[00:00:09] Speaker 04:
Good morning.

[00:00:10] Speaker 01:
Good morning.

[00:00:11] Speaker 01:
May it please the Court.

[00:00:13] Speaker 01:
Rosanna Taramina from the Federal Public Defender's Office for Mr. Duckett.

[00:00:16] Speaker 01:
I'd like to reserve two minutes for a rebuttal.

[00:00:20] Speaker 01:
The District Court in this case committed three procedural errors that resulted in a substantively unreasonable sentence, whether viewed cumulatively or individually, the errors warrant re-sentencing.

[00:00:32] Speaker 01:
The first error is a purely legal one, and it's an error that was not plain at the time of sentencing.

[00:00:38] Speaker 01:
It is now plain, however, that the district court applied the wrong criminal history category and thus the wrong guidelines range in sentencing Mr. Duckett.

[00:00:48] Speaker 01:
Under the Supreme Court's opinions in Melina Martinez and Rosales Morales, as well as this court's consistent prior opinions, Mr. Duckett is entitled to re-sentencing.

[00:01:01] Speaker 01:
The guideline that applies in this case is 71.4, and it directs district courts in the text of the guideline itself to use the criminal history category, quote, applicable at the time the defendant originally was sentenced to a term of supervised release.

[00:01:18] Speaker 04:
In light of this court's... Even if you're right on that, what difference does it make in terms of the guideline ranges?

[00:01:25] Speaker 01:
The guideline range changes from, in a criminal history category five, it's seven to 13 months, and in a criminal history category six, it's eight to 14 months.

[00:01:36] Speaker 04:
So one month.

[00:01:38] Speaker 04:
And you have a district court judge who, this is the third revocation hearing, right?

[00:01:43] Speaker 02:
Yes.

[00:01:43] Speaker 04:
And who seems to be saying, I'm done with revocation here, supervisory release.

[00:01:49] Speaker 04:
I want to give them the statutory max, which is what she did.

[00:01:52] Speaker 01:
She did.

[00:01:53] Speaker 04:
So how does one month on either end make a difference at all?

[00:01:58] Speaker 01:
Well, first, the court itself did not mention that 24 months was the statutory max.

[00:02:02] Speaker 01:
So she didn't say, regardless of the guidelines, I'm giving you 24 months.

[00:02:08] Speaker 04:
That's a different issue of whether she articulated the reasons for upward departure.

[00:02:12] Speaker 01:
Oh, certainly.

[00:02:13] Speaker 04:
We'll get to that.

[00:02:14] Speaker 04:
But I thought you were talking about the substantive reasonableness

[00:02:17] Speaker 01:
Yeah.

[00:02:18] Speaker 01:
Oh, no, no.

[00:02:19] Speaker 01:
Well, with procedural error, the defendant does not have to demonstrate substantive unreasonableness.

[00:02:27] Speaker 01:
I do have a substantive unreasonableness claim that I do think relates to the three procedural errors.

[00:02:33] Speaker 03:
The category was clearly harmless error, a clear harmless error.

[00:02:39] Speaker 03:
They counted in an attempt to distribute cocaine as a predicate offense for career offender status, right?

[00:02:47] Speaker 03:
Right.

[00:02:48] Speaker 03:
That was wrong.

[00:02:49] Speaker 03:
Right.

[00:02:49] Speaker 03:
But waiting in the wings, waiting to be counted, are all these other offenses the defendant committed, including a murder at Lewisburg that wasn't counted, and including the armed robbery of which he was convicted.

[00:03:05] Speaker 03:
But either one of those would add up to a career offender and put him right back in the same category that he was in.

[00:03:13] Speaker 01:
So the uncharged murder, which we don't have any facts underlying, we don't, it was not, it was uncharged.

[00:03:21] Speaker 01:
He was unrepresented.

[00:03:22] Speaker 01:
We know nothing about it.

