[00:00:02] Speaker 02:
This on board is again in session.

[00:00:04] Speaker 02:
Be seated, please.

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Case number 17-38-8, the United States of America versus Julian Zabata Espinosa, also known as Fulian Appellant.

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Mr. Stewart for the Appellant, Mr. Linens for the Appellate.

[00:00:20] Speaker 02:
Good morning.

[00:00:21] Speaker 01:
Before we go too far, I'd like to offer my profound and sincerest apologies for not being present on time this morning.

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As a practice, I am not late for court and I do not miss court.

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And so let me just say that this is a, I'm extremely embarrassed and I apologize to the court.

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May it please the court.

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Mr. Zapata-Espinoza, I think that really what the question that this case with the government's response, what it boils down to is whether or not this appeal waiver that's present in the plea paperwork absolves the district court of the requirements of 3553A and C through F

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and then in the sentencing guidelines to state with some specificity to the defendant or Mr. Zapata-Espinosa why it is giving the sentence that it's giving.

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And I think that when parties enter into a plea agreement, there are, as I explained in my reply, that the parties are giving up certain rights.

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On the one hand, the government is agreeing to limit the manner in which they're pursuing the case through a trial.

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The defendant is giving up certain rights, including what we would expect would be a appeal waiver.

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In this case, that appeal waiver also comes with certain guarantees.

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And that is that he would be sentenced according to 3553A.

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And in this case, that didn't happen.

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Really, the problematic point in this case is that when Mr. Zapata-Spanosa was sentenced, he was sentenced along with four other, or three other individuals, these other codefendants, some of whom, there were additional codefendants who had been sentenced, I think, the previous day.

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The district court, during the sentencing, while imposing sentence, said that they had listened to counsel's arguments, they had read counsel's submissions, and without addressing

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Uh, Mr. Supposa directly then went on to impose a sentence.

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What's your argument for why the appeal waiver is an operative?

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Because under our decisions, the burden's on you to show that the appeal waiver.

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I understand.

[00:03:13] Speaker 01:
Yes.

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And so in my response to that issue, uh,

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When Mr. Zapata entered into that agreement and agreed to waive his appeal, he was doing so with the understanding that he would be sentenced according to the provisions of 3553A and then C through F.

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And as the government pointed out, the language of that appeal waiver in the plea document was crystal clear.

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I think also that the language is crystal clear about what the defendant's expectations were about how he would be sentenced.

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I don't even understand your argument, Mr. Stewart.

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Are you relying on the district judge's failure to comply with Rule 11B1N and make sure in open court that the defendant understands, in particular, the terms of the plea agreement provision waiving the right to appeal?

[00:04:13] Speaker 01:
Well, he failed to do that.

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Right.

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I didn't see you relying on that or citing to that, and then I didn't see you

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addressing our precedents, you know, Hanley, Brown, Shemarani, and the circumstances under which an appeal waiver is or is not a barrier to appeal.

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I mean, you're arguing a merits issue without an argument about why

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What you characterize as a crystal clear appeal is not a barrier.

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Well, I think that was the government.

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So that's the way the government characterized it in their brief.

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Why isn't it a barrier?

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Why isn't it a barrier?

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Yes.

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When one of the cases that the government relied on was piles and in piles there were no co-defendants and there were a number of statements that were made throughout that hearing.

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You're going to the merits.

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I understand that your house is not an appeal waiver case.

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So with the.

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So I think the first issue is that it wasn't discussed during the colloquy.

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The second issue is whether or not to what extent it affected Mr. Zapata-Espinoza's substantial rights as a result of that failure.

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And... I thought part of your concern was that while the district court made a reference, it made a generalized reference.

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to waivers of appeal with certain exceptions, but didn't spell out the exceptions.

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So your client was not clear.

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Is that your argument?

[00:06:12] Speaker 01:
No, I think so.

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If that's not your argument, then what is?

