have to be that Rule 11 contemplates this active inquiry by the district court judge?

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It's not enough simply to say to the defendant, have you read it?

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Do you understand it?

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Do you have any objections?

[00:11:54] Speaker 00:
You mean the pre-sentence report, or I'm sorry, the read and understand it meeting, the plea agreement?

[00:12:00] Speaker 00:
I'm sorry.

[00:12:00] Speaker 01:
I was talking about the plea agreement.

[00:12:01] Speaker 01:
I wasn't clear in my question.

[00:12:03] Speaker 00:
I'm sorry.

[00:12:04] Speaker 00:
Yeah.

[00:12:04] Speaker 00:
The plea agreement.

[00:12:06] Speaker 00:
Well, I think it's not enough to, well, he was not asked in this case, did he understand it?

[00:12:14] Speaker 00:
Let me preface it by that.

[00:12:15] Speaker 01:
Let me ask this then.

[00:12:16] Speaker 01:
Why are you resisting interpreting Rule 11 that way, given the long history of Rule 11, where

[00:12:25] Speaker 01:
multiple courts have said there has to be this very, what I'll call, intense inquiry by the judicial officer considering whether to accept the plea.

[00:12:36] Speaker 01:
It's not enough to ask some general questions and place the burden on the defendant.

[00:12:41] Speaker 00:
I'm sorry if I'm not making that clear.

[00:12:43] Speaker 00:
I thought I started by quoting Yian and saying that's exactly what's supposed to happen.

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That the judge is supposed, the judge who takes the plea, it says this is ordinarily at the plea.

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The court must assure itself that the defendant is aware of and understands the risk.

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And then the court went on and said, in the context of an appellate waiver, that's done at the

[00:13:05] Speaker 00:
generally done at the police state.

[00:13:06] Speaker 00:
So I do completely agree that it's supposed to be done in the Rule 11 colloquy, and that fact alone is sufficient to invalidate the waiver.

[00:13:16] Speaker 00:
But I also think when you have a claim that you were never given a chance to object to in the district court, let me put it that way, the opportunity was not to, there was no opportunity to object in the district court to any of these conditions.

[00:13:29] Speaker 04:
But that just shows that there was an error in your view in the sentencing.

[00:13:34] Speaker 04:
And the problem, back to the preliminary problem, is that the appeal waiver seems to cover that.

[00:13:42] Speaker 04:
So the question for me, because I think you have a good argument on the merits, on the special conditions, but the argument for me is, the issue for me is whether the appeal waiver is valid.

[00:13:55] Speaker 04:
And you keep saying that he wasn't asked if he understood it, but he was said you can plead not guilty and have a jury trial.

[00:14:03] Speaker 04:
Do you understand that?

[00:14:04] Speaker 04:
Understand the defendant says you're giving up that right.

[00:14:07] Speaker 04:
Do you understand that the defendant?

[00:14:09] Speaker 04:
Yes, sir You're giving up all the rights you would have a trial and they go through the judge goes through a number of rights You're giving up all those rights.

[00:14:16] Speaker 04:
Yes, sir After we finish today, there won't be much left to do except for judge Sullivan to consider my recommendation that you plead guilty and proceed to sentencing Do you understand that?

[00:14:24] Speaker 04:
Yes, sir Now the appeal waiver is never specifically

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mentioned, but then the court says, have you completely and thoroughly discussed this matter with Mr. Jeffress, who is the defendant's lawyer?

[00:14:39] Speaker 04:
The defendant says, yes, sir.

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If there are any questions you wish to ask before we go further, I don't have any questions.

[00:14:45] Speaker 04:
So that sounds like he understood the general waiver of rights

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and a lot of the specifics, and had thoroughly discussed the plea agreement with his counsel.

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And the plea agreement, of course, included the appeal waiver.

[00:15:01] Speaker 00:
So I don't think so for these reasons.

[00:15:04] Speaker 00:
He was asked the number of specific rights.

[00:15:06] Speaker 00:
So when you say general rights, he was asked about the waiver of jury trial, the waiver of cross-examination, things like that.

[00:15:14] Speaker 00:
And he was asked if he understood those specific rights.

[00:15:17] Speaker 00:
And he was asked if he had discussed the matter with Mr. Jeffers, not the plea agreement, and conspicuously absent from all the other specific rights that were addressed in the colloquy was the right to appeal, the waiver of the right to appeal.

[00:15:35] Speaker 04:
That's true, and that's why we're here.

[00:15:37] Speaker 04:
And we're discussing this, is that should have been done, and it was not done, and that was...