[00:03:24] Speaker 01:
So it would never count to qualify as any criminal history points.

[00:03:28] Speaker 03:
The police on this report said he was convicted of killing, assault with serious injury, and possessing a dangerous weapon.

[00:03:35] Speaker 01:
The one that he was not charged for, Your Honor?

[00:03:40] Speaker 01:
No.

[00:03:40] Speaker 01:
The uncharged?

[00:03:41] Speaker 03:
That's why he was moved to the security prison in Colorado.

[00:03:46] Speaker 01:
But that was a BOP conviction.

[00:03:47] Speaker 03:
Where he committed another attempted murder.

[00:03:49] Speaker 01:
That was a BOP conviction.

[00:03:53] Speaker 01:
So that doesn't count as a federal conviction.

[00:03:56] Speaker 01:
You cannot receive criminal history points.

[00:03:57] Speaker 04:
What about the 1984 armed robbery?

[00:03:59] Speaker 01:
So the 1984 armed robbery was specifically passed over in the District of Colorado.

[00:04:04] Speaker 01:
The District of Colorado did not count the D.C.

[00:04:07] Speaker 01:
armed robbery as a qualifying offense.

[00:04:10] Speaker 03:
They didn't need to.

[00:04:11] Speaker 03:
They already counted the attempted distribution of cocaine.

[00:04:14] Speaker 01:
But it skipped over the 1984 conviction, suggesting that it wouldn't have counted it.

[00:04:21] Speaker 01:
And I will say that we do have the residual clause issue.

[00:04:24] Speaker 01:
It would only have potentially qualified under that.

[00:04:28] Speaker 01:
We can assume, because the court skipped over that conviction, that it actually did reject the application.

[00:04:36] Speaker 03:
But I should also say- What's the basis for rejecting?

[00:04:39] Speaker 01:
Well, in this court, the basis for rejecting it is the basis articulated in Johnson, that the risk articulated in the residual clause is unworkable, and that any of the case law that has interpreted that is unworkable.

[00:04:58] Speaker 02:
How does that survive in Beckels?

[00:05:00] Speaker 01:
So Beckles was a 2255 case.

[00:05:04] Speaker 01:
In that case, the appellant or the petitioner, because he was a 2255 petitioner, had to show a constitutional level injury in order to receive some sort of remedy in that case.

[00:05:19] Speaker 01:
Here, we still have to calculate under 3553A the correct guidelines range.

[00:05:25] Speaker 01:
So we're under, we don't have to show a constitutional level vagueness error.

[00:05:31] Speaker 01:
There would still, Beckles doesn't say that you could actually properly apply the residual clause.

[00:05:37] Speaker 01:
That would be completely inconsistent with what the reasoning of Johnson.

[00:05:42] Speaker 01:
And this court can shut you.

[00:05:42] Speaker 02:
But it seems like it would be inconsistent with Beckles to say that you can't apply the residual clause under the guidelines.

[00:05:47] Speaker 01:
Not that you, what all Beckel said, and it was very limited, was that the void for vagueness constitutional doctrine does not apply to the guidelines.

[00:06:00] Speaker 01:
It did not say that Johnson or that the residual clause has a meaning

[00:06:09] Speaker 01:
outside of the criticized meaning that Johnson went through.

[00:06:15] Speaker 01:
If Johnson recognized that the residual clause is, like I said, unworkable and

[00:06:25] Speaker 01:
essentially meaningless, it's a legal nullity, then how it could be applied correctly and how a court could review that application, I don't know how that could be.

[00:06:36] Speaker 01:
The thing here is, absolutely.

[00:06:39] Speaker 03:
We were talking about the murder that was committed at Lewisburg, right?

[00:06:46] Speaker 03:
And you said it was not charged.

[00:06:48] Speaker 03:
In the supplemental appendix, would you go to page 11

[00:06:52] Speaker 01:
Sure, yes.