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Well, of course, that's where arguing the issue is.

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Generally, I think that when you have that failure at to address one of the issues that or one of the waivers that is present in the plea agreement and then there's no discussion about or there's no opportunity for the defendant to be advised about how though that waiver would affect other provisions within

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the plea agreement.

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And so there was just no discussion of that.

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Do you know, you are arguing that the exceptions were not explained?

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With?

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I mean, what's the error that you, the district court made?

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Is that he didn't, I thought your brief said, he didn't explain what the defendant could actually appeal.

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He made this general reference to waiving your right to appeal, subject to certain exceptions.

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great uh... so

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And perhaps I'm not doing an effective job of articulating what our position is.

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But just very simply, tell us, what is the error you think the district court made?

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I think the error is that by initially failing to address the waiver issue, and then with- He addressed it, but only in general terms.

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Very general terms, and not sufficiently.

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And then as a result of that, there were other rights that were

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expected, like how he would be sentenced.

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And so there was no conversation by not addressing the appeal waiver effectively during the plea colloquy.

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The defendant then had no opportunity to understand how that provision interacted with other provisions of the plea agreement and specifically how he could expect to be sentenced.

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Let me ask you this.

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So put aside anything that happened at the plea hearing.

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If you just read the waver provision, do you disagree that the waver provision covers this very issue?

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So in a vacuum, I think yes.

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But then the question is... You think yes, you agree that this would have been waived?

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If not for the issues that occurred subsequently.

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Okay.

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So just on the plain reading of the waiver provision, it controls, but then something else must have happened to have rendered the waiver unenforceable.

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So the question has to be what happened that rendered the waiver unenforceable.

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I didn't see anything in your brief, in your reply, because your reply brief is the one that addresses this.

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I didn't see anything in your reply brief that talks about what happened at the plea hearing or

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Maybe I missed it.

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So at the plea hearing, there's the failure to address the waiver sufficiently.

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Right now, if there if the court had and we know that's not enough in and of itself because we know from our decisions that even if the district court doesn't engage in the role of and call call it about the appeal waiver.

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The defendant still has the burden to show that that resulted in a violation of his or her substantial rights.

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Of course.

[00:09:40] Speaker 03:
Right.

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So you're saying that this comment by the district judge, and I think the only comment in the plea colloquy or anywhere by the district judge in open court was, and you understand under some circumstances, you or the government may have the right to appeal whatever sentence I impose, right?

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So your position is that that created confusion or conflict about the scope or extent of the written of Kielwerfer?

[00:10:13] Speaker 01:
To a certain extent, yes.

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I think that at that moment, I don't think that

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The parties couldn't anticipate how the sentencing would play out.

[00:10:24] Speaker 03:
But it, but- I don't, I didn't, I didn't- That is a separate question.

[00:10:28] Speaker 01:
Yes, ma'am.

[00:10:29] Speaker 03:
That is the merits.

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That is the unknown that the ex-anti-waiver weighs.

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So it doesn't bear- I understand.

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On the, on the enforceability or not.

[00:10:43] Speaker 01:
And so the issue then is- I didn't know it.

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running low on time, but the issue then is when you have that vagueness that is interjected during the plea hearing and you have other provisions that create certain responsibilities for the court and an expectation in the defendant as to how they're going to be sentenced, then that is where the substantial... Where did you raise the vagueness issue?

[00:11:13] Speaker 05:
Because I didn't see that anywhere in your brief.

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I didn't see you ever say that something the district judge said during the plea hearing created vagueness.

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I thought the way you started your argument today was that you weren't making that argument, but now it sounds like you are making that argument.

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I just didn't see that anywhere, but you can point me to it.

[00:11:33] Speaker 05:
I'm happy to.

[00:11:34] Speaker 01:
I'm not sure that I made the argument the same way that I just articulated it right now in response to the court's questioning.

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I thought the gist was you were arguing that the defendant asked for a lower sentence.

