[00:00:00] Speaker 02: Case number 19-3058 et al, United States of America versus Antoine White, also known as Tone of Balance. [00:00:08] Speaker 02: Mr. Kramer for the balance, Ms. [00:00:10] Speaker 02: Gabriel for the appellee. [00:00:15] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:00:18] Speaker 04: Good morning. [00:00:19] Speaker 04: Since the briefs were filed, the government's 28J letter of October 5, 2020, [00:00:28] Speaker 04: has considerably narrowed the issues before the court. [00:00:32] Speaker 04: As far as I can tell, and obviously I don't speak for the government, but at this point, it appears that the defense and the government agree with the district court that these were covered offenses, that there's an eligibility for sentence reduction. [00:00:49] Speaker 04: It appears that the government agrees with the defense [00:00:53] Speaker 04: We both disagree with the district judge about the district judge's test about availability of relief. [00:01:01] Speaker 04: And the government agrees with us that that's not a proper test under the Fair Sentence, I'm sorry, the First Step Act. [00:01:11] Speaker 04: And so that the only issue I think that's before the court is the district court's indication that in its discretion, it would deny the motion under the [00:01:23] Speaker 04: first step back. [00:01:24] Speaker 04: So I think that's, unless the court has questions about, and I recognize that the briefs, the majority of the briefs are devoted to the issues that now appear to, there appear to be agreement between the parties. [00:01:37] Speaker 04: And unless the court has questions about that, I intend to just focus on the discretionary. [00:01:41] Speaker 03: Yes. [00:01:43] Speaker 03: I don't think we do. [00:01:43] Speaker 03: I think you should go right on to the discussion. [00:01:46] Speaker 00: Gee, I hate to contradict the boss here, but. [00:01:48] Speaker 03: Oh, that's okay. [00:01:50] Speaker 03: You used to be the boss. [00:01:53] Speaker 00: All habits, I guess. [00:01:56] Speaker 00: I do for two reasons. [00:01:57] Speaker 00: One, we have two very good advocates here, and I'd like to understand the first step back a little better. [00:02:02] Speaker 00: But the second point is, what do we do with the fact that two of you agree with something that the district court doesn't agree with if we don't hold that the district court was wrong? [00:02:13] Speaker 00: So if we were to remand it to the district court and not hold the court was wrong, simply that each of you would like to go forward, is that enough? [00:02:21] Speaker 00: Or could the district court? [00:02:22] Speaker 00: So maybe I should start with that question. [00:02:24] Speaker 00: Or could the district court said, well, that's all well and good, but that's not my view of the law? [00:02:29] Speaker 04: No. [00:02:31] Speaker 04: Well, I mean, you could remand it to the district court. [00:02:34] Speaker 04: I think it should be remanded, obviously, on the discretion issue. [00:02:40] Speaker 04: The district court could say the same thing again, which is I don't think it's available. [00:02:44] Speaker 04: But if I exercise discretion, this is what I would do. [00:02:48] Speaker 04: And I think that's our argument that that has to be a fuller. [00:02:51] Speaker 05: I thought, wait, I thought your claim. [00:02:54] Speaker 05: I'm sorry. [00:02:56] Speaker 05: I thought you were advancing the claim that the district court was wrong on the test of availability. [00:03:00] Speaker 04: Yes. [00:03:01] Speaker 05: The fact that the government now agrees with you doesn't [00:03:05] Speaker 05: change your view that you are bringing an appeal in which you are saying the district court was wrong. [00:03:12] Speaker 05: Government counsel now says, well, we don't disagree with that. [00:03:15] Speaker 05: So you would want us to say, I assume, in an opinion, the district court's wrong. [00:03:19] Speaker 05: So when it goes back, the district court has no discretion with respect to that determination anymore if we agree with you. [00:03:26] Speaker 04: Yeah, that's the question I have. [00:03:27] Speaker 04: No, I think that I think that's right. [00:03:29] Speaker 04: And I think it's quite actually. [00:03:30] Speaker 05: Why would you even hesitate over that? [00:03:32] Speaker 05: I'm confused. [00:03:33] Speaker 05: Well, I mean, you could. [00:03:37] Speaker 05: If we agree with you. [00:03:39] Speaker 05: Yes, it seems to me straightforward that we would say in an opinion that here's the issue that was raised by the appellant. [00:03:47] Speaker 05: This court went the other way. [00:03:49] Speaker 05: They're challenging it. [00:03:50] Speaker 05: We agree with the appellant. [00:03:51] Speaker 05: And incidentally, the government agrees to this because wrong and on remand. [00:03:56] Speaker 05: That's off the table. [00:03:58] Speaker 04: No, I agree with that. [00:04:00] Speaker 04: I don't know why I hesitated, only in the sense that [00:04:05] Speaker 04: You could just say, remand it to the district court and say, exercise for more fulsome discussion of the discretion issue. [00:04:13] Speaker 04: But I think you're right, Judge Edwards. [00:04:15] Speaker 04: And I think that the simple answer to it is that the First Step Act has nothing about this availability issue that the district court superimposed on the statute. [00:04:30] Speaker 04: And the government agrees, as I said, that it's only the amounts [00:04:34] Speaker 04: of drugs either found in this case because it went to right found by the jury um in a case of a plea it would be found by the jury or conceded or but in this case because it went to trial was right seated right all right the jury clearly found um only on the uh one count of equals that it was more than five grams and that penalty has been changed obviously [00:05:00] Speaker 00: Okay, so then if we do need to discuss this availability argument, which is the 404B argument, let me just ask you a couple of questions about it. [00:05:12] Speaker 00: Yes. [00:05:12] Speaker 00: So what do you understand the words to mean as if sections two and three of the Fair Sentencing Act were in effect at the time? [00:05:19] Speaker 00: What do you understand? [00:05:19] Speaker 04: Nothing more than that, frankly, just as if they were in effect. [00:05:23] Speaker 04: It doesn't say anything about... Well, what does it mean? [00:05:27] Speaker 00: What does it mean as if they were in effect? [00:05:30] Speaker 04: All I can say is, to me, it means just what it says. [00:05:34] Speaker 04: There's nothing that says that if you decide that the guidelines would be the same, that you can't modify the sentence, impose a reduced sentence, modifies the wrong word, impose a reduced sentence. [00:05:51] Speaker 04: It means just what it says, if they were in effect. [00:05:55] Speaker 04: It doesn't say anything about there has to be [00:05:59] Speaker 04: a lower guideline range, a lower statutory range, that's in 404A. [00:06:07] Speaker 00: But when the judge considers whether they were in effect, as if they were in effect, do you think that that means that... I understood from your brief that you