[00:00:01] Speaker 01: Case number 19-3024, United States of America versus Kelby Gordon at balance. [00:00:08] Speaker 01: Ms. [00:00:08] Speaker 01: Baer for the appellant, Ms. [00:00:10] Speaker 01: Heffernan for the appellee. [00:00:23] Speaker 03: Ms. [00:00:23] Speaker 03: Baer, are you unmuted? [00:00:24] Speaker 03: Is she unmuted, Anne? [00:00:26] Speaker 03: Yep. [00:00:27] Speaker 03: Yes. [00:00:29] Speaker ?: Okay. [00:00:30] Speaker 03: Ms. [00:00:30] Speaker 03: Pair, you may proceed. [00:00:32] Speaker 02: Good morning, Your Honors, and may it please the court, Claudia Pair, Court Appointed Counsel for Appellant Kelby Gordon. [00:00:37] Speaker 02: I'd like to reserve two minutes for rebuttal. [00:00:40] Speaker 02: Following Mr. Gordon's conviction for distribution of just under half a gram of fentanyl analog, the district court imposed a sentence over three times the high end of the guidelines recommended range. [00:00:51] Speaker 02: In so doing, the district court committed reversible, procedural, and substantive error related to its imposition of a consecutive sentence [00:00:59] Speaker 02: its treatment of the drug in question, and its review of Mr. Gordon's criminal history. [00:01:05] Speaker 02: Consequently, we ask that this court vacate and remand Mr. Gordon's sentence for resentencing. [00:01:12] Speaker 02: Giving this panel's order regarding US v. Abney, I'd like to turn first to the consecutive sentencing issue. [00:01:19] Speaker 02: Under this court's precedent, most recently in Abney, defense counsel in this case did all that it needed to do in order to preserve the claim of error under Rule 51B. [00:01:29] Speaker 02: It informed the court of the ruling it wanted, a concurrent sentence, and of the grounds for so doing, invocation of the sentencing factors. [00:01:38] Speaker 02: Just as in ABNY, this involves a claim of procedural error, but it involves an error that is a requisite of sentencing. [00:01:46] Speaker 02: Exercise of the district court's authority to impose a consecutive or concurrent sentence is predicated on the district court's consideration of the sentencing factors. [00:01:57] Speaker 02: Just as in ABNY, this is an item that should be on a judge's standard sentencing transcript or checklist. [00:02:05] Speaker 02: ABNY envisions situations where a more detailed objection or explanation would be required, like in the case of a buried flaw in the sentencing calculation. [00:02:15] Speaker 02: This is not one of those instances. [00:02:19] Speaker 02: Consequently, this court's review is for abuse of discretion, and other circuits have agreed. [00:02:23] Speaker 02: For example, the Fifth Circuit in Izaguirre-LaSoya [00:02:26] Speaker 02: said that the same challenge was preserved by the defendant's repeated requests for a concurrent sentence. [00:02:32] Speaker 02: And the district court in this case did abuse its discretion. [00:02:37] Speaker 02: The district court did not consider the sentencing factors relative to the consecutive sentence decision. [00:02:44] Speaker 02: And it didn't indicate why it felt a 10-year sentence on top of a 32-year sentence was appropriate. [00:02:51] Speaker 02: The discussion of the sentencing [00:02:53] Speaker 00: District Court ran through the 3553A factors. [00:02:59] Speaker 00: It did. [00:02:59] Speaker 00: How would that analysis be different on the question of consecutive versus concurrent than it is just more generally on the question of what the appropriate sentence would be? [00:03:14] Speaker 02: So the District Court's discussion of the sentencing factors relates to its [00:03:19] Speaker 02: relates to the term of the sentence only and the statements the district court makes makes this clear. [00:03:25] Speaker 02: So when summarizing his findings in a number of places, the district court says these findings justify a substantial upward variance. [00:03:33] Speaker 02: So that's Appendix 525, 526, and 530. [00:03:36] Speaker 02: And at the end of the district court notes that something in the 10-year range is appropriate for Mr. Gordon and then again just summarizes how the factors support that 10-year range. [00:03:48] Speaker 02: Just like the Seventh Circuit in Jackson, this discussion explains only why the district court thought that an above-guidelines sentence was appropriate. [00:03:58] Speaker 02: It doesn't explain why the district court thought a consecutive sentence was appropriate and other aspects that other courts have found. [00:04:08] Speaker 02: Ms. [00:04:09] Speaker 03: Payer, can you hear me? [00:04:13] Speaker 03: Yes, I can. [00:04:15] Speaker 03: Can you hear me? [00:04:17] Speaker 03: Yes, sorry. [00:04:19] Speaker 03: I see your point, but as soon as he finished his