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He didn't get it, and the judge never explained

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why he didn't give him the lower sense.

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That's one of your arguments.

[00:12:01] Speaker 01:
That's your merits argument.

[00:12:04] Speaker 04:
Right, but how do you get over this initial hump?

[00:12:06] Speaker 01:
So then, with the government raising the issue of the waiver, sort of the gist of that, and perhaps I was not specific enough in how I addressed that issue, is exactly, how do we get to the merits argument?

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And so when the- Well, as you know from our president,

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We're enforcing these waivers.

[00:12:32] Speaker 01:
Absolutely.

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And then you've got the burden.

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And I've dissented in one case, but I couldn't persuade my colleagues.

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So you have the majority opinion in Lee.

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And that's the binding law on this circuit.

[00:12:45] Speaker 01:
I understand that.

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And there it was clear that the defendant was relying on subsection N.

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And Lee does the totality of the circumstances about voluntariness.

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Your client is not an English speaker?

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That's correct.

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I know that the plea agreement at paragraph 11 in the sealed appendix

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provides that he's entitled to a certified interpreter to verbally translate the plea agreement.

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Was that ever done?

[00:13:13] Speaker 01:
Do you know whether... Yes, my understanding is that all of these documents were translated to him in their entirety prior to the plea hearing.

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So he wasn't just walking in and having this English document that's maybe been shown to him translated for him for the first time.

[00:13:31] Speaker 01:
My my recollection is that there is but I couldn't address they couldn't point the court to exactly where that is the Do not like I don't recall there was a question about the argument that I'm not sure that you're making but that at least has been you said have you flushed out more in more detail here at the podium, which is

[00:14:01] Speaker 05:
there was ostensibly some vagueness in what the district judge said during the plea hearing.

[00:14:06] Speaker 05:
The relevant statement, I think, is the JA 41.

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The district court says, and you understand under some circumstances, you or the government may have the right to appeal whatever sentence I impose.

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That's the entirety of the reference to this, I believe.

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What's wrong with that?

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Why doesn't that exactly say what the plea agreement says?

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Because under the waiver provision, there are some things that can be appealed, and there are some things that can't.

[00:14:34] Speaker 01:
And I think that had the court made a more complete description of what was being waived, then that would have, if there would have been any misunderstanding about what Mr. Zabatos-Benz was allowed to appeal or not, I think that

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making a more complete statement to him during the colloquy would have made the waiver completely enforceable.

[00:15:02] Speaker 05:
Well, it certainly would have been more clear had more been done.

[00:15:06] Speaker 05:
There's no doubt about that.

[00:15:07] Speaker 05:
That's always the case.

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But we also know that had nothing been said, that still wouldn't mean that your client would win because that's Lee.

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So then the question is, was something that was said, was something that was said make it worse than nothing being said?

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Because if nothing's said, then under your own argument, you can't get home because the plea agreement says what it says.

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So the question is whether the something that was said gives your client an argument that they wouldn't otherwise have had.

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And I'm not sure what that argument would be because the court just says that under some circumstances, you or the government may have the right to appeal.

[00:15:47] Speaker 05:
And that just seems like that's true.

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That's what the waiver provision does say.

[00:15:52] Speaker 05:
Right.

[00:15:53] Speaker 01:
So two points.

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I guess the first one is whether or not this vagueness opens up some sort of an ability for him to challenge the waiver.

[00:16:03] Speaker 03:
Right.

[00:16:03] Speaker 03:
As under United States versus Brown 2018 version where we held that the courts

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statement in open court, you may even have an opportunity to appeal the sentence on grounds of reasonableness, that that did create some conflict with the written agreement.

[00:16:22] Speaker 03:
And I think the question is, are you making a similar argument here, and if so, can you explain how that conflict, wherein that conflict occurs?

[00:16:37] Speaker 01:
Yes.