understood the judge may consider the [00:06:24] Speaker 00: judge found amounts in making the determination, including for the statutory range. [00:06:30] Speaker 00: Is that right? [00:06:32] Speaker 05: No. [00:06:33] Speaker 05: No. [00:06:35] Speaker 00: What did you say? [00:06:35] Speaker 00: So perhaps either I'm not understanding the brief or the brief is less clear than it might have been. [00:06:44] Speaker 00: I'm sure it's the former. [00:06:46] Speaker 00: Don't worry. [00:06:48] Speaker 01: I'm sure it's the latter. [00:06:50] Speaker 00: So at page 28 of the brief, I'm not trying to trip you up here, I'm just trying to figure out what you mean here. [00:07:01] Speaker 00: It says, of course, in exercising its discretion, a judge may take stock of several considerations, including the judge-found amount of crack in the conspiracy. [00:07:13] Speaker 04: Yes, that's, I'm sorry, I'm sorry. [00:07:15] Speaker 00: So what do you mean by that? [00:07:17] Speaker 04: That's the stage we're at in this appeal, which is the discretionary stage. [00:07:23] Speaker 04: In deciding whether to actually impose a reduced sentence, the judge can consider that amount. [00:07:29] Speaker 04: That's not an amount the judge can, that's it, it says in exercising its discretion at face time. [00:07:36] Speaker 04: No, I understand. [00:07:37] Speaker 04: Discretionary phase. [00:07:38] Speaker 00: I understand that, so, but if the judge uses the, [00:07:41] Speaker 00: judge found amount to determine it in the discretionary stage and looks at the statutory penalty. [00:07:52] Speaker 00: That's a different question obviously than if the judge uses the jury found amount and looks at the statutory penalty in the discretionary phase, right? [00:08:01] Speaker 00: So if the judge looked at the jury found amount only in the sentencing phase, the judge would see that [00:08:12] Speaker 00: Your defendants have already served more than the statutory penalty, which is 20 years. [00:08:19] Speaker 00: They served 27 years. [00:08:22] Speaker 00: If the judge looked at the jury, the judge found amount, it would find, the judge would find, I think probably the same statutory penalty, a max I'm talking about, same statutory max, right? [00:08:37] Speaker 04: in the judge found amounts. [00:08:39] Speaker 00: Yeah. [00:08:39] Speaker 00: So are you saying that they can use either one in the discretionary? [00:08:45] Speaker 00: Leave aside the argument about availability. [00:08:47] Speaker 00: That's not necessarily what I'm talking about here. [00:08:49] Speaker 00: I'm with you on the question of discretionary. [00:08:52] Speaker 00: And I'm trying to figure out what is a judge supposed to do in the discretionary phase. [00:08:56] Speaker 00: And at some parts of your brief, you say what I just said. [00:09:02] Speaker 00: You say the same thing on page 45. [00:09:05] Speaker 00: or something like it. [00:09:06] Speaker 00: I'm going to just find it so maybe it can help both of us. [00:09:10] Speaker 04: I'm sorry, which page? [00:09:13] Speaker 00: Well, that one was page 28. [00:09:14] Speaker 00: No, no, right. [00:09:16] Speaker 00: The other is page 45. [00:09:17] Speaker 00: And that says, appellants do not seek to reopen factual disputes. [00:09:28] Speaker 00: In fact, they accept the judge-found quantity determinations for purposes of their guidelines calculation. [00:09:36] Speaker 01: Right. [00:09:42] Speaker 00: So are you saying that the judge, so maybe you don't understand my confusion, but I am a little confused. [00:09:54] Speaker 00: At the same time, you say that Apprendi requires that the post-FSA range cannot be based on judge found. [00:10:02] Speaker 01: Sorry. [00:10:03] Speaker 00: So what is it? [00:10:04] Speaker 00: So I'm the judge, and the DC Circuit has sent it back. [00:10:10] Speaker 00: And I know I can have my discretion. [00:10:13] Speaker 00: And the judge asks, well, can or must I use the jury found? [00:10:20] Speaker 00: If I must use the jury found, then I should release these people immediately, not just reduce, because it's above their sentencing statutory max. [00:10:30] Speaker 00: If I look at the judge found one, [00:10:33] Speaker 00: then, and I decide to stay the same, then I don't reduce. [00:10:44] Speaker 04: When you say must reduce, we concede that it's discretionary. [00:10:49] Speaker 04: And the judge, as part of that, the judge can consider the amount and what the guideline range would be, but it's not a disqualifying as judged as the- I understand it's not disqualified. [00:11:05] Speaker 00: I understand that and I understand the government agrees with that. [00:11:07] Speaker 00: Now I'm just trying to figure out what is the judge supposed to do on remand. [00:11:11] Speaker 00: You're saying the judge can look at either judge or jury found, either one? [00:11:17] Speaker 04: Both, I think. [00:11:18] Speaker 04: I mean, one argument is that since these two men were sentenced, there's been the Apprendi decision and the Booker and the guidelines or advisory. [00:11:30] Speaker 04: But we didn't challenge the judge-found amounts. [00:11:35] Speaker 04: But they don't affect. [00:11:37] Speaker 04: They're part of the equation for the judge to exercise their discretion. [00:11:44] Speaker 04: But they're not in any way [00:11:47] Speaker 04: um, binding on anybody. [00:11:50] Speaker 00: I understand, but the judge, if, if the judge says, okay, look, I think I should look at the judge found amounts. [00:11:58] Speaker 00: I looked at the judge found amounts sentences still, uh, within a statutory range and still within the guidelines. [00:12:06] Speaker 00: So I'm going to stop here. [00:12:08] Speaker 00: I don't find any of the other considerations terribly relevant. [00:12:13] Speaker 00: That's one judge could do that. [00:12:14] Speaker 00: Another judge could say, I'm gonna look at the jury found amounts and my God, this is above the statutory limit and above the guidelines. [00:12:25] Speaker 00: So, you know, I'm a statutory guidelines person and I'm gonna follow those and therefore I'm going to give a, you know, I don't know, release immediately or whatever. [00:12:36] Speaker 00: Are both judges acting reasonably within discretion then? [00:12:41] Speaker 04: I think so as long as they take into account all the 35. [00:12:45] Speaker 00: I appreciate the other I'm only just for the moment on quantity. [00:12:48] Speaker 04: Yeah. [00:12:48] Speaker 04: Yes, I believe that's correct. [00:12:50] Speaker 04: They can consider what the jury found they can consider what the judge found. [00:12:56] Speaker 04: But it's not binding on anybody. [00:12:59] Speaker 04: It's not a must. [00:13:00] Speaker 04: They could consider it. [00:13:02] Speaker 04: They don't have to. [00:13:03] Speaker 04: They can consider any factor they want under the 3553A factors. [00:13:10] Speaker 04: So yes, I would say both judges, as long as they did a fulsome consideration of the factors, that would be proper. [00:13:19] Speaker 00: So the as-if part doesn't mean that in the discretionary [00:13:26] Speaker 00: decision-making, the judge is supposed to think about as if Apprendi applied or