[00:06:54] Speaker 03:
Yes, Your Honor.

[00:06:56] Speaker 01:
Are you there?

[00:07:04] Speaker 01:
Yes.

[00:07:04] Speaker 03:
Okay.

[00:07:06] Speaker 03:
Take a look at paragraph 55.

[00:07:08] Speaker 01:
Yes.

[00:07:09] Speaker 03:
It says, a review of BOP records reflect that on January 8, 1994, the defendant stabbed another inmate to death at Lewisburg.

[00:07:18] Speaker 03:
He was found guilty of killing, assault with a serious injury, and possessing a dangerous weapon.

[00:07:26] Speaker 03:
Where do you get the idea he was never charged?

[00:07:28] Speaker 01:
It's because it's not listed in his criminal history.

[00:07:31] Speaker 01:
That's an administrative finding of guilt in the BOP.

[00:07:36] Speaker 01:
It's not in his criminal history.

[00:07:38] Speaker 01:
If it were charged federally or a state, it would be listed in his criminal history, and then criminal history points would have been assigned to it.

[00:07:46] Speaker 01:
But the reason it is only under supervision adjustment, essentially, is because it is an administrative finding, which does not have the same.

[00:07:56] Speaker 03:
Administrative finding of guilty?

[00:07:57] Speaker 01:
Yes, in the BOP.

[00:07:59] Speaker 01:
So he's not represented by counsel.

[00:08:02] Speaker 01:
And again, we don't know anything.

[00:08:04] Speaker 01:
There could have been a self-defense defense.

[00:08:09] Speaker 01:
We know nothing about that.

[00:08:10] Speaker 01:
But in any event, the court couldn't.

[00:08:13] Speaker 03:
We know he killed somebody.

[00:08:14] Speaker 01:
We know that someone died, yes.

[00:08:16] Speaker 01:
Yes.

[00:08:17] Speaker 01:
But we know that that couldn't have been counted.

[00:08:20] Speaker 01:
The court could use that as a variance.

[00:08:22] Speaker 01:
It could use it.

[00:08:23] Speaker 01:
and we don't know that this was actually before the court, but the court could use it as variance, but it wouldn't affect what his criminal history category would be.

[00:08:33] Speaker 01:
So.

[00:08:33] Speaker 04:
Could you speak to your argument about the upward departure, whether there was an adequate explanation for why the district court

[00:08:45] Speaker 04:
Yes.

[00:08:46] Speaker 01:
Under this court's most, well, the line of precedents in Ray Seale's case, both Brown's and in Kigbe, the court's explanation did not, the court did not explain why the guidelines range did end his criminal history category, which was wrong, did not account for

[00:09:05] Speaker 01:
the conduct in this case.

[00:09:07] Speaker 01:
I think especially in light of this criminal history issue where there are guidelines, provisions that would allow the court to vary and instruct the court how to vary.

[00:09:17] Speaker 01:
And I think that is very important.

[00:09:19] Speaker 04:
Could you compare and contrast what took place in Brown?

[00:09:23] Speaker 04:
And in this case, Brown is mentioned as our most recent president.

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

[00:09:28] Speaker 01:
In Brown, the court, it's not, and in fact, in all of those cases, it's not that the court didn't say, didn't give any explanation.

[00:09:38] Speaker 01:
There was an explanation given in Brown.

[00:09:41] Speaker 01:
And in fact, the court said, I don't believe that the, in several of the cases, the court said, I don't believe that the guidelines are sufficient, but then didn't explain why they weren't sufficient.

[00:09:51] Speaker 01:
in Brown, the court said, in addition to explaining why they, the

[00:09:59] Speaker 01:
the case falls out of the mine run, which is what the guidelines represent, that you also have to explain the degree of the variance.

[00:10:08] Speaker 03:
Would you agree, was this the fourth time that this particular district judge had the defendant before her?

[00:10:16] Speaker 01:
No, it was the third time.