[00:15:45] Speaker 04:
The question was what happens as a result of that.

[00:15:48] Speaker 04:
On the letter, though, later in the colloquy, it does say, the Court says, there's a letter dated February 21st to Mr. Jefferson in the United States, and it is the plea agreement.

[00:15:56] Speaker 04:
Did you read this letter very carefully, the defendant?

[00:15:59] Speaker 04:
Yes, I did, sir.

[00:16:01] Speaker 00:
Right and did you understand it and are you knowingly is miss is significantly missing from that.

[00:16:07] Speaker 04:
He was just asked did he read it.

[00:16:09] Speaker 04:
Well then it says do you understand sir by signing it you agree that this is the agreement and that its terms may be enforced in your case.

[00:16:15] Speaker 04:
Yes I understand sir.

[00:16:18] Speaker 00:
I know, and again, the wording of that is you understand this is the terms, not you understand that you're giving up any of these rights.

[00:16:25] Speaker 00:
I mean, when the court's setting Guillen, it has to be knowing and intelligent, and the court must assure itself that the defendant is aware of and understands this.

[00:16:33] Speaker 04:
I agree.

[00:16:34] Speaker 04:
It should be done.

[00:16:34] Speaker 04:
It wasn't done.

[00:16:36] Speaker 04:
And I get that.

[00:16:36] Speaker 04:
The question is, we've got to deal with the harmless error part of the rule.

[00:16:40] Speaker 04:
Presumably, counsel discusses this with the defendant, and the defendant specifically indicated as much in the colloquy here, and presumably he was telling the truth when he said he had read the agreement.

[00:16:55] Speaker 04:
Now the appeal waiver has a lot of intricacies to it, I understand that.

[00:16:59] Speaker 00:
And the other thing I do want to say is,

[00:17:03] Speaker 00:
You're right, it says sentencing.

[00:17:05] Speaker 00:
But this court has defined sentencing as the oral pronouncement of sentencing.

[00:17:09] Speaker 00:
So there's certainly an argument to be made that when the written judgment, which just contains different terms than the sentencing, that this appeal waiver doesn't cover that.

[00:17:22] Speaker 04:
Right, that's your argument.

[00:17:23] Speaker 04:
That's another argument.

[00:17:25] Speaker 04:
Even if the appeal waiver is valid, its terms didn't cover what happened here.

[00:17:30] Speaker 00:
I would say that's right.

[00:17:32] Speaker 00:
We may be in semantics again, but yes, I would say that that's a good description, yes.

[00:17:38] Speaker 02:
Let me ask my original question a different way.

[00:17:41] Speaker 02:
If he had seen the sentencing report with the recommendations, if they had jibed orally and in written form, what would happen to your Rule 11 issue?

[00:17:51] Speaker 00:
It would be no different, frankly.

[00:17:55] Speaker 00:
It would have given, the defendant would have had at least notice of what, notice from the recommendation of what the conditions were proposed, but that would not satisfy the fact that they were never mentioned at the oral sentence.

[00:18:10] Speaker 00:
And so I think, but I would expect that

[00:18:14] Speaker 00:
given that it was myself, I guess I would have expected myself to have these recommendations and say, wait a minute, Judge, some of these conditions should not be imposed.

[00:18:25] Speaker 00:
Some of them I object to others and everything, but there was no, again, no opportunity, if I'm using that word correctly, to do that because the recommendation wasn't disclosed.

[00:18:36] Speaker 02:
One thing no one has asked you is about USC 3583E2.

[00:18:44] Speaker 02:
That is, he could move for modification, not now.

[00:18:49] Speaker 02:
He's got to serve a year of supervised release, but he's free to do that.

[00:18:54] Speaker 00:
He is free to do that, but this court in love said if in the written judgment there's a provision that was not pronounced at the oral sentence, we vacate it.

[00:19:05] Speaker 00:
That's the rule.

[00:19:07] Speaker 00:
So you're correct, but he doesn't, he shouldn't have to do that when first of all, they weren't mentioned at the oral sentence, and second of all, the waiver was never mentioned.

[00:19:18] Speaker 00:
A defendant, can he do that?

[00:19:20] Speaker 00:
Yes, but that's,

[00:19:24] Speaker 00:
But the law is that it has to be done at the oral sentence, and a defendant shouldn't have to do that to correct the error because we're on direct appeal and can raise that on direct appeal.

[00:19:36] Speaker 00:
So I understand that argument, but that's not sufficient to correct the error that was made in this case.