as if Apprendi didn't apply at the time. [00:13:38] Speaker 00: That is, it doesn't have to, it's within the judge's discretion. [00:13:44] Speaker 04: Right. [00:13:44] Speaker 04: I think one factor obviously is that since these two men were sentenced, that the guidelines have become advisory only. [00:13:54] Speaker 04: The judge should consider that, it seems to me. [00:13:58] Speaker 04: Must they consider it? [00:13:59] Speaker 04: I'm not [00:14:00] Speaker 04: I don't think I would go that far, but it's certainly a factor that they should consider and was raised before the district court here. [00:14:09] Speaker 00: All right. [00:14:10] Speaker 00: I'm sorry to have taken you away from your discretionary factors. [00:14:15] Speaker 04: I will just say that for these two young men, I think their tragic childhood, Mr. White was born [00:14:28] Speaker 04: was 15 years old. [00:14:29] Speaker 04: The facts are set out in the briefs. [00:14:31] Speaker 04: I'm just going to highlight a few of them. [00:14:33] Speaker 04: But his mother was a drug addict in jail. [00:14:36] Speaker 04: His father was in jail. [00:14:39] Speaker 04: For Mr. Hicks, his parents drove away when he was five years old, and he never saw them again and never knew what happened to them. [00:14:45] Speaker 04: They were raised in a neighborhood which at the time was rife with drug dealing. [00:14:52] Speaker 04: At the time they were sentenced, they were 20 and 23 years old. [00:14:56] Speaker 04: They have spent [00:14:57] Speaker 04: far more than half their lives in jail. [00:14:59] Speaker 04: They've spent 27 years in jail. [00:15:03] Speaker 04: The letters that were sent in their support at the appendix for Mr. White 388 to 418 and for Mr. Hicks 619 to 636 are incredible, the way they have mentored, the way they've rehabilitated themselves. [00:15:18] Speaker 05: Is your principal argument, I'm sorry to interrupt, is your principal argument, because I think we understand what you're asserting, [00:15:25] Speaker 05: Might be mitigating factors is your argument that the district courts simply did not account for any of them. [00:15:31] Speaker 04: Yet is the discretionary discussion in the district courts of 61 page opinion was about a page and a half or two pages at the very end of the opinion. [00:15:42] Speaker 04: which all it did was recite the facts of the offense and said nothing else, said nothing about their ages. [00:15:51] Speaker 04: And of course, the Supreme Court, they started in this when they were juveniles, and the Supreme Court has recognized recently how the young mind is unformed. [00:16:01] Speaker 05: So your principal claim as a court could consider and did not. [00:16:06] Speaker 05: uh did not reasonably consider the mitigating factors and let me ask you with respect to one because yes i think the two sides are going past each other on the obstruction uh the government is pointing to something that i don't think you're claiming i think you're claiming that the district court in considering that obstruction suggested that hicks [00:16:31] Speaker 05: himself was involved in the murder as opposed to what the transcript says. [00:16:37] Speaker 05: That is, he clearly was trying to affect that proceeding, but he himself was not involved in the murder. [00:16:43] Speaker 05: And so you're both talking about entirely different things. [00:16:46] Speaker 05: But in any event, the question I have just out of curiosity to satisfy myself, the Supreme Court now seems, I think, to make it clear [00:16:57] Speaker 05: You're claiming clearly erroneous. [00:17:00] Speaker 05: The government's claiming plain error with respect to something you're not claiming. [00:17:05] Speaker 05: You're claiming clear error on the obstruction with respect to what the district court said. [00:17:11] Speaker 05: And I'm assuming you're assuming that it was preserved. [00:17:17] Speaker 05: that is, that it was raised with the district court and responded to by, I just look back at the transcript, but I want to make sure I understand both sides. [00:17:28] Speaker 05: The government's talking about something you're not talking about, so I'm not talking about that. [00:17:32] Speaker 05: But with respect to what you are arguing, I think it was, and is that where you think the preservation requirement is met? [00:17:39] Speaker 05: Because Supreme Court now seems to say even with factual [00:17:43] Speaker 05: alleged factual errors and you're saying this is a factual error on the part of the district court. [00:17:48] Speaker 05: Assume something about his participation in murder that was not correct and that you're arguing that that influenced the district court, right? [00:17:59] Speaker 04: So I'm a little, the district court now said, the public opinion said he was involved in a murder. [00:18:06] Speaker 04: Yes. [00:18:06] Speaker 04: But the original sentencing judge did not say... Did not. [00:18:10] Speaker 04: I understand. [00:18:11] Speaker 04: But there's no... [00:18:14] Speaker 04: There was no hearing on this motion. [00:18:16] Speaker 04: It was all done on the papers. [00:18:18] Speaker 05: No, no, I understand. [00:18:19] Speaker 05: But you're claiming it was clear error. [00:18:21] Speaker 05: Yes. [00:18:21] Speaker 05: OK. [00:18:22] Speaker 05: By reference to what? [00:18:23] Speaker 05: There's a transcript colloquy. [00:18:25] Speaker 05: Is that what you're where it was raised with the district court judge and the district court judge? [00:18:30] Speaker 05: So district court judge knew you were not raising the claim that the government thinks you were raising, which they say falls within plain error land. [00:18:39] Speaker 05: You were saying the district court [00:18:41] Speaker 05: to the district court. [00:18:42] Speaker 05: He wasn't involved in the [00:18:45] Speaker 05: This is not about him and murder. [00:18:46] Speaker 05: It's about him and trying to influence that proceeding, right? [00:18:49] Speaker 05: Yes. [00:18:50] Speaker 05: All right. [00:18:50] Speaker 05: You're saying that you're raising that with the district court, preserved the question, and the district court then got it wrong in its assumption. [00:18:58] Speaker 04: Well, yes. [00:19:00] Speaker 04: And then the district court, in its decision, said that Mr. Hicks was obstructing because of his involvement. [00:19:07] Speaker 05: And that was the end of the... There was no... I'm only asking about the preservation. [00:19:11] Speaker 05: I understand what you're claiming is the error. [00:19:13] Speaker 05: because I've been a little bit confused. [00:19:15] Speaker 05: Judge Silderman and I a long time ago said that the clearly erroneous rule from the civil side controls and no preservation is required. [00:19:25] Speaker 05: Supreme Court in Davis now seems to put that completely to rest. [00:19:29] Speaker 05: There is a preservation requirement with respect to alleged factual errors. [00:19:35] Speaker 05: i just want to make sure because the government's not joining you in this discussion you're claiming it's a clearly erroneous test and it was clearly erroneous as if to say you did preserve it yes and you're claiming you