[00:00:02] Speaker ?:
Case number 18, there's 388, United States of America versus Harry Heels, appellate.

[00:00:07] Speaker 00:
Mr. Katzoff for the appellate, Mr. Hansford for the appellate.

[00:00:13] Speaker 01:
Mr. Katzoff, morning.

[00:00:16] Speaker 01:
My name is Howard Katzoff.

[00:00:18] Speaker 01:
I represent Harry Keels in an appeal from the District Court on a sentencing appeal.

[00:00:24] Speaker 01:
The issues presented and briefed involve whether the District Court erred in departing upward

[00:00:33] Speaker 01:
based on the inadequacy of his criminal history, Category 6, from a 30 to 37-month guideline range to a 57 to 71-month range, and whether the alternative explanation for an upward variance was error in failing to provide a sufficient explanation.

[00:00:56] Speaker 02:
The upward departure is... Just on that last point, I take it from your previous whether it's plane error.

[00:01:03] Speaker 02:
Is that right?

[00:01:04] Speaker 02:
The variance question?

[00:01:06] Speaker 01:
Your Honor, that's the way I viewed it when I looked at the record because there wasn't a specific objection.

[00:01:13] Speaker 01:
There were objections in general to the variance, both in the written pleading and in the

[00:01:21] Speaker 01:
at the hearing, but as to the specific failure, the sufficient explanation in that manner, it wasn't presented.

[00:01:32] Speaker 01:
So I've relied on the four cases that I've cited that this Court has previously found for plain error.

[00:01:39] Speaker 02:
And you put it to us as the standard being plain error?

[00:01:42] Speaker 02:
I did.

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

[00:01:43] Speaker 02:
And the only question with respect to variance is the procedural question of sufficient explanation.

[00:01:49] Speaker 01:
I believe there's also substantive reasonableness, which applies to both the departure and to the variance.

[00:02:00] Speaker 02:
So again, in your brief, you raise the substantive reasonableness with respect to the departure.

[00:02:05] Speaker 02:
But in the section on the variance, you say the first step of that review and the only one at issue here

[00:02:17] Speaker 02:
requires the court to consider whether the district court committed any significant procedural error.

[00:02:22] Speaker 01:
I believe that may have been inartfully stated that as to the only procedural error that was being raised with regard to the variance as opposed to

[00:02:39] Speaker 01:
I was treating it as if substantive reasonableness applied without necessarily the need to preserve or specifically object in the same way that the procedural variance argument required.

[00:02:57] Speaker 02:
Well, I think you're right in that you don't need to have raised it, but that it doesn't need to have been raised below.

[00:03:06] Speaker 02:
You can look again when we get to rebuttal, but your brief has the only section about the sentence being unreasonable states the extent of the departure sentence was unreasonable.

[00:03:20] Speaker 02:
I don't see any part of the brief that discusses the variance being unreasonable.

[00:03:24] Speaker 01:
I will look.

[00:03:25] Speaker 01:
When I reread in preparation, I saw that I had indicated that, and I thought that that's what I intended, but perhaps

[00:03:36] Speaker 01:
Perhaps I wasn't clear about that.

[00:03:39] Speaker 01:
I thought that the substantive applied to both arguments.

[00:03:43] Speaker 02:
If you wouldn't mind, could we start with the variance issue, because as you've indicated, you have to win on both, because it was an alternative, and variance is always the harder one.

[00:03:55] Speaker 01:
The argument with regard to the variance is that the explanation

[00:04:05] Speaker 01:
is more of a recitation of the negative information in the pre-sentence report and not really an adequate explanation or justification for explaining why this case falls outside the normal 3553A factors.

[00:04:26] Speaker 01:
why this criminal history category 6 in this case, which is the highest criminal history, didn't adequately address or account for the 3553 factors.

[00:04:41] Speaker 03:
You don't think the repeated commission of drug-related offenses, does that work?

[00:04:47] Speaker 03:
Mr. Court was pretty careful to explain that, wasn't it?

[00:04:50] Speaker 01:
The court did explain that the repeated drug offenses was a factor that the court considered.

