[00:00:00] Speaker 03: Case number 18-3069, United States of America versus Mark Smith, also known as John Doe, also known as Melvin Smith, appellate. [00:00:08] Speaker 03: Ms. [00:00:08] Speaker 03: Rolland for the appellate, Mr. Verney for the appellate. [00:00:12] Speaker 03: Ms. [00:00:13] Speaker 03: Rolland, before we start, I want to, on behalf of Judge Sreenivasan and myself and the entire court, I want to welcome our newest colleague to the D.C. [00:00:22] Speaker 03: Circuit, Judge Riley. [00:00:23] Speaker 03: Thank you very much. [00:00:24] Speaker 03: Yes. [00:00:24] Speaker 03: Welcome, and we all wish you a long and successful career on this story, Court. [00:00:30] Speaker 03: Welcome. [00:00:30] Speaker 01: Thank you. [00:00:31] Speaker 01: Absolutely. [00:00:33] Speaker 01: May it please the Court, Sandra Rolland on behalf of Mark Smith. [00:00:38] Speaker 01: Turning first to the procedural error, the District Court's duty, as described by Congress in 18 U.S.C. [00:00:45] Speaker 01: 3553 and 3582, is to revisit the sentence and impose the sentence that's sufficient but not greater than necessary. [00:00:55] Speaker 01: In every case, the sentence that's sufficient but not greater than necessary is one number. [00:01:01] Speaker 01: It's not a range or a ballpark number. [00:01:04] Speaker 01: It's not a number that seems reasonable among other reasonable numbers. [00:01:08] Speaker 01: If one month is sufficient, two months is greater than necessary. [00:01:13] Speaker 01: The District Court's finding that Mr. Smith did not warrant what it termed early release because 156 months was a reasonable sentence did not fulfill the court's duty under 3553 and 3582, and it was a procedural error. [00:01:29] Speaker 01: It was the wrong framework. [00:01:31] Speaker 01: The 156-month sentence needed to be more than reasonable. [00:01:35] Speaker 01: It needed to be sufficient, but not greater than necessary. [00:01:39] Speaker 01: We also contend that 156 months was, in fact, greater than was necessary and therefore substantively unreasonable. [00:01:48] Speaker 01: It was not reasonable in light of the guideline changes unless Mr. Smith was deserving of an upper departure, which he wasn't. [00:01:56] Speaker 01: Mr. Smith's role in his conduct was typical, mid-wrong as the government and the court put it. [00:02:02] Speaker 01: and not out of the heartland of drug cases. [00:02:05] Speaker 01: As a mid-rung defendant, a sentence that was not only higher than the mid-rung of the new guidelines but was above the guidelines was substantively unreasonable, and it is not entitled to a presumption of reasonableness by this court. [00:02:20] Speaker 01: On behalf of Mr. Smith, I ask the court to reverse and remand the case to the district court for reconsideration. [00:02:27] Speaker 02: So can I just say one thing? [00:02:31] Speaker 02: Go ahead, please. [00:02:31] Speaker 02: In the Supreme Court's decision in Hughes, it seemed to presuppose that we could have a situation in which the district court would retain discretion to do exactly what the district court did here. [00:02:43] Speaker 01: The district court absolutely has discretion to revisit under 3582 and apply the factors in 3553. [00:02:55] Speaker 01: What it can't do is simply revisit, look at it, and say, well, it was reasonable. [00:03:01] Speaker 01: That's not what 3553 requires. [00:03:05] Speaker 01: 3553 requires a sentence that's sufficient, but not greater than necessary. [00:03:10] Speaker 02: For purposes of substantive unreasonableness, which means that [00:03:14] Speaker 02: For substantive unreasonableness, I take it your argument is the district court just couldn't. [00:03:18] Speaker 01: Our argument is simply that it's 156 months. [00:03:23] Speaker 01: a sentence above the new guideline range was unreasonable in light of the fact that Mr. Smith was a mid-rung defendant, felt absolutely within the heartland of cases. [00:03:36] Speaker 01: He didn't get any points for his role in the offense. [00:03:39] Speaker 01: He wasn't a leader. [00:03:41] Speaker 01: He was a mid-rung defendant and deserved [00:03:45] Speaker 01: a sentence within the guidelines, perhaps in the middle of the guidelines and not a sentence that's above the range. [00:03:54] Speaker 01: We absolutely recognize that the court has a lot of discretion. [00:03:57] Speaker 01: The district court has a lot of discretion in