discussion of the 3553, he went right into the discussion of the consecutive sentences. [00:04:29] Speaker 03: So isn't it fairly clear that the discussion of the consecutive sentence was related to [00:04:36] Speaker 02: discussion of the 3553 factors no and i wouldn't really characterize it as a discussion of the consecutive it's at that moment the district court is just imposing the consecutive sentencing um there's nothing suppose he had just said for the same reason i impose consecutive sentences suppose he had that phrase in there would that have made a difference is that what's missing there what's missing in this case is an [00:05:05] Speaker 02: indication in the record that the district court considered the sentencing factors relative to the consecutive sentence. [00:05:10] Speaker 03: Well, that was my question. [00:05:11] Speaker 03: Suppose he had, right before he imposed consecutive sentences, he had said, for the same reason, referring back with discussion of the 3553A factors. [00:05:23] Speaker 02: So the Sixth Circuit, for example, Kitchen and Johnson found that a reference to... Would that have been enough? [00:05:32] Speaker 02: If the district court indicated that the sentencing factors also supported the consecutive sentence and that adequately explains the sentence, then it may have been enough. [00:05:42] Speaker 02: But that did not happen in this case. [00:05:44] Speaker 02: There was no indication that the same factors justified the consecutive sentence. [00:05:49] Speaker 02: And factors may cut different ways on the consecutive concurrent decision versus the term. [00:05:54] Speaker 02: Though the court also didn't explain why the aggregate sentence in this case, 42 years, would be appropriate. [00:06:00] Speaker 02: under the sentencing factors. [00:06:03] Speaker 02: And the district court also didn't even state its discretion to impose a consecutive or concurrent sentence, which is what the court did in Kitchen and Johnson Six Circuit cases. [00:06:15] Speaker 02: This lack of an explanation is particularly inadequate when this case involves a triple to quadruple guidelines range and the aggregate sentence involved is 42 years. [00:06:27] Speaker 02: But I'd like to turn now to the more glaring error that the district court made. [00:06:30] Speaker 02: the district court repeatedly justified Mr. Gordon's sentence based on his distribution of fentanyl and his distribution of fentanyl to someone who had requested heroin. [00:06:41] Speaker 02: But as the government even concedes in its brief, there is no evidence in the record that establishes that Mr. Gordon knew that the substance he was distributing was fentanyl. [00:06:51] Speaker 02: One of two things happened in this case. [00:06:53] Speaker 02: Either the district court imposed the substantial upward variance [00:06:56] Speaker 02: after assuming that Mr. Gordon knew that he was giving the detective fentanyl, even though there's no supporting evidence, or the district court imposed the upward variance based solely on the fact that the drug turned out to be fentanyl without regard to whether there was evidence of knowledge under a strict liability type theory. [00:07:13] Speaker 02: The first of those is procedural error. [00:07:16] Speaker 02: A district court may not rely on clearly erroneous facts in sentencing, and both are substantive error. [00:07:23] Speaker 02: It is unreasonable to find Mr. Gordon significantly more culpable [00:07:27] Speaker 02: and deserving of a substantial upward variance when there is precisely zero evidence that Mr. Gordon knew that the drug he distributed was actually fentanyl. [00:07:40] Speaker 02: Either way, this fact that Mr. Gordon ended up distributing fentanyl became a prominent feature of the district court sentencing analysis. [00:07:51] Speaker 02: It is the first factor that is mentioned. [00:07:54] Speaker 02: It is mentioned repeatedly throughout the sentencing transcript. [00:07:57] Speaker 02: And its influence isn't limited to the nature and circumstances of the offense. [00:08:01] Speaker 02: It also influences the district court's analysis of criminal history and unwarranted sentencing disparities. [00:08:07] Speaker 02: So on 528, for example, the district court notes that Mr. Gordon is part of this trend of hardened drug dealers who start as street-level dealers of marijuana, but then progress to selling one of the most dangerous drugs on the street, fentanyl. [00:08:22] Speaker 02: And with reference to the unwarranted sentencing disparities, the district court [00:08:26] Speaker 02: says that an aggravating circumstance for Mr. Gordon is that he was the only one who distributed fentanyl. [00:08:34] Speaker 02: This is also another clearly erroneous fact, because