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So I think I am making a similar argument here, at least I'm trying to.

[00:16:42] Speaker 01:
And where that becomes important is with these other provisions that describe how he's to be sentenced.

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And so there is the appeal waiver, but then also language that

[00:16:58] Speaker 01:
It just explains that the court must follow 3553A and C through F. At the time of sentencing, he doesn't know how that's going to play out when it comes time for him to be sentenced, but it does create a certain expectation.

[00:17:16] Speaker 01:
And with this big statement made by the court.

[00:17:20] Speaker 01:
Well, there may be some circumstances where you're able to appeal then after when it comes to him being sentenced and the court addresses him along with his co-defendants and makes those general statements about having read the

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pleadings and listen to the argument and sitting that they agree with the government and then imposing the sentence that the government recommended.

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That removes the requirement or ignores the requirement that he be addressed specifically.

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What's the pressures from that?

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And this is assuming the merits and going forward.

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What should the judge have said

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that the judge didn't say.

[00:18:04] Speaker 03:
Maybe another way of putting it is the defendant believed that had the judge only had to explain what he did, he would have realized that Zapata should have gotten a lower sentence like one of the other defendants, or is there some inconsistency between the way the pluses and minuses were weighed in his case versus the way similar

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alert factors away than in other cases.

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It's just not entirely clear to me what the merits, what the prejudices.

[00:18:36] Speaker 01:
And I think this is one of the problems when a court doesn't address someone specifically.

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Then on appeal, it's difficult to speculate as to what the tipping point or the important arguments were in imposing the sentence.

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And so as some of the case law points out, we're left to guess.

[00:18:54] Speaker 03:
He must have a sense of, I didn't get my day in court because if the judge had only acknowledged fill in the blank, I would have gotten a lower sentence.

[00:19:03] Speaker 03:
I don't have a feeling of that from your brief.

[00:19:06] Speaker 03:
What is it that was because unexplained, unrecognized, that could have made a positive difference for your client?

[00:19:22] Speaker 01:
First, I think that any defendant who's before a court being sentenced has an expectation that the court's going to explain why it is that they're giving whatever sentence that they're giving, notwithstanding the fact that that's required by the notes in 5K 1.1.

[00:19:42] Speaker 01:
And so one expectation that he would have had is that the court would actually articulate why it is that he's getting the sentence that he's getting beyond, I've read your briefs and agree with the government.

[00:19:56] Speaker 01:
And so this is where in piles the court was able to sort of look at some of the other statements that the court had made prior to imposing sentence where they were interacting with defense counsel about arguments that were being made and making comments about how the sentencing guidelines

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related to Piles specifically.

[00:20:23] Speaker 01:
You know, the court was able to say, you know, there is enough in the record to justify the sentence that was imposed in that case.

[00:20:30] Speaker 01:
Here, it's very different than that.

[00:20:33] Speaker 01:
You have these defendants all being addressed simultaneously, and there aren't any statements made about Mr. Zapata-Espinoza specifically.

[00:20:44] Speaker 01:
Now, what sentence would he hope for?

[00:20:48] Speaker 01:
What's the argument that he made that I think would have made a difference to the court or that I think was important for the court to address?

[00:21:02] Speaker 01:
I don't know.

[00:21:06] Speaker 03:
Did he move for a downward departure

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separate from the government's recommendations?

[00:21:13] Speaker 01:
It was part, they made a different recommendation than the government.

[00:21:18] Speaker 01:
And so my recollection is that he suggested a sentence of 25 years.

[00:21:28] Speaker 01:
And so there was, it wasn't that the parties were even in agreement about how much of a departure he should have gotten or what the ultimate sentence should have been.

[00:21:39] Speaker 01:
He

[00:21:39] Speaker 01:
And again, in my practice, I try not to, at the district court level, I try not to make one argument and say, this is the one that's going to make a difference.

[00:21:54] Speaker 01:
I try to make a number of arguments.