[00:19:44] Speaker 00:
Let me put it that way.

[00:19:45] Speaker 02:
Well, this may just be my view.

[00:19:54] Speaker 02:
I don't think district judges, I understand what the statutes provide and what the sentencing guidelines and Title 18 provide, but a district judge to ask him to fly spec all these conditions about, well, what do you mean about working diligently for my family?

[00:20:14] Speaker 02:
That is something that probation office is supposed to, and we're supposed to presume they act in good faith.

[00:20:21] Speaker 02:
details are things that the probation office is supposed to deal with the interpretation of some of these vague terms in here and I realize the Seventh Circuit has gone way out in my opinion on this the other way but I think we have to look at this in a

[00:20:45] Speaker 02:
sort of real world?

[00:20:48] Speaker 00:
Well, I think two things.

[00:20:50] Speaker 00:
Again, I don't think the Seventh Circle is way out, but I'll put that aside.

[00:20:55] Speaker 00:
The conditions, as the government pointed out, have been changed significantly since these were imposed.

[00:21:01] Speaker 00:
To take account of most of those things that I've mentioned actually, they actually define working regularly quite specifically in the new guidelines that were not used.

[00:21:11] Speaker 00:
So if the new guideline, if the correct

[00:21:16] Speaker 00:
Conditions had been imposed.

[00:21:18] Speaker 00:
I think a lot of my objections might not have been there because they actually define what work regularly means and they actually define they put in a lot of Cienta requirements about associating with people involved in criminal activity They define all kinds of other things that I've talked about supporting dependents and they

[00:21:44] Speaker 00:
all these things.

[00:21:45] Speaker 04:
So if those, again, if the... But then your argument is strongest, I thought, as to the special conditions.

[00:21:54] Speaker 00:
The special conditions which were absolutely never mentioned.

[00:21:56] Speaker 04:
That's what I mean.

[00:21:57] Speaker 04:
That's why I say it's your strongest point.

[00:21:58] Speaker 04:
Clearly invalid.

[00:21:59] Speaker 04:
Because there had been a general reference to standard conditions, but no reference to these other special conditions.

[00:22:06] Speaker 00:
I agree and disagree, I guess.

[00:22:08] Speaker 00:
I agree that the special conditions were never mentioned at all, and therefore there was no

[00:22:13] Speaker 00:
He said I'll impose standard conditions, and he didn't even say conditions.

[00:22:18] Speaker 00:
He said standard conditions without ever mentioning what standard conditions they were.

[00:22:23] Speaker 00:
So I view that as essentially identical, I guess, but you're right.

[00:22:28] Speaker 00:
He did, the two specials were never mentioned.

[00:22:32] Speaker 02:
And these are the financial, right?

[00:22:34] Speaker 02:
Financial.

[00:22:38] Speaker 02:
pre-sentence report recommended that the languages of limitations and restrictions, the financial restrictions and limitations, are recommended?

[00:22:48] Speaker 00:
I think it did.

[00:22:49] Speaker 00:
There's two.

[00:22:50] Speaker 00:
The financial disclosure, it's titled, and financial restrictions.

[00:22:53] Speaker 00:
I think you're right.

[00:22:54] Speaker 00:
I think they were mentioned in the pre-sentence.

[00:22:56] Speaker 00:
But that can't cure the court's statement in love.

[00:23:01] Speaker 00:
And it seems like they were mentioned

[00:23:04] Speaker 00:
In love, they were actually imposed, so the defendant had a chance to object to some.

[00:23:11] Speaker 00:
And then they were different in the written judgment.

[00:23:15] Speaker 00:
And the court essentially said, that's an automatic rule, too, that if a condition is not mentioned in the oral sentence and yet appears on the written judgment, we vacate it.

[00:23:25] Speaker 00:
We remand it to the district court to vacate.

[00:23:28] Speaker 01:
The district court mentioned that there would be something in six months, a status conference, a review.

[00:23:35] Speaker 01:
Yes.

[00:23:36] Speaker 01:
Did that ever occur?

[00:23:38] Speaker 00:
He's not, he's still serving his sentence.

[00:23:41] Speaker 01:
He's still in custody.

[00:23:44] Speaker 00:
I think six months, a number of judges hold, say six, three or six months after someone is released from custody, they hold a status conference to see how the person is doing.

[00:23:55] Speaker 00:
I'm pretty sure that's what that reference was to.

[00:23:59] Speaker 02:
And the 15% cut, what was that?

[00:24:01] Speaker 00:
Was that to the sentence or to the... The 15% cut refers to good time, which is actually also incorrect.