[00:04:59] Speaker 01:
I would submit that it's much less significant in this particular case because the drug conduct was so dated in relation as compared to

[00:05:16] Speaker 01:
For example, I think the case the government may have relied upon or talked about in terms of similar conduct being permissible was the Molina case, which was a legal reentry.

[00:05:27] Speaker 01:
But that was more conduct, more timely.

[00:05:33] Speaker 01:
The conduct here really that was recited in great detail went back to 15 years ago.

[00:05:43] Speaker 03:
Do you have cases that show that in the variance context,

[00:05:46] Speaker 03:
that matters, that that's significant?

[00:05:52] Speaker 03:
Other guidelines, perhaps, but invariance analysis?

[00:05:55] Speaker 01:
I'm not sure that I saw any case that specifically said that there's a point in time where it becomes

[00:06:07] Speaker 03:
I don't think there is.

[00:06:08] Speaker 03:
I don't think there is.

[00:06:09] Speaker 01:
I think that's... But I think that in this case, what happened is the court in addressing the 3553 factors just spent a great deal of time and an inordinate amount of time addressing the prior

[00:06:30] Speaker 01:
you know, drug cases which were 15, 17 years old and didn't really address the other factors.

[00:06:42] Speaker 01:
In other words, my position is that the judge in properly sentencing or barring from

[00:06:50] Speaker 01:
from a particular guideline here, where it's category six, where the guidelines have already taken into account recidivism, including drug recidivism.

[00:07:03] Speaker 04:
You know, the difference between... I mean, the judge was clearly struck by the fact that the guidelines took these into account with omissions, and he was concerned about the omissions.

[00:07:16] Speaker 04:
Let's assume that in terms of departure, he was barred from that consideration.

[00:07:24] Speaker 04:
He was not barred in making a variance.

[00:07:28] Speaker 04:
And he was also very struck by how the 39-month sentence

[00:07:37] Speaker 04:
produce no change of conduct.

[00:07:43] Speaker 04:
The defendant gets what looks like a very severe sentence, a quite severe sentence, and persists.

[00:07:54] Speaker 04:
It's understandable, it seems to me, that he was struck by that.

[00:07:57] Speaker 01:
You know, it's a fair comment, but

[00:08:01] Speaker 01:
But when you look at the sentencing, the totality of the sentencing, it really takes the court

[00:08:09] Speaker 01:
misapplied its focus and it didn't really look at this particular defendant in category six for the particular offense conduct.

[00:08:20] Speaker 01:
The court got the conduct wrong in a number of ways.

[00:08:24] Speaker 01:
He made Mr. Keels much more culpable than the facts in the... I thought he recognized that he was a big player in the overall conspiracy,

[00:08:35] Speaker 04:
We're talking only about possession with intent to distribute.

[00:08:41] Speaker 04:
I'm sorry, where do you think he overstated it?

[00:08:44] Speaker 01:
Well, he made comments that he was selling drugs in a burning place and poisoning the streets and the community and those kinds of comments.

[00:08:56] Speaker 04:
That's geographically correct, right?

[00:08:57] Speaker 01:
It wasn't geographically correct as to Mr. Keels.

[00:09:00] Speaker 04:
I mean, poison is a rhetorical phrase here.

[00:09:05] Speaker 04:
It's certainly one commonly used and has certain accuracy.

[00:09:12] Speaker 01:
It's somewhat inflammatory, but it didn't really apply to the facts in this case.

[00:09:19] Speaker 01:
The facts show that over a two-year investigation, Mr. Keel showed up on a wiretap.

[00:09:24] Speaker 01:
for just a series of calls and it appears at most there's evidence that there appeared to be two transactions where he purchased.

[00:09:37] Speaker 01:
There's no evidence of him selling, there's no evidence of him being on the street, there's no evidence of

[00:09:42] Speaker 01:
him having any activity in Bernie Place, those kind of comments suggest that he punished Mr. Keel's for culpability that was well beyond Mr. Keel's culpability.

[00:09:56] Speaker 01:
And he did that by turning the focus completely onto the criminal history and to the prior drug defenses, which were all

[00:10:06] Speaker 01:
much, much earlier, except for the 2006 case, which was not quite as dated.