[00:10:17] Speaker 03:
Third time, okay.

[00:10:18] Speaker 03:
And we have transcripts of the prior proceedings?

[00:10:23] Speaker 01:
Yes, we have transcripts of the prior, yes.

[00:10:25] Speaker 03:
Would you agree that in reading the

[00:10:29] Speaker 03:
the sentencing that occurred that you're challenging.

[00:10:33] Speaker 03:
Yes.

[00:10:33] Speaker 03:
We should read it in light of the prior proceedings and what the judge said during those proceedings.

[00:10:41] Speaker 01:
I think that what cannot be transferred is the judge's consideration of the treatment and training, which I think is a significant error here that infected

[00:10:53] Speaker 01:
Well, it's not clear.

[00:10:55] Speaker 04:
We don't know, right?

[00:10:58] Speaker 01:
I think it is clear.

[00:10:59] Speaker 01:
In which part do we not know, Your Honor?

[00:11:02] Speaker 04:
You're saying she erred in relying on a mistaken fact about the post-treatment conviction.

[00:11:11] Speaker 01:
Yes.

[00:11:11] Speaker 04:
And I'm suggesting to you the record isn't

[00:11:13] Speaker 01:
clear about that and the record is ambiguous as to her reliance?

[00:11:18] Speaker 04:
Yeah, to what she was saying.

[00:11:19] Speaker 01:
What she was saying?

[00:11:20] Speaker 01:
I think that it is clear as to what she was saying and I think that... This plain error review on that?

[00:11:28] Speaker 01:
No, with respect to this, this is the clear error review because it's a mistake of fact.

[00:11:34] Speaker 01:
So I believe it's clear error review.

[00:11:37] Speaker 01:
And in light of that, and even under plain error review in the sentencing context, if you do think it is ambiguous, I think that there is evidence by the court's statement, which I'll get to, but if you do think it's ambiguous, the correct

[00:11:51] Speaker 01:
the correct remedy would be to remand and have the judge just say whether or not she did rely on it or didn't or was under... I want to go back to the questions about Brown.

[00:12:02] Speaker 04:
Sure.

[00:12:02] Speaker 04:
You were explaining Brown.

[00:12:04] Speaker 04:
Would you compare

[00:12:06] Speaker 04:
what the district court judge did here with what was done in Brown.

[00:12:10] Speaker 04:
Because in Brown, we found that insufficient, right?

[00:12:13] Speaker 01:
Right.

[00:12:13] Speaker 04:
It was an inadequate explanation for an upward departure.

[00:12:16] Speaker 04:
How is this case like Brown or unlike Brown?

[00:12:20] Speaker 01:
Well, in Brown, well, I don't think that the court in this case didn't acknowledge or didn't discuss why the guidelines themselves were insufficient to

[00:12:35] Speaker 01:
sentence, or to justify a 24-month sentence.

[00:12:39] Speaker 01:
And what the degree is, why would the guidelines, why would she say they're so insufficient that we have to vary up to 24 months?

[00:12:48] Speaker 04:
Remind me, was there any effort to

[00:12:52] Speaker 04:
Was there even any statement that there was being a – that there was a departure, an upward departure from the guidelines?

[00:12:57] Speaker 04:
Was there any reference made to the guidelines in that?

[00:13:00] Speaker 01:
There's two references to the guidelines in the district court sentencing.

[00:13:03] Speaker 01:
At the very beginning, she says – I'm beginning my analysis with the guidelines.

[00:13:08] Speaker 01:
It's at the very beginning.

[00:13:09] Speaker 01:
I'm sure I'm paraphrasing.

[00:13:11] Speaker 01:
And then at the very end, she says, I'm basing my decision on the 3553A factors and my consultation with Chapter 7 policy statements.

[00:13:20] Speaker 01:
So she, at the very beginning and at the very end of her analysis, she does say that she's consulted and relied on the guidelines.