raise it with the district court the district court then went on and made a determination that was wrong and that's all you have to do yes okay yes oh could i could i follow up on that i'm just [00:20:03] Speaker 00: I think the district court relies on a fact that is not true. [00:20:09] Speaker 00: It has to be remanded. [00:20:10] Speaker 00: So I care less about this standard of review question maybe than Judge Edwards does at this moment. [00:20:16] Speaker 00: But I'm not sure about the answer to his question. [00:20:19] Speaker 00: So you raised in your sentencing memorandum the points about rehabilitation, childhood, et cetera, correct? [00:20:29] Speaker 00: Yes. [00:20:29] Speaker 00: Then the district court [00:20:34] Speaker 00: said erroneously in your view, in the opinion, because there was no hearing, no elocution, nothing, said that your client Hicks, that the obstruction involved his participation in the murder, right? [00:20:51] Speaker 04: Right. [00:20:52] Speaker 00: I think his in, yes. [00:20:54] Speaker 00: No, not just his involvement. [00:20:55] Speaker 00: Participation was the word used, yes. [00:20:58] Speaker 00: Something like that. [00:21:02] Speaker 00: then you did not have an opportunity to respond after that is there was no opportunity for you to correct the record by saying unless you filed a motion to reconsider or something right right i think we pointed it out in our papers actually that papers at the before he before the judge's ruling yes in the reply brief [00:21:23] Speaker 05: I think it was in your reply brief to the district court. [00:21:29] Speaker 00: Yes, yes. [00:21:32] Speaker 00: This is in response to the government misunderstanding the facts, is that what you're saying? [00:21:36] Speaker 04: In the government's opposition to the First Step Act motion. [00:21:40] Speaker 04: Yes. [00:21:41] Speaker 04: then we, they argued that it was about his involvement. [00:21:45] Speaker 00: I see. [00:21:45] Speaker 00: Okay. [00:21:46] Speaker 04: Right. [00:21:46] Speaker 00: It was not. [00:21:47] Speaker 00: Okay. [00:21:47] Speaker 00: So then you, you joined that issue and disagreed in your reply papers with respect to the sentencing. [00:21:54] Speaker 00: Okay. [00:21:55] Speaker 00: Great. [00:21:55] Speaker 00: All right. [00:21:56] Speaker 00: I understand. [00:21:57] Speaker 04: So I'll just, I know, um, I just want to say that there was both the, their age at the time, their circumstances, um, the incredible letters about their rehabilitation. [00:22:09] Speaker 04: their mentoring of people in prison, their support from their families and friends, job offers if they were released from prison. [00:22:19] Speaker 04: For whatever reason, I mean, there is no indication the district judge considered any of that. [00:22:24] Speaker 00: Mr. Kramer, let me ask you one other question. [00:22:27] Speaker 00: What do you understand the district court did in its alternative holding? [00:22:34] Speaker 00: Did it use judge-made [00:22:38] Speaker 00: Findings, jury made findings of quantity, neither one, both. [00:22:48] Speaker 00: Given what the judge had previously said, did the judge understand what you believe to be the law? [00:22:54] Speaker 00: I think the government also now believes that the judge could have used the jury found quantities. [00:23:07] Speaker 04: the district court right said no, it was all the judge found quantities. [00:23:13] Speaker 00: So when they said in the alternative, when the district court says in the alternative, which I take it to be some kind of even if argument, even if what? [00:23:22] Speaker 00: That is when the district court ultimately applies discretion, I don't see any indication one way or the other about whether that included [00:23:36] Speaker 00: an acknowledgment of being able to use jury-found findings. [00:23:42] Speaker 04: Well, I think the judge rejected any idea about the jury-found findings at the availability stage. [00:23:53] Speaker 00: Yes, but then when the judge moved on to, OK, I'm going to give an alternative holding here, essentially, [00:24:01] Speaker 04: Well, the district court had said Elaine and Apprendi don't apply this proceeding. [00:24:07] Speaker 04: So clearly, the judge was using the judge-made facts, found facts. [00:24:14] Speaker 00: So is part of your argument for a remand not only the argument that you were making a moment ago, but also that the district court didn't understand that it could have relied on the jury found [00:24:32] Speaker 00: quantity for purposes of sentencing range and guidelines? [00:24:35] Speaker 04: Absolutely. [00:24:36] Speaker 04: I mean, she had sort of pretermitted that fact by finding that at the availability stage so that it was essentially irrelevant at the discretionary stage. [00:24:48] Speaker 04: So yes, absolutely, that's an argument that one of the things that I said earlier, that it changed now to the advisory guidelines and that jury [00:25:00] Speaker 04: findings set the statutory range, would set the statutory range now. [00:25:07] Speaker 03: So that was- But she didn't, she didn't, Mr. Cramer, she didn't say that. [00:25:13] Speaker 03: You're assuming that because she took it off the table at the availability stage that when she said [00:25:21] Speaker 03: in the alternative, I would do X, that she must have assumed that she couldn't rely just on jury quantity, right? [00:25:36] Speaker 04: She didn't say one way or the other. [00:25:37] Speaker 04: You're absolutely right. [00:25:38] Speaker 03: Yeah, okay. [00:25:40] Speaker 03: But that's why you think it's been remanded on this issue, because we don't know the answer to that question, correct? [00:25:47] Speaker 04: Yes, yes, I think that's the point of the whole remand. [00:25:52] Speaker 04: All of these, that was one issue we argued that she should consider that. [00:25:59] Speaker 04: Okay. [00:26:01] Speaker 04: whole sentencing structure had changed along with all these mitigating facts. [00:26:04] Speaker 04: And none of them are mentioned in the discretionary. [00:26:07] Speaker 03: I think Judge Garland or Judge Edwards, do either of you have any more questions? [00:26:11] Speaker 05: No. [00:26:11] Speaker 05: At this point? [00:26:12] Speaker 00: No. [00:26:12] Speaker 03: No. [00:26:13] Speaker 03: Thank you. [00:26:14] Speaker 03: We'll hear from the government. [00:26:15] Speaker 03: And I'll give you a couple of minutes for rebuttal. [00:26:17] Speaker 03: Thank you, Your Honor. [00:26:19] Speaker 02: OK. [00:26:20] Speaker 02: Good morning. [00:26:20] Speaker 02: The panel is now muted. [00:26:23] Speaker 02: Can you hear me now? [00:26:25] Speaker 02: OK, good morning. [00:26:26] Speaker 00: You sound like a commercial. [00:26:29] Speaker 02: May I please the court? [00:26:30] Speaker 02: Elizabeth Gabriel on behalf of the United States. [00:26:33] Speaker 02: I do think, as Mr. Kramer pointed out, that we are in agreement on a lot of issues in this appeal and that the court need not decide some of the more difficult Section 404 issues because it can uphold the district court's judgment on the discretionary ruling. [00:26:53] Speaker 02: I'm happy to clear up what the