[00:24:08] Speaker 00:
It's not 15%.

[00:24:10] Speaker 00:
It's less than that, the way the Bureau of Prisons calculates it.

[00:24:12] Speaker 00:
The statute says up to 54, anyhow.

[00:24:16] Speaker 00:
I won't get into that.

[00:24:17] Speaker 02:
But when does he do to get out?

[00:24:19] Speaker 00:
He just he got a stay to stay out until his took his son to college I think he went in in September or October of last year, so he's not He served only a few months so far He could be sent to a halfway house the end of this year if depending on how much halfway house time they give him

[00:24:42] Speaker 00:
Because he could get up to six months and a half.

[00:24:45] Speaker 00:
He could be out theoretically the end of this year probably most likely Early right at the beginning of next year.

[00:24:53] Speaker 02:
Okay.

[00:24:54] Speaker 00:
Thank you very much.

[00:24:55] Speaker 02:
Thank you very much

[00:25:18] Speaker 03:
May it please the Court, Luke Jones for the United States.

[00:25:22] Speaker 03:
This appeal should be dismissed because it falls within the scope of the appellant's knowing and voluntary appeal waiver.

[00:25:29] Speaker 03:
And that's the standard here, whether the appeal waiver was knowing and voluntary.

[00:25:33] Speaker 03:
Here, all of the evidence points in that direction.

[00:25:37] Speaker 03:
The language of the plea agreement is clear as to the waiver.

[00:25:41] Speaker 03:
There's nothing about this appellant that suggests he would have had any difficulty comprehending that waiver.

[00:25:48] Speaker 03:
He's college educated.

[00:25:49] Speaker 03:
Indeed, his crimes in this case were complicated bank fraud and bribery of public official schemes.

[00:25:57] Speaker 03:
He was assisted by excellent counsel who affirmed, as the appellant did, that they had read the agreement, and this is by their signature on the document, that they had discussed it, that they understood it,

[00:26:11] Speaker 03:
and that appellant was agreeing to the terms voluntarily.

[00:26:15] Speaker 03:
That is consistent with what happens at the plea colloquy.

[00:26:18] Speaker 02:
Well, you agree there was an error.

[00:26:21] Speaker 03:
Indeed, there was a violation of the Rule 11 requirement that the magistrate judge specifically inquired about that appeal waiver.

[00:26:30] Speaker 03:
But in this case, that is a red herring.

[00:26:33] Speaker 03:
Appellant is not seeking the relief he would be entitled to based on a Rule 11 analysis.

[00:26:40] Speaker 03:
And that's telling, because Appellant wishes to keep the benefits of his bargain, which were substantial.

[00:26:47] Speaker 04:
Well, couldn't he be saying that, had I been informed and fully understood the appeal waiver, I wouldn't have agreed to the appeal waiver and would have negotiated a plea agreement without the appeal waiver?

[00:27:00] Speaker 03:
Well, the plea agreement included the appeal waiver.

[00:27:04] Speaker 03:
There's nothing to suggest that if Appellant didn't want to

[00:27:09] Speaker 03:
waives appeal rights that the government was willing to concede as much as they did in this case.

[00:27:15] Speaker 04:
Well, there's nothing to suggest that they wouldn't either.

[00:27:19] Speaker 03:
Well, I don't think that that speculation necessarily informs the ultimate decision here as to whether it was knowing voluntarily.

[00:27:26] Speaker 04:
It's just hard to figure out.

[00:27:30] Speaker 04:
what the purpose of the oral colloquy, which is so important and required by the rule, is if the failure to give it is always going to be harmless, even harmless error.

[00:27:42] Speaker 03:
Well, I don't think it's always going to be harmless.

[00:27:46] Speaker 03:
And certainly... How could it not be?

[00:27:48] Speaker 04:
Give me some examples.

[00:27:52] Speaker 03:
Well, there are certainly cases where a court is reviewing

[00:27:59] Speaker 03:
And I won't be able to cite a specific one, but any type of violation of Rule 11, whether it's a failure to... Now, let's go on the appeal waiver.

[00:28:06] Speaker 04:
The failure to mention the appeal waiver, assume a written plea agreement, failure to mention the plea waiver in the colloquy.

[00:28:15] Speaker 04:
My read of your position is that's always going to be harmless.

[00:28:22] Speaker 04:
At least absent something unusual, the fact that we've become aware of about the defendant.

[00:28:30] Speaker 03:
Well, I think that, right, if there were facts that suggested the waiver or the plea more generally, we're not knowing intelligent and voluntary.