[00:13:30] Speaker 01:
And as I was saying earlier, she does not say, I'm just going to give you the statutory maximum, which

[00:13:37] Speaker 01:
which speaks to whether or not she just decided to vary 10 months above the high end of the guidelines range.

[00:13:44] Speaker 01:
She didn't say, I am done here, I'm just blocking away and throwing the key.

[00:13:53] Speaker 01:
If to the extent that she did that though, I do want to hearken back to a misimpression about the treatment, because if the district court thought, I have done everything I could for you, I've done everything for you, and you are still back in front of me, then obviously,

[00:14:12] Speaker 01:
It's a much more reasonable thing to do than if she understood that actually the probation office wasn't doing anything that she had found necessary to the public.

[00:14:27] Speaker 04:
Sorry.

[00:14:28] Speaker 04:
Let me check if my colleagues have any further questions.

[00:14:30] Speaker 04:
We'll give you some time back.

[00:14:31] Speaker 01:
Okay.

[00:14:31] Speaker 01:
Thank you.

[00:14:33] Speaker 04:
Thank you.

[00:14:46] Speaker 04:
Good morning.

[00:14:46] Speaker 00:
Good morning.

[00:14:47] Speaker 00:
May it please the court.

[00:14:48] Speaker 00:
Elizabeth Gabriel on behalf of the United States.

[00:14:50] Speaker 00:
The district court here did not commit any plain procedural error.

[00:14:54] Speaker 00:
The court correctly calculated the guidelines range, did not rely on clearly erroneous information, and gave an adequate explanation of its sentence.

[00:15:01] Speaker 04:
She didn't say anything about an upward departure from the guidelines.

[00:15:05] Speaker 04:
That's devoid from the record.

[00:15:07] Speaker 04:
She didn't say, I'm departing upward from the guidelines because, and give us an explanation.

[00:15:13] Speaker 04:
And Brown, we say you have to do that, right?

[00:15:16] Speaker 04:
You gotta explain why you're departing upward from the guidelines and how this particular defendant isn't, as your friend calls it, isn't the mind-run of cases.

[00:15:26] Speaker 04:
That's completely blackened from this.

[00:15:30] Speaker 04:
How does this survive Brown, I guess is my question.

[00:15:33] Speaker 00:
Well, this case is, I think, it's distinguishable from Brown in one very important respect, and that is that here, this was not the first time the district court was sentencing an appellant.

[00:15:45] Speaker 00:
It wasn't even the second time.

[00:15:46] Speaker 00:
This is the third time.

[00:15:47] Speaker 04:
What's also distinguishing from Brown, because in Brown, the district court judge at least talked about giving some explanation for an upward departure.

[00:15:53] Speaker 04:
That's completely absolute here.

[00:15:55] Speaker 04:
And there we found his explanation insufficient.

[00:15:58] Speaker 04:
Here, we have no explanation.

[00:16:00] Speaker 00:
The problem in Brown was that the court didn't relate any of the 3553 factors to

[00:16:06] Speaker 00:
the defendant in that case to his conduct.

[00:16:09] Speaker 00:
Here we have the district court explaining, relying on his extensive, lengthy, horrible criminal history, the actual violations he committed, the fact that he continued to commit criminal offenses, the fact that he had failed to abide by the court's orders over this two-year period through which the court presided over his case.

[00:16:31] Speaker 00:
And the fact that his violations simply put the community

[00:16:35] Speaker 00:
at risk of danger.

[00:16:37] Speaker 00:
So the court did specifically link appellant's conduct to the 3553 factors in a way that the court in Brown simply did not.

[00:16:46] Speaker 00:
Again, it's important to remember the context here, that this is coming after two separate revocations, previous revocations, two separate sentencings.

[00:16:58] Speaker 00:
This is now the third time that the court is seeing appellant

[00:17:01] Speaker 00:
And all of that history is what is supporting the court's sentence in this case.