government's position is, if there is confusion on that. [00:26:58] Speaker 02: and to discuss further what we think the mechanics of a Section 404 proceeding should be if the court would like me to address that. [00:27:07] Speaker 02: Otherwise, I'll just talk about the discretionary ruling. [00:27:10] Speaker 00: I think we're back in the same posture that Mr. Kramer began and that we wouldn't let him stick to. [00:27:16] Speaker 00: So I'm gonna have to ask you to do the same. [00:27:19] Speaker 00: Sure. [00:27:21] Speaker 00: Tell us exactly what is the government's position now. [00:27:24] Speaker 02: The government's position now is that because appellants offenses were violations of Section 841 B1A3 and B1B3 that those offenses are covered offenses for purposes of Section 404 and that they were eligible for consideration for a sentence reduction. [00:27:46] Speaker 02: Now, we agree with appellant that the district court should not have considered the judge found quantities in determining what the statutory range would have been if sections two and three of the Fair Sentencing Act were in effect in terms of the 404B analysis. [00:28:07] Speaker 02: So at that [00:28:09] Speaker 02: At that phase, we think that the judge should only look at the jury found or admit or admitted quantities. [00:28:18] Speaker 02: But we agree with appellant that when it comes to deciding whether to impose a reduced sentence in considering all of the 3553 factors. [00:28:28] Speaker 02: the court can and should consider the totality of the conduct, including all of the total amount of drugs, whether found by the jury or not. [00:28:40] Speaker 02: And so at that point, the total quantity would come into consideration. [00:28:44] Speaker 00: So this statement in your letter, I'm just gonna try to pull it up here for one second. [00:28:59] Speaker 00: which says the position of the Department of Justice is that Section 404B contemplates determination of the statutory penalty range based on the quantity of crack cocaine reflected in the jury verdict or admitted by the defendant at a guilty plea. [00:29:14] Speaker 00: You mean that only with respect to this argument about availability and not with respect to the way in which the judge acts in the judge's discretion? [00:29:26] Speaker 02: Exactly. [00:29:29] Speaker 02: Once a defendant is deemed eligible because he has committed a covered offense, the district court has to figure out how sections two and three of the Fair Sentencing Act would have affected his sentence. [00:29:41] Speaker 02: In other words, what the statutory range would have been had the Fair Sentencing Act been in effect. [00:29:48] Speaker 02: In reaching that determination, that question, the court looks not at judge found quantities, but [00:29:57] Speaker 02: only at jury found or admitted quantities. [00:30:01] Speaker 02: So we think that the court, so the judge found quantity should not be relied upon in determining the applicable statutory range. [00:30:11] Speaker 02: But then once that is set, the court has to decide in its discretion whether a reduction is warranted. [00:30:19] Speaker 00: Well, I have the same confusion I'm afraid I had with Mr. Kramer. [00:30:24] Speaker 00: So if you have to use the jury found quantities in determining the sentencing range, when you go to discretion, we're above the jury found, we're above the sentencing range now under the jury found [00:30:48] Speaker 00: quantities. [00:30:50] Speaker 00: So what is the district court supposed to do at that point? [00:30:54] Speaker 00: That would seem like the district court, yes, has discretion, but should realize that the person has served longer than the statutory range. [00:31:05] Speaker 00: And in which case, maybe it would be an abuse of discretion not to release the person. [00:31:12] Speaker 00: Why is that wrong? [00:31:14] Speaker 02: Well, I think simply because the [00:31:17] Speaker 02: the total quantity would elevate the guidelines range, for example, above the new statutory range, doesn't mean that a court abuses its discretion if it decides not to grant the reduction. [00:31:33] Speaker 02: Again, at that, once the court determines- Wait, when you say reduction, reduction from what? [00:31:39] Speaker 05: Because the statutory range is below the guideline range. [00:31:44] Speaker 02: Right, a reduction from the sentence that was originally imposed. [00:31:49] Speaker 02: So because ultimately the court has to consider the totality of the circumstances, all of the factors under 3553, the court can weigh those factors differently. [00:32:03] Speaker 02: It may decide that, well, the total quantity of drugs doesn't outweigh other considerations. [00:32:11] Speaker 02: Or as in this case, the court concluded that [00:32:14] Speaker 02: the nature and circumstances of the offense do outweigh other considerations. [00:32:19] Speaker 02: And so in the court's discretion, a reduction wouldn't be warranted. [00:32:26] Speaker 05: So I mean, to answer Judge Garland, you're essentially hypothesizing the district court judge looks at a case and said, these folks under the statutory range should be released. [00:32:36] Speaker 05: But I now am going to exercise discretion to increase what appears to be the statutory range [00:32:44] Speaker 05: and the reason I'm doing it is, is that what you're saying? [00:32:48] Speaker 05: In other words, he's... So it's not a matter of whether it's being reduced. [00:32:53] Speaker 05: What you're positing is the judge wants to exercise discretion to reach this result to see whether the sentence should be increased above the statutory range. [00:33:05] Speaker 02: Well, we wouldn't look at it that way. [00:33:06] Speaker 05: Yeah, but I mean, as a... [00:33:08] Speaker 05: As a real life matter that's what you this really is a little bit more complexing than I realized that's essentially what you're saying if we look at it as of assuming the statute was in place. [00:33:20] Speaker 05: And you're agreeing that statutory rate, you have to take what the jury found statutory range now is exceeded. [00:33:27] Speaker 05: they've done their time. [00:33:28] Speaker 05: So the question before the district court now is, do I enhance? [00:33:32] Speaker 05: And if so, why? [00:33:33] Speaker 05: And the other side's arguing, not only don't we think you should enhance, we think there were reasons to go lower. [00:33:40] Speaker 05: So how are we resolving this mismatch? [00:33:45] Speaker 02: Well, I think that the critical factor here is that under Section 404, any reduction is [00:33:55] Speaker 02: is discretionary. [00:33:57] Speaker 02: Defendants are not entitled to reductions. [00:33:59] Speaker 05: I really am sorry to interrupt, but I gotta make sure I'm following. [00:34:02] Speaker 05: When you say any reduction, remember, I'm having trouble with the word reduction now. [00:34:06] Speaker 00: Oh, can I, let me see if I can help for a minute. [00:34:09] Speaker 00: I understand you, Gabriel, to be referring to 404C, which says, nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section. [00:34:22] Speaker 00: Yes, so the reduce you're talking about is to reduce from the original