Mr. Gordon was not the only one who was distributing fentanyl. [00:08:43] Speaker 02: And the detectives' testimony established that Mr. Anderson is the one who handed Mr. Gordon the package that he handed to the detectives. [00:08:58] Speaker 02: That is reasonably unreasonable as well as by the Sixth Circuit's decisions in Klin, Hubbard, and Rawson. [00:09:05] Speaker 02: In all three of the cases, the variance imposed was smaller than one here, both in terms of absolute numbers and in terms of percentages, and also the guidelines treatment under 2D1.1. [00:09:16] Speaker 02: I realize that I'm in my rebuttal time, but if I could quickly touch on the third error we've identified, which is that the district court [00:09:28] Speaker 02: repeatedly when analyzing Mr. Gordon's criminal history repeatedly justified the variance with reference to what could have been if he had qualified as a career offender were it not for this court's decision in Winstead. [00:09:42] Speaker 02: This is an enhancement that Mr. Gordon is not legally eligible for and repeated references to what could have. [00:09:50] Speaker 02: Oh, sorry. [00:09:53] Speaker 02: Oh, I thought, sorry, I thought I heard something. [00:09:56] Speaker 03: No, something to do with you, I'm sorry. [00:10:00] Speaker 02: But repeated references to what could have been to justify was actually imposed or to explain why a dramatic variance actually isn't that dramatic, is unreasonable. [00:10:09] Speaker 00: There were a substantial number of convictions and incidents that produced zero criminal history points. [00:10:21] Speaker 00: Why isn't it fair for the district court to say, [00:10:26] Speaker 00: that's a legitimate consideration. [00:10:28] Speaker 00: And the fact that the guidelines might zero out one or two doesn't compel me to ignore the fact that there are nine. [00:10:37] Speaker 02: Because the district court didn't just do that. [00:10:40] Speaker 02: It repeatedly referenced this parallel universe pre-Winstead or no-Winstead where Mr. Gordon qualifies for the enhancement and gets a guidelines range of 210 to 262. [00:10:51] Speaker 02: And these repeated references [00:10:53] Speaker 02: and beginning the analysis with this reference, it changes the framework. [00:10:56] Speaker 02: So anything below 210 suddenly seems much more reasonable, but that's not the framework. [00:11:01] Speaker 02: The framework in this case is the guidelines range, which was 30 to 37, and 120 months is a dramatic leap above that. [00:11:09] Speaker 02: And this, what Mr. Gordon could have been eligible for shouldn't have been part of this analysis at all. [00:11:20] Speaker 03: Thank you. [00:11:21] Speaker 02: Thank you. [00:11:21] Speaker 03: We'll hear from the other, yeah. [00:11:26] Speaker 01: May it please the court, Patricia Heffernan on behalf of the United States. [00:11:30] Speaker 01: Picking up with the third issue, the Winston issue, it's entirely proper for the district court to consider these old, unscored convictions. [00:11:42] Speaker 01: There's nothing improper about that. [00:11:44] Speaker 01: And as the court recognized, not only were these simply old convictions, [00:11:49] Speaker 01: These were convictions of the same or similar type of conviction. [00:11:54] Speaker 01: And the court has recognized in Molina that where you have same or similar convictions, it makes it much more likely that the defendant is going to be a recidivist with respect to that crime. [00:12:07] Speaker 01: And if this case doesn't prove the rule, I don't know what does, with the nonstop [00:12:13] Speaker 01: basically whenever the defendant is on the street, he's on Burnie Place in that particular block selling drugs and out with weapons. [00:12:22] Speaker 01: And the district court quite properly recognized based on his history that he was a menace and that nothing short of a sentence significantly longer than the guideline range called for was necessary to protect the public [00:12:40] Speaker 01: from Mr. Gordon. [00:12:44] Speaker 01: And regardless of the reference to Winstead, the court was simply pointing out that, but for these guilty pleas, he would have been subject to Winstead. [00:12:56] Speaker 01: But this is a sentence that is half of what would have been imposed under Winstead, had Winstead not come into play. [00:13:07] Speaker 01: And so it's just not accurate to say that this is a Winstead violation. [00:13:14] Speaker 01: With respect to the district court's reference to the fentanyl in this case, this is obviously a fentanyl case. [00:13:21] Speaker 01: That's what the defendant sold. [00:13:23] Speaker 01: But the district court made it quite clear that there were two independent bases for the variance that imposed