[00:17:06] Speaker 00:
The court refers to that, refers to the fact that she's given him multiple opportunities and he simply hasn't been able to comply with her orders.

[00:17:15] Speaker 00:
So I think that that's what distinguishes this case from many of the court's cases where it's the first time a sentencing is taking place or

[00:17:22] Speaker 00:
the first time a court is considering a defendant.

[00:17:25] Speaker 00:
Here, the court was very well aware, and in fact, sent you very well aware.

[00:17:29] Speaker 04:
What do you do with the argument that she didn't seem to understand what had taken place and what hadn't taken place with the post-conviction treatment?

[00:17:39] Speaker 00:
I think there's absolutely nothing in the record to support that assertion.

[00:17:42] Speaker 00:
The court made no findings during its sentencing about treatment or training that appellant had received.

[00:17:51] Speaker 00:
She asked the probation officer about drug treatment, certainly, but she didn't indicate

[00:17:58] Speaker 00:
anything to suggest that she misunderstood whether he had in fact received treatment or not.

[00:18:04] Speaker 00:
And in fact she referred to the probation office's reports which indicated that he had received treatment and training.

[00:18:11] Speaker 00:
And that for various reasons over time either he didn't qualify for treatment or he absconded and wasn't able to receive treatment for those reasons or had committed new criminal offenses.

[00:18:25] Speaker 00:
So the court was well aware of this history, was well aware of what the probation office had done for appellant, and even if she had some misunderstanding, even if there were something in the record to support that, the court simply didn't rely on that in reaching a sentence.

[00:18:41] Speaker 00:
The court's explanation makes clear that she relied on other factors, other factors that outweighed any consideration of whether he had received treatment and training.

[00:18:51] Speaker 03:
Are there any studies about whether this

[00:18:55] Speaker 03:
therapy works?

[00:19:00] Speaker 03:
I suppose it doesn't.

[00:19:02] Speaker 03:
Suppose it really doesn't matter one way or the other, and there's no evidence to indicate otherwise.

[00:19:07] Speaker 03:
Then what's the point?

[00:19:10] Speaker 03:
So he didn't get therapy, but it wouldn't have changed anything anyway.

[00:19:14] Speaker 00:
Yeah, I would hope that there are studies that indicate it does work because we continue to and defense counsel continue to ask for it.

[00:19:22] Speaker 00:
I don't know whether it worked in this case.

[00:19:24] Speaker 00:
I think obviously Pellin continued to commit crimes despite the fact that he had received anger management counseling, had been assessed for mental health and substance abuse issues and so

[00:19:38] Speaker 00:
Perhaps, you know, obviously it didn't work here.

[00:19:40] Speaker 04:
That's not to say it wouldn't have worked had he made himself more amenable to treatment or had he... Remind me, what do we know about what treatment he actually received as opposed to what treatment he was supposed to receive?

[00:19:53] Speaker 04:
Was there some gap between those two?

[00:19:56] Speaker 00:
I don't think there is any gap.

[00:19:59] Speaker 00:
When he was at Hope Village, he participated in life skills training, substance abuse treatment, employment training.

[00:20:08] Speaker 00:
He participated in anger management counseling.

[00:20:12] Speaker 00:
I think the gap perhaps is that he was assessed for mental health treatment but was deemed

[00:20:19] Speaker 00:
not to require such treatment.

[00:20:22] Speaker 00:
And so he didn't receive mental health treatment beyond the anger management counseling.

[00:20:30] Speaker 00:
But again, this was all before the district court.

[00:20:33] Speaker 00:
The court was well aware of this history and didn't suggest that she didn't understand what had happened.

[00:20:43] Speaker 02:
Can I ask you a question about the criminal history part of this?

[00:20:45] Speaker 02:
So if there's an error on the criminal history because of the inclusion of the attempt, let's just say that there is.