[00:28:38] Speaker 03:
I mean, that's where the court would look to the entire record.

[00:28:40] Speaker 03:
That's what they do in the prejudice prong of the Rule 11 analysis.

[00:28:44] Speaker 03:
And that's what they do when they're evaluating the validity of an appeal waiver specifically.

[00:28:50] Speaker 03:
The key here and what rule 11 is meant to do is to ensure that these pleas are knowing and intelligent and voluntary.

[00:28:58] Speaker 03:
Exactly.

[00:28:58] Speaker 03:
Exactly.

[00:28:59] Speaker 03:
But there wasn't done here on the appeal waiver.

[00:29:01] Speaker 03:
Exactly.

[00:29:02] Speaker 03:
But it's not a necessary precondition to a plea agreement being enforced.

[00:29:10] Speaker 03:
And there's no magic combination

[00:29:17] Speaker 03:
or magic formula that the court has to follow for the appeal waiver to be valid.

[00:29:26] Speaker 01:
Isn't it in the government's interest to be certain that this is mentioned as a way of cutting off collateral attacks later on?

[00:29:35] Speaker 01:
I mean, you see the history of these cases.

[00:29:38] Speaker 01:
All efforts are made.

[00:29:40] Speaker 01:
as Judge Henderson was mentioning, to withdraw pleas many years after, as well as to raise other types of arguments.

[00:29:47] Speaker 01:
So what is the harm, as far as the government is concerned, to requiring this to be specifically inquired of by the district court?

[00:29:58] Speaker 01:
And it can't be harmless error.

[00:30:01] Speaker 03:
Well, it's not, the courts have recognized this is not a structural error in the process.

[00:30:11] Speaker 01:
But you would agree, as opposed to giving up some other things, it's one of the significant rights.

[00:30:16] Speaker 01:
At least the government has taken the position almost in recent years that it's a key part of the government's agreement to a plea agreement.

[00:30:29] Speaker 03:
Absolutely.

[00:30:30] Speaker 03:
And if, for example, in this case, the prosecutor had stepped in during the colloquy to ensure that the Magister judge had specifically inquired of the appeal waiver, presumably that would have cured the error in this case and precluded the appeal.

[00:30:49] Speaker 03:
Absolutely.

[00:30:50] Speaker 03:
Does your office have a practice now of doing that?

[00:30:54] Speaker 03:
I can't say specifically that our office has a checklist that every prosecutor brings to every plea colloquy, although I submit that's a good practice.

[00:31:06] Speaker 03:
But I know that the office takes pains in drafting a plea agreement.

[00:31:10] Speaker 03:
And in the main run of cases during plea colloquies to ensure that there isn't a Rule 11 violation that might raise the possibility that the plea agreement wasn't sufficiently known, intelligent, and voluntary, and that the record didn't sufficiently display that,

[00:31:30] Speaker 03:
such that a appellant or defendant would have an opportunity to back out of the deal if they later regretted it or on appeal to try to do an end around of an agreement that they entered knowingly.

[00:31:46] Speaker 04:
It seems like the appeal waiver is so important, though, because the sentence could be completely botched and could be much higher than the defendant was reasonably anticipating.

[00:31:53] Speaker 04:
So inquiring into the knowledge, the defendant's knowledge of the appeal waiver would seem really important.

[00:32:01] Speaker 03:
Certainly important, but the appeal waiver here is not absolute.

[00:32:05] Speaker 03:
Appellant retained the right to appeal a sentence that was outside the guidelines and

[00:32:16] Speaker 03:
And which is why you have in the Dian case, where at sentencing, I believe it was, the district court made a statement about the defendant's right to appeal, which the circuit court recognized was not inaccurate given that

[00:32:34] Speaker 03:
the defendant had retained some appeal rights but largely waived his right to appeal his sentence, assuming it was within the confines of the terms of that waiver.

[00:32:45] Speaker 04:
I guess my point is it's pretty obvious by pleading guilty that you know you're giving up your right to trial.

[00:32:50] Speaker 04:
That's common sense.

[00:32:52] Speaker 04:
But you don't necessarily realize your

[00:32:56] Speaker 04:
The sentence is going to be binding, even if erroneous, such that you couldn't appeal it.

[00:33:04] Speaker 04:
So it would seem especially important to inquire into that, which you've acknowledged that.

[00:33:09] Speaker 04:
So I'm just underscoring the importance of the appeal waiver on the sentence.

[00:33:15] Speaker 03:
I want to respond to that before turning to the merits.