these cases. [00:04:00] Speaker 01: But in this particular case, because the sentence was above the guideline range, it's not entitled to a presumption of reasonableness as it would have been if it had been fallen within the guideline range. [00:04:14] Speaker 03: How do you distinguish this case from US versus Jones, which you cite in your briefing? [00:04:20] Speaker 01: If the court could give me just one minute to look up Jones. [00:04:25] Speaker 03: My note says it's on page XX. [00:04:26] Speaker 03: I obviously didn't write down the number. [00:04:30] Speaker 03: But it's in your brief. [00:04:35] Speaker 01: It's in my brief at page nine, if that's more helpful than XX. [00:04:44] Speaker 01: We agree absolutely with that, and Joan says that the new sentence under 3582 does not need to be proportional to the old sentence. [00:04:59] Speaker 01: So it doesn't need to be five months above the guideline range as it was previously. [00:05:08] Speaker 01: But what is unreasonable in this case, what's substantively unreasonable, is to impose a sentence on a mid-level defendant that's outside the guideline range. [00:05:20] Speaker 01: There is no new information. [00:05:21] Speaker 01: Of course, they couldn't be in the 3582, except for the defendant's conduct while incarcerated. [00:05:28] Speaker 01: So it's very different. [00:05:29] Speaker 01: We're not simply saying he should have gotten 126 months. [00:05:34] Speaker 01: were saying he shouldn't have gotten that this sentence was unreasonable because it was above the guideline range and we would be in a much harder position if it had been somewhere within the guideline range. [00:05:48] Speaker 01: Are you suggesting that any sentence above the guideline range would be substantively unreasonable? [00:05:54] Speaker 01: I'm suggesting that in this case, given his facts, a sentence above the guideline range is substantively unreasonable. [00:06:04] Speaker 01: As I've said many times, he's a mid-level defendant in a case that's well within the heartland of cases. [00:06:10] Speaker 01: There's absolutely nothing extraordinary out of the ordinary about this case. [00:06:14] Speaker 01: I'm not suggesting that the court should announce that all sentences above the guideline range in 3582s are substantively unreasonable, but given the facts of Mr. Smith's case, it is. [00:06:31] Speaker 01: If the court has no further questions, we'll rest on our brief. [00:06:44] Speaker 00: May please the court, Kevin Berner for the United States. [00:06:47] Speaker 00: Your honors, the district court made no procedural or substantive error in deciding not to reduce the appellant's sentence here. [00:06:57] Speaker 00: First, on procedural error, the court, in a very well-reasoned opinion, went through the factors under 18 USC 3553A, which is all that it's required to do. [00:07:10] Speaker 00: It went through those factors, including the nature and circumstances of the offense. [00:07:14] Speaker 00: the need for the sentence to reflect the seriousness of the offense and to provide just punishment, the amended sentencing range, any pertinent policy statement from the Sentencing Commission, and the need to avoid unwarranted sentences disparities. [00:07:29] Speaker 00: The district court either referenced all of those factors explicitly or implicitly and decided not to reduce the sentence. [00:07:38] Speaker 00: Regarding substantive, oh, and I want to mention one other thing on the procedural claim here. [00:07:45] Speaker 00: I think Appellant has spent a lot of some time in his brief talking about the trial judge's remark about whether the sentence was reasonable and placing some emphasis also on the standard of sufficient but not greater than necessary. [00:08:02] Speaker 00: But if you look at the trial judge's [00:08:04] Speaker 00: order, that word reasonable is really just a very brief part of the order. [00:08:11] Speaker 00: It's in a sentence discussing the Palin's criminal history and his conduct. [00:08:19] Speaker 00: But I think when you look at the order as a whole, the trial judge demonstrated that he understood that he needed to weigh all of these factors under 3553A in determining whether any sentence reduction was warranted. [00:08:33] Speaker 00: On the substantive unreasonableness part, the trial judge, when weighing through all these factors, provided a lot of facts for why he felt that appellant personally should