[00:10:13] Speaker 01:
And the unscored conduct was all 1997.

[00:10:18] Speaker 01:
It was a juvenile matter which shouldn't be considered, perhaps could be looked at.

[00:10:27] Speaker 01:
But a 99 possession, a 2003 possession, and a 2002 BRA, all very dated

[00:10:36] Speaker 01:
conduct that was unscored that he was relying on.

[00:10:42] Speaker 04:
Do you accept the government's argument at page 39-40 of the brief?

[00:10:50] Speaker 04:
They summarized the cases that you point to, other than the one where there was no explanation, as reversals for the explanations

[00:11:01] Speaker 04:
either were not particularized to the defendant or applied equally to everyone convicted of that crime who was in that guidelines range.

[00:11:08] Speaker 04:
And those two overlap, obviously.

[00:11:15] Speaker 04:
And of course, both of them are slippery in the sense that particularized raises the question, how particularized?

[00:11:22] Speaker 04:
Assumedly not a requirement that be unique.

[00:11:27] Speaker 04:
But do not the items specially relied on by the court fit within those criteria, or would you object to the government's summary of those cases?

[00:11:44] Speaker 01:
I think that the government oversimplifies those cases.

[00:11:49] Speaker 01:
I think that there are parts of those cases in this case where the court fails to particularize and specify why the category 6, offense level 12, for somebody similarly situated was

[00:12:08] Speaker 04:
not sufficient, not... I mean one difficulty that the court had and we have is that nobody's created a spreadsheet showing

[00:12:22] Speaker 04:
trying to compare swarms of people with those characteristics, those numbers.

[00:12:29] Speaker 04:
So we don't know.

[00:12:30] Speaker 04:
But the judge certainly identified things that struck him as special, and it's hard to show that they were not special.

[00:12:41] Speaker 01:
The judge chose things where, and I think maybe similar to the Duane Brown case, where

[00:12:50] Speaker 01:
where the factors were really accounted for, the recidivism, the difference from category one to category six.

[00:12:57] Speaker 01:
And so an individual with this particular offense conduct 2.8 to 5.6 grams, one or two transactions from a two-year prison.

[00:13:10] Speaker 04:
I was struck by your argument that at the low end of the ranges, being in category six, tripled the minimum

[00:13:19] Speaker 04:
But I think that's my position.

[00:13:24] Speaker 04:
The explanations don't seem at all crazy.

[00:13:31] Speaker 04:
Maybe that's not the right scenario.

[00:13:33] Speaker 01:
I don't think that I've indicated that I believe them to be crazy, but I believe them to be legally incorrect in that they take

[00:13:41] Speaker 01:
into that they're really double punishing for conduct.

[00:13:45] Speaker 01:
If a judge was to go through and read every negative piece of information, 22 positive drug tests when somebody was 21 years old in the 2001 case, today, if somebody were to say 16 points is way off the charts.

[00:14:03] Speaker 04:
The whole point of a variance is an idea that a court can reasonably

[00:14:11] Speaker 04:
regard the guidelines as inadequate, as not taking into account the whole picture.

[00:14:20] Speaker 01:
But the court still has to use it as a starting point and generally has to find reasons as to why the guideline is not appropriate.

[00:14:31] Speaker 01:
And in this case,

[00:14:33] Speaker 03:
It seems to be you're quibbling with the whole picture.

[00:14:35] Speaker 03:
The judge is trying to paint the whole picture here.

[00:14:38] Speaker 03:
Going back to age 21 seems irrelevant to you.

[00:14:42] Speaker 03:
The judge thought it was not irrelevant.

[00:14:45] Speaker 03:
As I understand his reasoning, correct me if I'm wrong, there's a large picture here, there's a large history here, and a criminal defendant who seems impervious to previous punishments.

[00:14:56] Speaker 03:
So what's wrong with the judge citing

[00:15:00] Speaker 03:
as much as he can about this history.

[00:15:02] Speaker 03:
He's trying to paint a picture of recidivism or calcitrus.

[00:15:07] Speaker 01:
There's nothing wrong with the court observing it.

[00:15:09] Speaker 01:
There's nothing wrong with the court considering it.