[00:33:18] Speaker 03:
I don't disagree that that as a general matter is true.

[00:33:23] Speaker 03:
In this case, the court needs to look to this record and make a determination about this defendant.

[00:33:29] Speaker 03:
And frankly, given the record and the able assistance of counsel in this case, it's difficult to comprehend that this appellant did not understand the terms of his agreement to include the appeal waiver.

[00:33:43] Speaker 01:
But he could be a financial genius.

[00:33:46] Speaker 01:
and be a complete klutz as to sentencing.

[00:33:51] Speaker 01:
And isn't that sort of the assumption underlying rule 11 that we don't make any assumptions on these important points?

[00:34:00] Speaker 03:
No, and I don't.

[00:34:02] Speaker 03:
I think the key analytical framework here is that, of course, inquiry at the colloquy is helpful.

[00:34:13] Speaker 03:
And it's erroneous not to do it.

[00:34:14] Speaker 03:
But that doesn't end the inquiry.

[00:34:16] Speaker 03:
And I think in this case, given the factors that we have before us, and given, frankly, the fact that appellant is not seeking relief based on this error, as you might typically expect under Rule 11, suggests that it's an effort to evade a knowing waiver rather than

[00:34:39] Speaker 03:
to suggest this plea agreement was not valid and that its waiver should not be enforced.

[00:34:48] Speaker 03:
And my supervisor reminds me that Assistant U.S.

[00:34:52] Speaker 03:
Attorneys, and I remember this now, are taught to, during plea colloquies, ensure that Rule

[00:34:59] Speaker 03:
is followed.

[00:35:01] Speaker 03:
Obviously didn't happen here, but for the reasons we state, this court should enforce that waiver.

[00:35:05] Speaker 02:
You need to get to the merits.

[00:35:07] Speaker 03:
Thank you, Your Honor.

[00:35:07] Speaker 03:
I appreciate that.

[00:35:09] Speaker 03:
If the court reaches the merits in this case,

[00:35:12] Speaker 03:
We submit that plain error applies and that the court should resolve the case based on a decision that appellant has not alleged any error that is plain.

[00:35:23] Speaker 03:
Needn't address the alleged errors, although we don't concede those.

[00:35:28] Speaker 03:
How can plain error apply to the special conditions?

[00:35:35] Speaker 03:
The special conditions are more difficult in terms of notice for us to argue than the standard conditions.

[00:35:41] Speaker 03:
But recall that the pre-sentence report mentions them.

[00:35:44] Speaker 03:
During the sentencing hearing, the district judge asks the appellant if he's read the pre-sentence report, which he confirms.

[00:35:54] Speaker 04:
These conditions are not like the conditions in Love or other cases where a court... The district judge then says he's imposing the standard conditions or standard conditions.

[00:36:06] Speaker 04:
Correct.

[00:36:07] Speaker 04:
And there's a list of things that are encompassed within standard conditions.

[00:36:11] Speaker 04:
The special conditions were not, so I don't know that the defendant would have been on notice to object at that point on the ground that the special conditions would be imposed, and therefore I don't know how plain error could apply to those special conditions.

[00:36:26] Speaker 03:
Well, I think the reason suggesting planners should apply, they appear in the pre-sentence report.

[00:36:34] Speaker 03:
They apply effectively by operation in cases where there's a forfeiture.

[00:36:42] Speaker 03:
Standard conditions apply every time, and then for those special conditions listed in the guidelines, those apply in circumstances such as if you've got forfeiture,

[00:36:54] Speaker 03:
you're going to have these conditions.

[00:36:56] Speaker 03:
If you have a violation of X type of offense, you're going to have this condition.

[00:37:05] Speaker 03:
with special conditions on appeal in the cases such as Love, are dealing with conditions outside of this quite routine imposition of whether standard or in this category of special, conditions that appellants and appellant counsel frankly cannot be heard to complain that they were surprised when this shows up on the written judgment.

[00:37:37] Speaker 03:
Even on an abuse of discretion standard, however, the appellant raises no argument of prejudice resulting from these special conditions, let alone a substantive argument as to their invalidity or why they shouldn't apply in this case.

[00:37:56] Speaker 01:
What would the defendant have to show?

[00:37:59] Speaker 03:
Well, on abuse of discretion, he would have to show... He hasn't shown prejudice.

[00:38:03] Speaker 01:
What would he have to show?

[00:38:05] Speaker 03:
Well, he on the visa discretion, he would have to, the government would show that, um, the error was harmless, meaning that it didn't, um, it didn't have a impact on the outcome.