[00:21:56] Speaker 04:
I know, but the brief doesn't tell us anything.

[00:21:59] Speaker 04:
That's the problem.

[00:22:00] Speaker 01:
I understand.

[00:22:00] Speaker 01:
And one of the reasons that I didn't address the specific arguments is that I think that this is one of those cases where we're really left to speculate.

[00:22:09] Speaker 04:
and because of the pre-sentence report there is one correct there is does it explain the nature of the offense the request of the party the government's position why a recommendation is made for a particular sentence

[00:22:36] Speaker 01:
I think that the parties all made their arguments.

[00:22:39] Speaker 01:
And the description of what happened is also included in the pre-sentence report.

[00:22:46] Speaker 01:
So the court had a number of different places that it could rely on in order to.

[00:22:51] Speaker 04:
Well, you were saying in piles they looked at other documents.

[00:22:54] Speaker 04:
I mean, I thought, well, what about the pre-sentence report, for example?

[00:22:58] Speaker 01:
My assumption is that the court reads what the attorneys submit.

[00:23:02] Speaker 04:
Well, that's what the court said on the record.

[00:23:04] Speaker 01:
I think the concerning issue is, it's great they've read everything, but there's four defendants standing in front of you.

[00:23:12] Speaker 01:
And at least Mr. Cipote Espinosa was asking for a reduction, a downward departure.

[00:23:19] Speaker 01:
And one of the requirements in that is that the court shall explain why they're giving that reduction.

[00:23:27] Speaker 01:
And I understand, he got a reduction.

[00:23:30] Speaker 01:
I understand that.

[00:23:31] Speaker 04:
And there was an explanation.

[00:23:34] Speaker 04:
You may not have thought it was adequate, but there was an explanation by the district court.

[00:23:38] Speaker 04:
Why don't we hear from the government?

[00:23:39] Speaker 04:
Let me give you a minute on the bottom.

[00:23:46] Speaker 04:
Thank you.

[00:23:48] Speaker 04:
Good morning.

[00:23:49] Speaker 00:
Good morning and may it please the court, Dan Lenners of the United States.

[00:23:53] Speaker 00:
If I might start with the appeal waiver and then move to the merits of the defendant's argument.

[00:23:58] Speaker 00:
The fact that the district court during the plea colloquy made a accurate yet undetailed description of the plea waiver that was part of the plea agreement neither removes this case from Han Lee which says that

[00:24:17] Speaker 00:
the failure to explain the plea waiver pursuant to Rule 11 doesn't affect a defendant's substantial rights when the totality of the circumstances shows that that appeal waiver was nonetheless knowing and intelligent, voluntary.

[00:24:28] Speaker 04:
So the district court has four defendants and says, I've read all the parties' submissions and I sentence all defendants to X. Same analysis apply?

[00:24:45] Speaker 00:
I don't believe so, Your Honor.

[00:24:47] Speaker 04:
So there is no requirement that there is any individualization?

[00:24:55] Speaker 04:
So a mass?

[00:24:57] Speaker 04:
I mean, you could have 20 defendants.

[00:25:00] Speaker 00:
I don't believe under the circumstances of this case there was the requirement of any individualization.

[00:25:06] Speaker 04:
No, I'm just curious.

[00:25:07] Speaker 04:
It's the government's position.

[00:25:09] Speaker 00:
I think this case is different.

[00:25:11] Speaker 00:
One of the reasons this case is different, Judge Pillard, is that the defendant could not make a motion for downward departure.

[00:25:18] Speaker 00:
The only reason that this and the other defendants were entitled to anything other than a mandatory life sentence is because the government filed a substantial cooperation motion under 5K1.1.

[00:25:30] Speaker 00:
and under that sentencing guidelines provision, the court is supposed to give a substantial weight to the government's recommended sentence because only the government knows the extent of any given defendant's cooperation.