[00:15:11] Speaker 03:
The court can consider a great deal, but when the court then relies... The point of that is to say this is not the heartland sort of defendant here.

[00:15:21] Speaker 03:
This is an unusual defendant.

[00:15:24] Speaker 01:
It didn't say that is the problem that I found going back and looking at.

[00:15:31] Speaker 01:
It doesn't say that this isn't the heartland of a Category 6 defendant for a minor drug offense.

[00:15:39] Speaker 01:
The guideline that's calculating Category 6 for this minor offense and the nature of

[00:15:46] Speaker 01:
of the conduct that's recited is pretty standard and pretty typical for a category six defendant.

[00:15:54] Speaker 01:
He treats it as if it's a category one or category two and then talks about how outrageous it is basically to have this recidivist conduct.

[00:16:08] Speaker 02:
The court said he was relying in part on the similarity to the previous offenses and

[00:16:15] Speaker 02:
we've said in Ransom and Molinaro that that's an acceptable ground either for a variance or for a departure if it's a repeat of similar offenses.

[00:16:30] Speaker 01:
And I think Ransom really had a couple of other factors that seemed to flavor it and that is that

[00:16:38] Speaker 01:
If I'm remembering correctly, Ransom had a number of victim statements and victim impact issues that were stressed.

[00:16:47] Speaker 02:
But we upheld on the court's consideration of the fact that he committed fraud after he had previously been convicted of committing fraud.

[00:16:59] Speaker 02:
The question is whether these factors are okay.

[00:17:01] Speaker 02:
It's not a question of what everything adds up to.

[00:17:04] Speaker 02:
With respect to the question of the time lag, at least procedurally, the district court answered your argument.

[00:17:14] Speaker 02:
The district court says your attorney points out the 11-year gap.

[00:17:18] Speaker 02:
This is not as impressive as it looks at first because you were incarcerated for at least five of those years.

[00:17:24] Speaker 02:
The time you were out, you managed to rack up three other convictions.

[00:17:28] Speaker 02:
Phil, whether this is something anybody would do on their own, de novo, he answers the question, you know, an explanation for why the, the judge gives an explanation for why the gap doesn't matter to him.

[00:17:47] Speaker 02:
So why isn't, what more of an explanation would be required?

[00:17:55] Speaker 01:
None is so sure that more of an explanation for that, the court made its determination that it didn't place as much significance as counsel did, obviously, on that factor.

[00:18:08] Speaker 01:
But the conclusions that are drawn, the re-arrests were not similar conduct, were not drug conduct.

[00:18:16] Speaker 01:
And there's been no real claim that dissimilar conduct was

[00:18:24] Speaker 01:
was necessarily the factor in terms of just the repetition.

[00:18:28] Speaker 01:
I guess the bottom line

[00:18:33] Speaker 01:
complaint of craziness, if I can use that term.

[00:18:39] Speaker 01:
I think reasonableness is the word we like to use around here.

[00:18:43] Speaker 01:
Reasonableness is at the end of the day that the judge sort of flipped the recidivism factor and never really addressed

[00:18:54] Speaker 01:
the totality picture of saying category six defendant for this offense that these things aren't adequately considered and this is outside the mind run case for this category six defendant for this case and therefore I'm going to double the sentence where no one

[00:19:17] Speaker 01:
requested a departure where probation recommended 33 months, where the government recommended 30 months, where people very familiar with the case didn't come close to recommending a guideline range, an upward variance, an upward departure, or the ultimate sentence that the court imposed.

[00:19:37] Speaker 01:
Okay.

[00:19:38] Speaker 01:
And I'm well over.

[00:19:39] Speaker 02:
Yeah, I just want to see if any... Okay, thank you.

[00:19:42] Speaker 02:
Thank you.

[00:19:52] Speaker 00:
Good morning and may it please the court, Eric Hansford for the United States.

[00:20:00] Speaker 00:
Based on the court's questions, we agree that the easiest way to resolve this case is as a permissible upward variance here, that the district court did impose the variance in the alternative to the upward departure.