[00:38:20] Speaker 03:
And I think.

[00:38:21] Speaker 01:
Well, in our decision in sorrow, we suggested that prejudice under a plain error standard in the sentencing context.

[00:38:33] Speaker 01:
may not be as rigorous, that we want to be certain the district court got it right, so we remand for re-sentencing.

[00:38:40] Speaker 01:
It doesn't have all of the implications that, you know.

[00:38:46] Speaker 03:
I think that's true.

[00:38:47] Speaker 03:
If I recall correctly, this Sara case dealt with an issue of the term.

[00:38:53] Speaker 01:
You cited it for a different proposition.

[00:38:55] Speaker 03:
The term of imprisonment.

[00:38:58] Speaker 03:
I think that

[00:39:00] Speaker 01:
Well, what I was trying to focus you on was you said the defendant hasn't shown any prejudice as a result of these special conditions.

[00:39:09] Speaker 03:
Correct.

[00:39:10] Speaker 01:
And my question was, how would the defendant show that?

[00:39:16] Speaker 01:
And what comes to mind is,

[00:39:19] Speaker 01:
He is released from incarceration, he's under these special conditions, and he wants to enter into certain agreements, credit agreements, other types of financial agreements, and he can't do it.

[00:39:33] Speaker 01:
So would he have to, what would his proffer be?

[00:39:39] Speaker 01:
And isn't that why there's been all this emphasis about the sentence is the oral sentence?

[00:39:48] Speaker 03:
To answer your first question, I don't know what his proper would be because I don't think there is any prejudice to him.

[00:39:53] Speaker 01:
I think the reason... I know you don't know, but hypothetically, I asked you what would the defendant have to show to show prejudice in the government's view?

[00:40:05] Speaker 03:
Perhaps if the sentencing condition was not in line with

[00:40:11] Speaker 03:
the requirements of 3583 was completely untethered from his crimes.

[00:40:18] Speaker 03:
If it was perhaps in a case like this a restriction on his use of the internet or some other imposition

[00:40:26] Speaker 03:
of a condition that restricted his liberty to a more significant degree.

[00:40:31] Speaker 03:
Here, the basis and the reasons for these conditions are self-evident and completely in sync with not only his offenses, but the purposes of supervised release.

[00:40:45] Speaker 03:
And I want to respond to your second question, but it's escaping me.

[00:40:57] Speaker 03:
So now I recall it was the question of whether the oral sentence and the written sentence and the fact of the oral sentence control in which appellant cites.

[00:41:10] Speaker 03:
The cases that appellant cites here, Jackson, Weathers, Booker, none of these cases are akin to the circumstances here.

[00:41:20] Speaker 03:
Jackson was a case where the appellant challenged to explain the reasons for an upward departure

[00:41:27] Speaker 03:
And there was a debate about the importance of the statement of reasons, which allegedly conflicted.

[00:41:33] Speaker 03:
The Weathers case was also a substantive case about the term of incarceration, specifically whether a term ran consecutively or concurrently.

[00:41:45] Speaker 03:
And the court acknowledged that oral sentence controls, but even in that case,

[00:41:50] Speaker 03:
said the written judgment is not simply a ministerial act with no legal importance.

[00:41:57] Speaker 03:
The written judgment can, in many circumstances, including cases regarding supervised release, explain ambiguities in the sentence as long as there's not a direct conflict.

[00:42:11] Speaker 03:
We don't have that type of conflict here where the court said the sentence should be concurrent, but the written judgment says consecutive.

[00:42:20] Speaker 02:
Any more questions?

[00:42:23] Speaker 03:
There are no further questions.

[00:42:24] Speaker 03:
We ask the court to dismiss or any alternative to affirm.

[00:42:28] Speaker 02:
Thank you.

[00:42:33] Speaker 02:
a couple minutes.

[00:42:36] Speaker 00:
I just want to say there was questions about the relief sought and withdrawal plea.

[00:42:39] Speaker 00:
This court has invalidated waivers of appeal in at least Godoy, Icardi, Guillen, and Kaufman.

[00:42:46] Speaker 00:
So this court has granted precisely the relief seeking that the appellate waiver doesn't cover this condition in all four of those cases.

[00:42:57] Speaker 00:
And in Icardi, it reaffirmed Guillen and talked about the importance of the

[00:43:01] Speaker 00:
district court confirming that the plea was so, that's a red herring by the government because this court has granted the relief of invalidating the appellate waiver or allowing the appeal to proceed.