[00:25:44] Speaker 00:
It was that reason, not only that, but the government clearly treated both in its papers and during its sentencing colloquy, all of these defendants

[00:25:56] Speaker 00:
sort of as a package comparing their conduct during this murderous assault, comparing the level of their cooperations and explaining to the court why their recommendations were structured as they were.

[00:26:09] Speaker 00:
And so under those circumstances where the government has explained at length

[00:26:14] Speaker 00:
each defendant's cooperation, each defendant's conduct during this assault, and sort of structure that package, I think when the court says, I agree with the government's recommendation, as I did earlier this morning and as I did the day before, that the same level of individualized assessment is not necessary.

[00:26:35] Speaker 03:
So I appreciate that, and I did see there was some amount of

[00:26:41] Speaker 03:
reticulation in the record about which defendant was getting what kind of sentence and why.

[00:26:46] Speaker 03:
And I'm just trying to imagine what this defendant's concern is, but it seemed to me that the only concern is he doesn't get as low as somebody like Gamaron, who actually tried to open the door, or Cacho, who was one of the people who put the long gun in and actually did some shooting.

[00:27:08] Speaker 03:
So he's maybe one, and I think it's Cacho who had given some truthful and some untruthful so they couldn't call him to testify.

[00:27:17] Speaker 03:
And obviously in this circumstance with these cartels, showing up in court and testifying is a very risky undertaking, even for someone who's gonna be in prison.

[00:27:28] Speaker 03:
So I guess he's kind of wondering like why

[00:27:31] Speaker 03:
You know, and he was a leader and they weren't, so that may be why, but he doesn't get, at the end of the day, some of that explanation.

[00:27:41] Speaker 00:
So I unfortunately don't know the defendants by their nicknames, Your Honor, but the only dispute between this defendant and the government

[00:27:49] Speaker 00:
was how the court weighed otherwise undisputed facts.

[00:27:55] Speaker 00:
The level of his cooperation, which he fully credited the government and said, thank you to the government for fully crediting my cooperation.

[00:28:02] Speaker 00:
His conduct during the assault, which was largely undisputed, I believe, and which he testified to at trial.

[00:28:09] Speaker 00:
So there was no dispute about what he did during this assault, that he was the leader, that he started the whole thing by deciding to pull this vehicle over.

[00:28:18] Speaker 00:
There was no dispute about the level of his cooperation.

[00:28:22] Speaker 00:
The only dispute was whether A plus B equals 25 years or A plus B equals 35 years.

[00:28:28] Speaker 00:
And the court adequately responded to that extremely narrow issue by saying, my instincts are to agree with the victims who ask for a life sentence.

[00:28:39] Speaker 00:
But given that this defendant cooperated, given that his cooperation led to the convictions of other people, I'm inclined to agree with the government's recommendation.

[00:28:48] Speaker 00:
So there was no complaint that his sentence was wrong vis-a-vis the other defendants.

[00:28:54] Speaker 00:
His only disagreement that the court needed to address that sentencing was whether you pick 35 or whether you pick 25.

[00:29:01] Speaker 00:
And the court's explanation, although relatively short, adequately addressed that narrow conflict.

[00:29:06] Speaker 00:
which is why we think, in addition to his appeal being waived, is otherwise merrily.

[00:29:14] Speaker 00:
If there are no further questions, we'd ask that the judgment be affirmed.

[00:29:24] Speaker 04:
Thank you.

[00:29:24] Speaker 04:
Anything further?

[00:29:27] Speaker 01:
No, Your Honor, unless there are any additional questions.

[00:29:30] Speaker 04:
No, thank you.

[00:29:31] Speaker 01:
Thank you, Your Honor.

[00:29:32] Speaker 04:
You were appointed by the court and we do appreciate your assistance.

[00:29:35] Speaker 01:
Thank you, and I do appreciate the court's patience with me this morning.

[00:29:39] Speaker 01:
Thank you.