[00:20:51] Speaker 02:
And then let's suppose, I know you have some other arguments about this, but let's just suppose that we're focused on the potential use of the armed robbery conviction as resuscitating the criminal history to get us back to the same place.

[00:21:05] Speaker 02:
If that's what we're focused on,

[00:21:07] Speaker 02:
How does the government think it works in light of Johnson to take into account armed robbery when the vehicle through which that comes in is the residual clause in the guidelines?

[00:21:21] Speaker 00:
Beckels held that the residual clause was not invalid.

[00:21:26] Speaker 00:
And so when we're looking at... As to the guidelines.

[00:21:29] Speaker 00:
I'm sorry.

[00:21:29] Speaker 02:
As to the guidelines.

[00:21:30] Speaker 00:
Yes.

[00:21:31] Speaker 00:
Under the advisory guidelines.

[00:21:32] Speaker 00:
Appellant here was sentenced under the advisory guidelines.

[00:21:35] Speaker 00:
And he was sentenced at a point when the residual clause was still in effect.

[00:21:39] Speaker 00:
And so when we're looking at whether or not the District of Colorado miscalculated his criminal history category, we have to look at the guidelines that were in effect at that time.

[00:21:49] Speaker 00:
The residual clause, nothing, there's no authority for the assertion that the residual clause was invalid at that time.

[00:21:58] Speaker 00:
And so... And what do we do?

[00:22:00] Speaker 02:
So I take your point that under Beckel's, the residual clause is still an operative thing under the guidelines and we go back and look at it as if it were.

[00:22:10] Speaker 02:
And so then we need to decide how the armed robbery conviction fits into that.

[00:22:15] Speaker 00:
Right.

[00:22:15] Speaker 00:
I mean, I think, you know, if the question is, would he, you know, if we recalculated his criminal history category today, clearly, you know, we wouldn't be relying on the residual clause because it's no longer there.

[00:22:27] Speaker 00:
So his armed robbery conviction wouldn't count in that respect.

[00:22:32] Speaker 00:
So perhaps today he would not be considered a career offender.

[00:22:35] Speaker 00:
But, you know, when we look at whether the District of Colorado erred, which is

[00:22:41] Speaker 00:
the crux of his, of Appellant's claim, we have to look at the guidelines that were in effect at the time.

[00:22:47] Speaker 00:
Now, of course, you know, our position is that we don't look to that, and in fact, the guidelines make clear that the criminal history category is not to be recalculated.

[00:22:57] Speaker 00:
So it certainly couldn't be plain error in this case.

[00:22:59] Speaker 02:
Right, no, so I'm assuming that issue away.

[00:23:01] Speaker 00:
Okay.

[00:23:01] Speaker 02:
So I'm just saying that the way that you get home on

[00:23:03] Speaker 02:
the criminal history is by use of the armed robbery conviction, and you get to do that because at that time, the residual clause in the guidelines was there.

[00:23:12] Speaker 00:
Yes.

[00:23:12] Speaker 02:
And as to that, then what do we do?

[00:23:14] Speaker 02:
So we have an armed robbery conviction.

[00:23:16] Speaker 02:
We have to decide how it fits under the residual clause at that time.

[00:23:20] Speaker 02:
And then you must be urging the conclusion that we think that armed robbery is a crime of violence for purposes of the residual clause back then.

[00:23:26] Speaker 00:
Yes, we think that armed robbery is a crime that presents a serious potential risk of physical injury.

[00:23:33] Speaker 02:
We just look at it, just generally what armed robbery is.

[00:23:38] Speaker 00:
Yes, your honor.

[00:23:39] Speaker 00:
I mean, we could go through the whole analysis.

[00:23:42] Speaker 00:
You know, I don't think that the court needs to reach that issue because here appellant can't meet his burden on prongs three and four of plain error in demonstrating that, you know, his substantial rights were prejudiced.