here. [00:13:31] Speaker 01: One, the defendant's extreme criminal history and the need to protect the public. [00:13:36] Speaker 01: And the second independent basis it found was the unwarranted sentencing disparities in the case. [00:13:42] Speaker 01: And then it remarked that if you consider those two independent bases together, coupled with the fentanyl, the variance was more than justified. [00:13:52] Speaker 01: So the references to fentanyl did not play into [00:13:57] Speaker 01: the ten-year did not impact the decision to impose a ten-year variant, the variance to ten years excuse me, in this case. [00:14:10] Speaker 01: With respect to, I guess if there are no questions on those two points, I'll just move briefly onto the consecutive nature of the sentence here. [00:14:16] Speaker 01: This is not a, and with respect to the court's request that we address ADNY, this is not the type of [00:14:26] Speaker 01: error that's alleged here that's of the type that ABNY considered, the district court's refusal to let the defendant allocate before imposing sentence. [00:14:38] Speaker 01: And as the court pointed out in piles, the Supreme Court in Rita rejected the notion that it's error for a district court to fail to articulate on the record all of its consideration of the 3553 factors. [00:14:53] Speaker 01: And in this case, [00:14:55] Speaker 01: The district court gave a very thorough detailed consideration of the 3553 factors and I think when you read this transcript, there is no doubt that those factors applied both in terms of the length of the variance. [00:15:11] Speaker 01: and the consecutive nature of the sentence that imposed. [00:15:15] Speaker 01: The district court said, with respect to the argument that the defendant advanced, which was, hey, I've got 32 years in this murder case, so there's no point in giving me consecutive time here. [00:15:29] Speaker 01: The district court responded to that by saying, I'm sentencing you for your conduct here in this case. [00:15:35] Speaker 01: And if there's nothing that comes across from that transcript clear, it's that, [00:15:39] Speaker 01: The district court believed that based on the defendant's individual, defendant-specific factors, 10 years was an appropriate sentence in this case, regardless of what was going to happen in the murderer case. [00:15:55] Speaker 01: And finally, with respect to the invocation of Jackson, Jackson was a very different case. [00:16:00] Speaker 01: Here, the argument was, don't give me any, give me concurrent time because of my murder sentence, the district court [00:16:07] Speaker 01: addressed that argument and said, no, I'm sentencing you for your conduct in this case. [00:16:11] Speaker 01: So this is not a Jackson type case. [00:16:14] Speaker 01: If there are no questions, we ask that the judgment be affirmed. [00:16:20] Speaker 03: Judge Kansas, Judge Edwards, any questions? [00:16:22] Speaker 03: Oh, great. [00:16:23] Speaker 03: Okay, well, thank you. [00:16:25] Speaker 03: Thank you. [00:16:28] Speaker 03: Thank you. [00:16:29] Speaker 03: Ms. [00:16:30] Speaker 03: Pierre, I think you are out of time, but you can take one minute if you'd like. [00:16:33] Speaker 02: Thank you, Your Honor. [00:16:34] Speaker 02: I'd like to address two points. [00:16:36] Speaker 02: First, on the ABNY error, this is the type of procedural error that ABNY talks about. [00:16:41] Speaker 02: It's an overarching duty. [00:16:43] Speaker 02: That's a requisite of sentencing. [00:16:44] Speaker 02: It should be in a sentencing transcript or a script. [00:16:48] Speaker 02: Additionally, the reference to the 32 years in this case, it doesn't explain why a consecutive sentence is appropriate. [00:17:01] Speaker 02: For example, district court says that [00:17:03] Speaker 02: The defendant should get a bonus for committing more significant criminal behavior. [00:17:08] Speaker 02: This is just like the line in Ross and in Jackson that the sixth and seventh circuits found inadequate. [00:17:14] Speaker 02: In Ross, it was a credit for bad behavior. [00:17:16] Speaker 02: In Jackson, it was a bonus. [00:17:20] Speaker 02: The second is [00:17:22] Speaker 02: to suggest there are two independent bases for the district court's decision ignores the prominence of the fentanyl analysis throughout the district court's decision. [00:17:31] Speaker 02: It also acts as if the factors are totally isolated from one another and they are not. [00:17:39] Speaker 02: I see I am out of time. [00:17:40] Speaker 02: So I got that. [00:17:43] Speaker 03: Thank you. [00:17:44] Speaker 03: Right. [00:17:45] Speaker 03: So Ms. [00:17:46] Speaker 03: Heffernan, thank you very much. [00:17:48] Speaker 03: We will take the case under submission.