[00:20:15] Speaker 00:
And we do think that the district court's explanation for why the original guidelines range of 30 to 37 months did not adequately capture the defendant's full criminal history

[00:20:29] Speaker 00:
There was an adequate explanation for that, and that was particularized to the defendant in ways that those four plein air variance cases were not.

[00:20:39] Speaker 04:
Can I pursue a question that I raised implicitly earlier?

[00:20:42] Speaker 04:
Yes.

[00:20:46] Speaker 04:
identification of the types of things that a sentencing judge needs to point to to explain a variance.

[00:20:58] Speaker 04:
And they seem intuitively to make sense.

[00:21:02] Speaker 04:
On the other hand, they are also very slippery in the sense what is particularized

[00:21:08] Speaker 04:
And actually the Department of Justice, I forget whether it's an office or a bureau or what it's called, but it does endless statistical analysis of lots of important things relating to criminology.

[00:21:29] Speaker 04:
And yet we never have any data.

[00:21:32] Speaker 04:
which might, granted it's hard because there are so many different variables of different characteristics, so to turn it into something that points a clear message would be hard, but we never see any doubt.

[00:21:48] Speaker 00:
Sure.

[00:21:49] Speaker 00:
So I think there are maybe two parts to that question.

[00:21:53] Speaker 00:
One is on what's particularized.

[00:21:56] Speaker 00:
And at least as we see it, what's particularized to the defendant is parts of the defendant's criminal history that aren't fully reflected in the original guidelines range.

[00:22:08] Speaker 00:
And so what Molina and Taylor recognize is that a defendant's

[00:22:13] Speaker 00:
Prior commission of the same crime, repeated commission of the same crime is not reflected in the criminal history score because the criminal history score treats all crimes the same.

[00:22:25] Speaker 00:
This court has also cited that as a factor in upward variances in multiple cases.

[00:22:31] Speaker 00:
We cite ransom and nicely in the briefs.

[00:22:34] Speaker 00:
There's also Jackson, which we cite for a different point in the briefs, but 848 F3 at 462 to 463.

[00:22:43] Speaker 04:
Now, you say that aren't reflected in similar defendants.

[00:22:55] Speaker 04:
But what do we know about that?

[00:22:57] Speaker 04:
Because we do know that the guidelines themselves exclude various things, which

[00:23:04] Speaker 04:
can be seen as having a relation to the risk of recidivism and also other aspects of what's expected to be accomplished by punishment.

[00:23:17] Speaker 04:
So we don't know as much as you're suggesting we do know.

[00:23:22] Speaker 00:
Well, I think the rationale of Molina and those cases is that the guidelines don't consider the nature of the prior sentences.

[00:23:33] Speaker 00:
It's just the extent of them and that a defendant who, and so that is not reflected in the original guidelines range and is therefore a basis for an upward departure variance.

[00:23:44] Speaker 00:
But as to the

[00:23:45] Speaker 00:
question that the court is asking about.

[00:23:48] Speaker 00:
We do not understand, as Chief Judge Garland's questions indicated, the defendant to be raising a substantive reasonableness challenge here.

[00:23:59] Speaker 04:
We don't think that there's any... No, whatever the situation on that, we are evaluating explanations and you

[00:24:09] Speaker 04:
in your brief developed a formula that on its face sounds reasonable for evaluation.

[00:24:15] Speaker 04:
Sure.

[00:24:16] Speaker 04:
And I agree that it sounds reasonable.

[00:24:19] Speaker 04:
My only problem is that I'm not entirely sure whether we know enough to apply it with much confidence.

[00:24:30] Speaker 00:
I do think Molina's explanation there, which I think I may just be repeating myself, but I think Molina's explanation there says that the guidelines do not adequately capture that.

[00:24:44] Speaker 00:
But just in terms of other benchmarks to weigh the defendant's sentence against.

[00:24:50] Speaker 04:
Molina expresses that as a matter of logic.

[00:24:57] Speaker 04:
It seems to me, in fact, it's a matter, it's an empirical matter.

[00:25:00] Speaker 04:
What is the relationship between the similarity of a succession of offenses and the prospect of recidivism?

[00:25:08] Speaker 04:
Maybe that intuitively looks as if there's higher probability.

[00:25:11] Speaker 04:
We don't actually have any data on that.