from the original. [00:34:27] Speaker 02: Yes. [00:34:27] Speaker 02: Okay, I'm sorry if that was unclear. [00:34:29] Speaker 05: Okay, no, I want to make sure I want to remember to see but I want to make sure that's what you were talking about. [00:34:34] Speaker 05: I'm sorry for interrupting. [00:34:36] Speaker 02: Yeah, and the way I conceptually think about this is sort of in a two step process. [00:34:42] Speaker 02: But it ultimately is a discretionary decision and because to reduce from the original from the original exactly Because defendants are not entitled to reductions under the fair of the first step act The the court has considerable discretion to consider the nature and circumstances of their offense and and does the court have the [00:35:06] Speaker 00: So as I understood Mr. Kramer's position, the judge has discretion to either look at judge found quantities or jury found quantities or both. [00:35:18] Speaker 00: You agree with that as well? [00:35:20] Speaker 02: Once the statutory range is determined, yes. [00:35:23] Speaker 02: I think that's correct. [00:35:25] Speaker 02: I think that's correct. [00:35:26] Speaker 02: We would, of course, the government would argue that the judge should look at the full range of conduct. [00:35:32] Speaker 00: Right. [00:35:32] Speaker 00: But do we know whether the district court in this case [00:35:39] Speaker 00: knew that it had that ability. [00:35:42] Speaker 00: Because given the shifting views of the, I'm not blaming the government about this, but given the changing views and the judge's sort of first two steps of the analysis, this is really the question I put to Mr. Kramer before. [00:35:58] Speaker 00: Do we need to remand at least, leaving aside Mr. Kramer's other arguments, which you'll get a chance to respond to in a second. [00:36:06] Speaker 00: But sorry, Mr. Kramer, but it's really good on Zoom. [00:36:09] Speaker 00: I can see your facial expressions perfectly. [00:36:13] Speaker 00: And I think as Judge Tatel put it, it's pretty hard to know what the district court thought, because at that point of the district court's opinion, it's only about the exercise of discretion. [00:36:27] Speaker 00: There's no discussion of quantity. [00:36:30] Speaker 02: Right. [00:36:33] Speaker 02: The court's opinion is very detailed, obviously, and very lengthy and well-reasoned. [00:36:39] Speaker 02: And the court starts out. [00:36:41] Speaker 03: But Ms. [00:36:42] Speaker 03: Gabriel, not on this issue. [00:36:44] Speaker 02: Well, I do want to just explain why I think a remand isn't necessary. [00:36:50] Speaker 02: The court starts out her written decision by discussing the views of appellants and recognizes that appellants consider [00:36:59] Speaker 02: their new statutory range to be zero to 20. [00:37:04] Speaker 02: And that's how the court sort of frames the discussion. [00:37:07] Speaker 02: Now, Chief Judge Howell goes on to explain why she disagrees with appellant's view. [00:37:13] Speaker 02: But then when she reaches the, I'm sorry, go ahead. [00:37:16] Speaker 05: Take this into account in answer to the question my two colleagues raised. [00:37:20] Speaker 05: This court judge references the quantity in the discretionary portion of the opinion. [00:37:27] Speaker 05: she's referencing only the judge found quantity, only. [00:37:31] Speaker 05: So my assumption was she is not assuming that the jury found is in play at all. [00:37:38] Speaker 05: There's nothing to indicate that she either bought it or realized it at all. [00:37:44] Speaker 05: The only thing she references in the discretionary part is the judge found quantities, right? [00:37:51] Speaker 02: That's correct. [00:37:52] Speaker 02: But I do want to explain why I think she [00:37:56] Speaker 02: why I think she considered the other, the appellant's position, because she then, once she goes through what she thinks Section 404 means and how it should be applied, she then says, well, even if I'm wrong, essentially, even if appellants are entitled to relief here, even if relief is available, implicit in that assumption is that [00:38:20] Speaker 02: you know, even if I'm wrong about Apprendi and Elaine, that I still would not grant a reduction. [00:38:26] Speaker 05: So I think that you know what I read her to be saying was on that point, the even if I thought she was saying doesn't matter because they're not going to do any better. [00:38:38] Speaker 05: And they're not going to do any better because she's assuming the judge made quantities control. [00:38:44] Speaker 05: I thought the thrust of her opinion, you know, what's what waste time and discretion, they're not going to do any better. [00:38:50] Speaker 05: Because when I look at the judge made quantities, they're in the same place. [00:38:53] Speaker 05: That's the way I read her opinion. [00:38:55] Speaker 05: I did not see anything to suggest that she understood they would be better off if she used the jury determination. [00:39:03] Speaker 05: And she was rejecting that too. [00:39:05] Speaker 02: Well, the way that I understood it, Your Honor, was that she in that, you know, her even if, even assuming language is a reference to, even if I'm, even assuming that I was wrong in how to calculate the statutory range, I still, and in other words, even if appellants are right, that in fact they are entitled to consideration for a zero to 20 sentence, I still considering the 3553A factors [00:39:35] Speaker 02: would not grant a reduction. [00:39:36] Speaker 02: So yes, she refers to the judge found quantity in that section, but only as part of her 3553A analysis. [00:39:43] Speaker 05: But you agree that the reading that I'm suggesting is as plausible as your reading of the district court, right? [00:39:51] Speaker 05: Because she's only referring to the judge made. [00:39:54] Speaker 05: And the worst or best that we come away with is we're really not sure. [00:39:59] Speaker 02: Well, I agree with you that she only refers to the judge found quantity. [00:40:03] Speaker 02: But I don't think that it means that she misunderstood her discretion at that point. [00:40:09] Speaker 05: No, no, no. [00:40:10] Speaker 05: We don't even have to go that far. [00:40:11] Speaker 05: If the appellate court really is not sure what the district court judge, I don't have to go further than that. [00:40:16] Speaker 05: If I can honestly say the view you're propounding, I get it. [00:40:20] Speaker 05: But the view that's in my head, I get to. [00:40:23] Speaker 05: And I don't know which way to come out. [00:40:25] Speaker 05: If I'm confused, where does it go? [00:40:26] Speaker 05: It goes back. [00:40:27] Speaker 05: It goes back. [00:40:28] Speaker 02: I understand your honor's point. [00:40:32] Speaker 02: And again, the government's position is that we don't think that there's a lack of clarity in the decision. [00:40:40] Speaker 02: But I do understand the point you're making. [00:40:45] Speaker 02: I would like to comment on the obstruction issue, if the court would permit me. [00:40:52] Speaker 03: Before you do that, Ms. [00:40:55] Speaker 03: Gabriel, let me just ask you. [00:40:56] Speaker 03: My internet was breaking up when