not receive any reduction in sentence. [00:08:47] Speaker 00: Within just a few months, he had distributed crack cocaine to an informant on several occasions. [00:08:53] Speaker 00: He had discussed prices for substantial amounts of cocaine and crack cocaine over the phone when he was arrested. [00:09:00] Speaker 00: 125 grams of cocaine was found in his car. [00:09:06] Speaker 00: And I think it's undisputed that he was a middle rung participant in a very large drug conspiracy. [00:09:14] Speaker 00: Also, I think the trial judge correctly recognized that had the appellant not taken the plea offer, which was 11C1C plea, had he not taken that, and had he lost that trial, he would have been exposed to a mandatory minimum of life in prison. [00:09:31] Speaker 00: So considering the fact that even if you take a look at the amended sentencing guideline range, it's 121 to 151 months. [00:09:40] Speaker 00: The sentence is 156 months, five months over the maximum, 151. [00:09:46] Speaker 00: But five months, that trade-off, in lieu of potentially losing your liberty for life, was a very attractive deal for him. [00:09:58] Speaker 00: So it's not surprising [00:10:00] Speaker 00: that he agreed during the proceedings that that was the appropriate sentence. [00:10:07] Speaker 00: And I would just note, because Hughes has been referenced earlier today, that I think Hughes has several parts which are helpful to our position in this case. [00:10:18] Speaker 00: First of all, the court can consider the benefits that a defendant receives by entering into an 11C1C plea, and here the benefits were quite large because [00:10:28] Speaker 00: He no longer had this mandatory minimum of life hanging over his head, and he knew he was probably going to get a 156-month sentence instead, which is what he received. [00:10:39] Speaker 00: And also the fact that Hughes emphasizes, and of course, this is a very deferential standard of review, abuse of discretion. [00:10:47] Speaker 00: Hughes recognizes that the trial judge has the discretion to deny a reduction in the sentence if he makes a finding that he would have imposed the same exact sentence even without the reduction in the guidelines, even before the reduction in the guidelines. [00:11:05] Speaker 00: And Judge Lamberth made that finding here in his memorandum, opinion, and order. [00:11:10] Speaker 00: So Your Honors, to sum up, I would just say that the trial judge recognized he was not on autopilot here. [00:11:18] Speaker 00: He recognized that there was a valid motion, 11C1C plea under Hughes, that the defendant was eligible for a sentence reduction. [00:11:26] Speaker 00: And then he set out, I think, very clearly in his memorandum of opinion order why no reduction was warranted here. [00:11:33] Speaker 00: And for the reasons I've already stated, no reduction was warranted. [00:11:39] Speaker 03: Okay, thank you. [00:11:40] Speaker 03: Thank you. [00:11:41] Speaker 03: Ms. [00:11:41] Speaker 03: Rowland, do you have a rebuttal? [00:11:44] Speaker 01: Yes, sir. [00:11:45] Speaker 01: Just very briefly, in terms of the district court's framework, looking at whether it was a reasonable sentence, the number of words he used, the length of that remark makes no difference. [00:11:56] Speaker 01: The problem is that he was using the wrong framework. [00:12:00] Speaker 01: And there is a lot of talk in the [00:12:06] Speaker 01: here today and in the district court's opinion about the fact that Mr. Smith was facing life in prison. [00:12:13] Speaker 01: He absolutely was not facing life in prison under the sentencing guidelines. [00:12:17] Speaker 01: His guideline [00:12:18] Speaker 01: score was 34 and then subtracted three points for acceptance of responsibility, so it was 31. [00:12:27] Speaker 01: And even at level criminal history category 6, that is not life in prison. [00:12:34] Speaker 01: The government could have filed an 851 notice [00:12:38] Speaker 01: They had the grounds to do so, and they didn't do that. [00:12:42] Speaker 01: That is a discretionary matter. [00:12:44] Speaker 01: They don't do that in every case. [00:12:46] Speaker 01: So perhaps they would have, but they didn't. [00:12:49] Speaker 01: So to say that he was facing life in prison and got quite a bargain by getting 156 months I think is a bit misleading. [00:12:59] Speaker 01: Thank you. [00:13:00] Speaker 03: Thank you. [00:13:01] Speaker 03: Case is submitted.