[00:25:15] Speaker 04:
I guess that I think that is true.

[00:25:26] Speaker 00:
I think it's based more on the intuitive logic that a defendant who commits one crime gets a 39-month sentence

[00:25:34] Speaker 00:
and is not deterred by that sentence, needs a higher sentence to be deterred in the future.

[00:25:42] Speaker 00:
Just in terms of those benchmarks, the sentence here does not come anywhere close to the statutory maximum of 20 years.

[00:25:49] Speaker 00:
And up until this court's decision in Winstead, the defendant would have been treated as a career offender.

[00:25:55] Speaker 00:
He would, in five other circuits, be treated as a career offender.

[00:25:59] Speaker 00:
And that would yield a 12 to 16-year sentence or guidelines range.

[00:26:06] Speaker 00:
And so the defendant's sentence here is certainly not out of whack with those sorts of benchmarks.

[00:26:13] Speaker 04:
Those other circuits have rejected.

[00:26:17] Speaker 04:
Our view, we're just haven't reached it.

[00:26:19] Speaker 00:
As I understand, I guess it didn't dig into the underlying circuits.

[00:26:23] Speaker 00:
As I understand Winstead, Winstead says five other circuits have reached the opposite conclusion, meaning that attempted... That sounds like a holding, right?

[00:26:32] Speaker 04:
Or five holdings.

[00:26:33] Speaker 00:
Right, so attempted distribution in those circuits would qualify for career offender status.

[00:26:40] Speaker 00:
We also, just on the whether or not there's been a time lag or whether this is unduly dated conduct, we would note that the defendant at the time of this offense was still on supervised release for the underlying attempted distribution.

[00:26:58] Speaker 00:
And so that conviction has not at all faded into the background.

[00:27:04] Speaker 00:
And we would also just note that although the guidelines do take into account the, do give a score for the attempted distributions, Molina is a Category 6 case.

[00:27:16] Speaker 00:
And so Molina says you can vary, depart upwards from Category 6 based on similar prior convictions.

[00:27:26] Speaker 00:
I'm happy to address the upward departure if there are any questions on that.

[00:27:30] Speaker 00:
But we do think the easiest way for this court to resolve the case is based on the upward variance.

[00:27:36] Speaker 00:
Isn't that always the easiest way?

[00:27:38] Speaker 02:
No, seriously, the standard for reviewing a variance after Booker is considerably different than the standard for considering technical aspects of a departure.

[00:27:53] Speaker 02:
That was the whole point of Booker, to make it

[00:27:55] Speaker 02:
not the guidelines advisory, so it would always be easiest, not just in this case.

[00:28:01] Speaker 02:
I think that is true.

[00:28:03] Speaker 02:
Any questions?

[00:28:04] Speaker 02:
Thank you.

[00:28:05] Speaker 00:
We'd ask the court to affirm.

[00:28:08] Speaker 02:
The government has kindly left you one minute and 48 seconds of his time.

[00:28:12] Speaker 01:
Well, Your Honor, I was going to...

[00:28:16] Speaker 01:
respond to the court's question.

[00:28:18] Speaker 01:
It appears I may have taken Judge Kavanaugh's advice from Brown's dissent and perhaps I relied, it appears I relied in the brief exclusively on the plain error standard, choosing not to rely on the substantive reasonableness.

[00:28:35] Speaker 01:
When I was reviewing it, I glossed over that and didn't realize that.

[00:28:39] Speaker 01:
No problem.

[00:28:39] Speaker 01:
But it appears that's the answer to that question so the court's correct.

[00:28:44] Speaker 01:
Otherwise, I think I've addressed, and the court gave me additional time, so I would ask the court to find that the district court did commit error, plain error, that it did affect and prejudice Mr. Keels and that it

[00:29:08] Speaker 01:
otherwise meets the plein air test that's been set up.

[00:29:13] Speaker 02:
Thank you, Mr. Katzoff.

[00:29:14] Speaker 02:
Katzoff, you took this case under appointment from the court and we're grateful for your help.

[00:29:18] Speaker 02:
Thank you.

[00:29:19] Speaker 02:
We'll take the matter under advisement.