you were responding to Judge Edward's question about, where he said, look, if I can't tell what she did, it has to go back. [00:41:11] Speaker 03: I heard you say, I understand, but did you go further and say, did you say what you think about that? [00:41:18] Speaker 03: Why isn't he right about that? [00:41:20] Speaker 02: I don't, the government doesn't believe that there's a lack of clarity in the court's opinion. [00:41:26] Speaker 03: Correct, I know that, but if the court thinks there's a lack of clarity, isn't Judge Edwards right about that? [00:41:33] Speaker 02: I suppose if the court thinks that the district court could not have properly exercised its discretion because it didn't understand [00:41:47] Speaker 02: the mechanics of section 404, a resentencing or reduction of sentence, then yes, the court would, a remand would be appropriate to set the record straight on that. [00:42:00] Speaker 03: I just wanna be really clear about that. [00:42:03] Speaker 03: We don't have to conclude that she misunderstood. [00:42:06] Speaker 03: All we have to conclude, I hear you agreeing with Judge Edwards, is that we can't tell one way or the other. [00:42:13] Speaker 03: I understand your position is, [00:42:15] Speaker 03: that it is clear, but, you know, you're a good lawyer, you're arguing your case. [00:42:19] Speaker 03: But if we think that that's, if we read it and think there is uncertainty, then you agree it does have to go back. [00:42:28] Speaker 03: And that to do that, we don't have to find that the district court misunderstood this, right? [00:42:33] Speaker 03: It's just uncertain. [00:42:34] Speaker 02: Right. [00:42:35] Speaker 02: I think that's correct. [00:42:36] Speaker 02: If there is uncertainty, the remand would be appropriate. [00:42:39] Speaker 03: Miss, thank you very much. [00:42:40] Speaker 03: That's very helpful. [00:42:41] Speaker 03: Why don't you go on to the other issues now? [00:42:43] Speaker 02: OK, just quickly on the obstruction issue. [00:42:47] Speaker 02: I did not read Appellant's reply brief as addressing whether this issue of whether the grand jury was investigating Mr. Hicks for murder. [00:43:04] Speaker 02: The reply brief as I read it sets, it makes clear what murder was at issue. [00:43:13] Speaker 02: But the PSR indicated that the grand jury, that the witness who Mr. Hicks bribed was investigating White and Hicks for a murder. [00:43:27] Speaker 02: And so I think the district court was entitled to rely on that representation. [00:43:31] Speaker 02: And I don't think that it was preserved in this Section 404 proceeding. [00:43:37] Speaker 02: Once the district court ruled, I think it was incumbent upon appellants [00:43:41] Speaker 02: to raise an objection, either through a motion to reconsider, a motion to correct, in some form or fashion, appellants- You haven't raised that. [00:43:52] Speaker 05: Well, we argue that plain error applies because- No, plain error applies with respect to something they're not asserting. [00:44:00] Speaker 05: And they- And maybe I misunderstand- They're not asserting what you're claiming. [00:44:06] Speaker 05: They are claiming that the district court misunderstood in characterizing the obstruction charge, misunderstood in the sense that district court assumed that this was about a murder that Hicks was involved in, not a murder investigation or that he did something bad in connection with a murder investigation. [00:44:29] Speaker 05: It was as if to suggest that Hicks himself [00:44:35] Speaker 05: Was the subject and they're saying that's not correct and the district court shouldn't have assumed that and that would have affected the district courts thinking if they she really assumed that that's what was going on. [00:44:45] Speaker 02: Right, but I think that that that claimed factual error, which is underlying the district courts decision. [00:44:53] Speaker 02: is a claim that should have been brought up. [00:44:57] Speaker 05: Oh, I thought in the transcript, and I mean, I will certainly go back, but just so you understand what I'm assuming in that colloquy with the district court, I thought that the Wait, I'm sorry, Judge, Judge, I don't have a transcript. [00:45:09] Speaker 00: What colloquy? [00:45:10] Speaker 00: I can't find the pig. [00:45:11] Speaker 00: I don't think there was a, there was no transcript in the 404. [00:45:16] Speaker 05: I'll have to look for the citation and I'll tell you what I'm talking about, okay? [00:45:19] Speaker ?: Okay. [00:45:20] Speaker 00: Either counsel, there was no oral discussion. [00:45:24] Speaker 00: There was before Judge Green, but not in this case. [00:45:29] Speaker 02: Right. [00:45:29] Speaker 02: And I know that at the sentencing hearing, Mr. Hicks's counsel made a general statement that he wasn't involved in any murders. [00:45:43] Speaker 02: I don't think that that preserves [00:45:45] Speaker 02: a claim in this section 404 proceeding, however. [00:45:50] Speaker 00: What about the district court's opinion in the 1993 opinion in which the court says, this is in trying to discuss the unavailability problem with respect to hearsay, that Esther Hicks, you can't use the hearsay because he wasn't involved in causing the unavailability, namely the murder. [00:46:14] Speaker 00: Isn't that a finding by the district court? [00:46:18] Speaker 00: That is by Judge Green, opposite to the decision in this case, which says that they were investigating him for murder. [00:46:29] Speaker 02: Right. [00:46:29] Speaker 02: Right. [00:46:29] Speaker 02: I think that the distinction is that that statement is a general statement about his actual involvement in the murder. [00:46:40] Speaker 02: But what's at issue here is whether the district court aired [00:46:43] Speaker 02: in finding that the grand jury was investigating him for his involvement in murder. [00:46:50] Speaker 05: And we don't- I think that's where you're misjoined. [00:46:52] Speaker 05: I didn't read them to me making that argument, but in any event, okay, I'm trying to find the pages. [00:46:59] Speaker 02: Go ahead. [00:46:59] Speaker 02: Okay. [00:47:00] Speaker 02: As I understand it, they object to the district court's ruling in this case because the district court's finding as to obstruction, his obstructive behavior, [00:47:12] Speaker 02: was based on the assumption that he had bribed or on the finding that he had bribed a witness who went to the grand jury. [00:47:20] Speaker 02: And this is what the district court's written opinion states, withholding information from the grand jury that was investigating him for murder. [00:47:28] Speaker 02: So the critical question here is, as I understand appellant Hicks to frame it, is whether the grand jury was investigating him for murder. [00:47:38] Speaker 02: And I don't think that anything in the proceedings in 1993 or in the Section 404 proceedings preserves their objection to that factual finding here. [00:47:52] Speaker 02: Again, this distinction I'd like to make is we're looking at what was the subject of the grand jury investigation. [00:47:59] Speaker 02: In any event, we don't think it matters because ultimately the district court [00:48:03] Speaker 02: was