[00:23:54] Speaker 00:
So I think that's a thornier issue.

[00:23:57] Speaker 00:
And we were not, you know, we don't think the court needs to go there because, you know, we think it is so clear on this record that

[00:24:05] Speaker 00:
that one month difference in the guidelines range wouldn't have made any difference at all to the court's ultimate conclusion.

[00:24:16] Speaker 00:
If there are no further questions, you would ask this court to affirm.

[00:24:19] Speaker 04:
Thank you very much.

[00:24:24] Speaker 01:
I hope that I am able to make three points.

[00:24:27] Speaker 01:
Starting with Your Honor's questions about whether or not the residual clause would qualify.

[00:24:31] Speaker 01:
I will note that before Johnson was decided, the government itself did not defend the DC robbery, which is essentially indistinguishable from armed robbery because you could commit armed robbery without even brandishing a weapon.

[00:24:47] Speaker 01:
It's just in your possession.

[00:24:49] Speaker 01:
They did not defend the use of

[00:24:53] Speaker 01:
the residual clause in Inray Sealed Case, which is 548, 53D, 1085, they used only the elements clause in order to argue that D.C.

[00:25:04] Speaker 01:
robbery was a crime of violence.

[00:25:06] Speaker 01:
They did not resort to the residual clause, and that was before Beckels, and that's in this district.

[00:25:12] Speaker 01:
Second.

[00:25:13] Speaker 03:
Did you, did I misunderstand, did you say it was, there was no evidence that he had a weapon?

[00:25:21] Speaker 03:
No.

[00:25:22] Speaker 01:
No.

[00:25:24] Speaker 01:
I also want to say that the government is relying on, and this is brief, but the government, everything that the government, as far as treatment is concerned, has cited to this court was provided by Hope Village.

[00:25:34] Speaker 01:
And that is not from multiple transcripts.

[00:25:39] Speaker 01:
references and the court's order itself that is not the type of treatment that was ordered by this court.

[00:25:44] Speaker 01:
The court made several references to probation having to provide the services and that

[00:25:52] Speaker 01:
The very first offense, she actually gave the defendant more time because she wanted probation to set up outside programs, outside of Hope Village.

[00:26:02] Speaker 01:
Those do not count.

[00:26:04] Speaker 01:
Those in-house programs are not supervised in any way by probation.

[00:26:09] Speaker 01:
They are voluntary programs.

[00:26:10] Speaker 01:
He did not have to participate in them.

[00:26:12] Speaker 01:
They are not of the same quality and they are, again, not supervised.

[00:26:18] Speaker 01:
Finally, I just want to say that the reasoning

[00:26:21] Speaker 01:
of the district court throughout the proceedings in sentencing Mr. Duckett is completely inconsistent with its 24-month sentence.

[00:26:34] Speaker 01:
unless we assume that she didn't understand that he was not receiving the treatment.

[00:26:40] Speaker 01:
Every prior time that she saw Mr. Duckett, she made clear that it was in the public's best interest, not even just Mr. Duckett's, but the public's best interest that he received treatment and that, in fact,

[00:26:54] Speaker 01:
jail was not going to do anything to either help the public or help him.

[00:26:58] Speaker 01:
And the statement that she made at sentencing was essentially that she said, I've been persuaded to give you chances in the past to make better choices, make something of your life, and to do better.

[00:27:10] Speaker 01:
Sentencing him just to a lenient sentence does not help him to make better choices.

[00:27:15] Speaker 01:
It doesn't help him to do better or absent treatment, training, things that she thought she had provided him.

[00:27:23] Speaker 01:
Probation implied that he was getting one-on-one treatment at a previous hearing, and the court asked... I think we have your argument.

[00:27:33] Speaker 01:
Thank you.

[00:27:34] Speaker 04:
No further questions from my colleagues.

[00:27:35] Speaker 01:
Thank you.

[00:27:36] Speaker 04:
The case is submitted.