[00:43:14] Speaker 00:
What the government really said in answer to Judge Kavanaugh is yes, it's automatic.

[00:43:18] Speaker 00:
All we have in this case is the plea agreement, nothing else.

[00:43:22] Speaker 00:
And maybe they added on the condition that if the defendant is educated, but as Judge Rogers pointed out,

[00:43:29] Speaker 00:
educated in financial doesn't mean educated in the law or what an appellate waiver means.

[00:43:34] Speaker 00:
So they really are advocating for an automatic rule despite the fact that this court has at least four times said that an appellate waiver can't be upheld.

[00:43:43] Speaker 04:
They mentioned also counsel having been

[00:43:48] Speaker 04:
Able counsel, I think he said.

[00:43:49] Speaker 04:
Able counsel having been referred to at the plea colloquy where the judge specifically asked, have you discussed all of this?

[00:43:57] Speaker 00:
But I think that's, again, really an automatic rule because if it wasn't able counsel, the judge would never accept the plea to begin with and there'd be an ineffectiveness.

[00:44:06] Speaker 00:
So it's an automatic rule that as long as you have a lawyer who meets the ineffectiveness,

[00:44:10] Speaker 00:
I don't see that that adds anything.

[00:44:13] Speaker 04:
Let me put it that way.

[00:44:14] Speaker 04:
Wouldn't, try to ask this as generically if I can, wouldn't counsel ordinarily discuss the appeal waiver with a defendant signing an agreement?

[00:44:27] Speaker 00:
I have to say yes, because of course a lawyer is supposed to do that.

[00:44:32] Speaker 00:
In how much detail varies immensely amongst counsel, and of course I'm not going to comment on the particular counsel in this case.

[00:44:43] Speaker 04:
Yes, I was just asking a generic question.

[00:44:44] Speaker 00:
The only other two things I want to say, the government said,

[00:44:46] Speaker 00:
about these conditions, but they're all discretionary.

[00:44:50] Speaker 00:
So without being mentioned at the sentencing, oral sentencing, the defendant had no idea which conditions the district judge was thinking of imposing.

[00:44:59] Speaker 00:
They said it was, and they said the reasons for these conditions are all self-evident.

[00:45:04] Speaker 00:
Well, let me give you one of the simplest ones.

[00:45:06] Speaker 00:
He can't leave the district.

[00:45:08] Speaker 00:
It says he cannot leave the judicial district.

[00:45:10] Speaker 00:
It doesn't say which district, first of all.

[00:45:13] Speaker 00:
But second of all, say it's Virginia.

[00:45:14] Speaker 00:
He can't even drive to D.C.

[00:45:16] Speaker 00:
without the permission of the probation officer.

[00:45:19] Speaker 02:
Well, don't the new policy statements clear that up?

[00:45:22] Speaker 00:
They do, but that's not the ones that were imposed here.

[00:45:25] Speaker 02:
Well, I know, but I meant to ask the government this.

[00:45:29] Speaker 02:
He's not on supervised release yet, but I can't believe they won't enforce the new interpretations.

[00:45:36] Speaker 00:
Well, they're supposed to enforce the interpret...

[00:45:39] Speaker 00:
conditions that the judge set them out in the written judgment.

[00:45:42] Speaker 02:
In other words, they're going to interpret, you can't go from Virginia to Maryland to D.C.

[00:45:48] Speaker 02:
in light of the interpretation given by the new policy statements.

[00:45:53] Speaker 00:
That's not at all clear to me.

[00:45:55] Speaker 02:
Well, then you can be back up here again.

[00:45:58] Speaker 02:
I did want to say... Well, I hope not.

[00:46:03] Speaker 02:
I would lop off Accardi on that list of four cases because there was no written waiver in that case.

[00:46:11] Speaker 02:
And that's the case where the defendant said, I'll take lifetime, I'll take anything, just send me home to my dad.

[00:46:17] Speaker 00:
Right.

[00:46:18] Speaker 00:
They claimed it was an oral.

[00:46:19] Speaker 00:
Yes, you're right.

[00:46:20] Speaker 00:
They claimed it was an oral waiver.

[00:46:21] Speaker 00:
But what I'm saying is Accardi does join the cases where the government says there was a waiver of appeal.

[00:46:28] Speaker 00:
and the discourse said no, there was not a valid waiver of appeal, and so we can't grant the relief that the defendant can appeal as opposed to the relief of withdrawal of plea.

[00:46:39] Speaker 00:
That's what I meant to include it as, yes.

[00:46:43] Speaker 02:
Thank you.