relying on his obstructive conduct. [00:48:07] Speaker 02: And Appellant Hicks doesn't dispute that he in fact bribed a witness who was going to the grand jury. [00:48:15] Speaker 02: And that's really what was the critical conduct that the district court in this proceeding relied on in finding that a reduction in sentence was not warranted. [00:48:28] Speaker 03: Ms. [00:48:29] Speaker 03: Gabriel, if we think, going back to the first question, if we think that [00:48:33] Speaker 03: There is uncertainty about the question of whether that in the district judge. [00:48:38] Speaker 03: If we think there's uncertainty about what the just whether the district judge thought she could rely on We had to rely just on jury found. [00:48:48] Speaker 03: Do we have to address this issue for Hicks doesn't just go back on that too for him. [00:48:54] Speaker 02: I think that's true. [00:48:55] Speaker 02: Yes. [00:48:57] Speaker 03: Okay. [00:49:00] Speaker 02: Okay, if the court has no further questions. [00:49:02] Speaker 00: The only thing I just want to make sure, just as I did with Mr. Kramer, that I understand the government's position in some, and that is that the violations here are covered, that the 404B discretionary reduction is available, and in that discretionary [00:49:29] Speaker 00: decision-making, the judge can use either judge-found or jury-found amounts. [00:49:38] Speaker 00: Although, of course, you would argue that she should use the jury-found, but in terms of permissibility, it would be permissible to use either one. [00:49:48] Speaker 00: Is that right? [00:49:49] Speaker 02: Yes. [00:49:50] Speaker 02: Just to clarify, that's after the statutory sentencing range is determined, under the Fair Sentencing Act. [00:49:58] Speaker 00: So does it have to be determined or that is the judge have to announce this is the new statutory range or is it just a question of whether the act applies? [00:50:14] Speaker 00: I didn't realize there was a step where it's required to actually have the judge make some determination. [00:50:20] Speaker 02: Well, 404B requires the court to figure out how the Fair Sentencing Act [00:50:27] Speaker 02: would have affected the sentence. [00:50:29] Speaker 02: The term as if, this phrase as if sections two and three of the Fair Sentencing Act were in effect requires the district court to figure out what that effect would have been. [00:50:41] Speaker 02: And so because a court can't impose a reduced sentence unless it makes that determination, otherwise any reduction would not be as if. [00:50:55] Speaker 00: So then your view is that in making that as if determination, the judge has to use the jury found to determine the range, and then thereafter can use either one in its discretion. [00:51:09] Speaker 02: Yes. [00:51:10] Speaker 00: Got it. [00:51:14] Speaker 02: OK. [00:51:14] Speaker 02: OK, thank you. [00:51:15] Speaker 02: Thank you very much. [00:51:17] Speaker 03: Yeah, thank you. [00:51:18] Speaker 03: Mr. Kramer, you can have two minutes. [00:51:21] Speaker 05: Well, since it's on your side, would you please do me the favor? [00:51:26] Speaker 05: I can't find the pages right now. [00:51:28] Speaker 05: In the 404, and I thought it was in the context of the 404B proceeding, where did the judge misstate the matter in your view with respect to the obstruction? [00:51:41] Speaker 05: And where did defendants say something to suggest you got it wrong, Your Honor? [00:51:48] Speaker 04: So at page 59, [00:51:51] Speaker 04: of the district court's opinion. [00:51:53] Speaker 04: It says, Hicks engaged in obstructive conduct to withhold information from the grand jury that was investigating him for murder. [00:52:01] Speaker 05: Investigating him for murder. [00:52:03] Speaker 05: Him for murder. [00:52:04] Speaker 05: That's what I remembered. [00:52:05] Speaker 05: All right. [00:52:05] Speaker 04: What I would like to point you to is appendix page 282, where the government, this is from the government [00:52:13] Speaker 04: to Judge Green saying what the obstruction of justice was for Mr. Hicks was he bribed Mr. Hicks, I believe he said it means Mr. Jackson. [00:52:24] Speaker 04: He bribed not to give information to the grand jury in the form of money in the crack. [00:52:29] Speaker 04: They don't say a word about murder there, which clearly they would have about Mr. Hicks being involved in murder. [00:52:37] Speaker 04: That's it. [00:52:37] Speaker 00: Mr. Kramer, is this [00:52:40] Speaker 00: a direct response to the question of whether the grand jury was investigating him for murder. [00:52:46] Speaker 00: I understand the government's position would be, okay, obstruction count may be different, okay, the district court may ultimately have made a decision that Hicks wasn't involved. [00:52:56] Speaker 00: But the only question here is, was the grand jury investigating him for murder? [00:53:04] Speaker 00: And do we know one way or the other about that? [00:53:07] Speaker 04: The defense lawyer had given a talk about how Mr. Hicks was not involved in any murders or violence. [00:53:15] Speaker 00: Not involved, but what about whether he was being investigated? [00:53:19] Speaker 00: That, I understood, was the government's question. [00:53:22] Speaker 04: Right. [00:53:22] Speaker 04: And the defense lawyer said it had nothing to do with Mr. Hicks being involved in any murder. [00:53:29] Speaker 04: And this was the response to that by the government, that the bribery [00:53:34] Speaker 04: on page 282. [00:53:38] Speaker 04: I just want to say two more things. [00:53:40] Speaker 04: The mitigation here is extremely powerful. [00:53:47] Speaker 04: And the Supreme Court has said in Pepper that a defendant has a right to have post-sentencing rehabilitation considered when there's a resentencing procedure. [00:53:58] Speaker 04: No indication the judge considered any of the mitigating circumstances and that her decision on how the jury found facts were irrelevant. [00:54:10] Speaker 04: It was the judge found facts that would drive [00:54:12] Speaker 04: the guidelines range and the statutory range seemingly colored her view of the discretionary phase. [00:54:20] Speaker 04: And then I just want to say one last thing. [00:54:23] Speaker 04: It's extremely important, especially in this case, to be certain because under the First Step Act, the defendant only gets one shot at it. [00:54:31] Speaker 04: They are precluded from filing [00:54:33] Speaker 04: a second First Step Act motion. [00:54:36] Speaker 04: They're precluded from any relief by Section C, which says if a previous motion was made and denied after a complete review of the motion on the merits. [00:54:47] Speaker 04: I guess our argument is that this wasn't a complete review, but in any event, it's extremely important because they cannot have another chance to file another First Step Act motion the way it's currently written. [00:55:01] Speaker 04: Thank you very much. [00:55:02] Speaker 04: We would ask you to pay some further consideration. [00:55:05] Speaker 04: Thank you. [00:55:07] Speaker 03: Mr. Kramer, Ms. [00:55:08] Speaker 03: Gabriel, thank you both. [00:55:09] Speaker 03: The case is submitted.