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Case number 19-3015, United States of America versus Keniel Ian Thomas, also known as David Morgan, appellant.

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Mr. Armina for the appellant, Mr. Coleman for the appellee.

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Mr. Armina, good morning.

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Good morning.

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You may proceed at any time you want.

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Good morning.

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May it please the court?

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Rosanna Teramina from the Federal Public Defender's Office on behalf of appellant Keniel Thomas.

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I'd like to reserve three minutes for rebuttal.

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Mr. Thomas's 71 month sentence in this case is 14 months higher than the high end of the guidelines range erroneously calculated by the district court.

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It is 30 months higher than the high end of the range erroneously contemplated by the parties.

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And it is 41 months more than twice the high end of the correctly calculated guidelines range of 24 to 30 months.

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As we outlined in our briefs, Mr. Thomas's sentence suffers from numerous errors.

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including two straightforward guidelines errors, the underlying merits of which the government does not appear to substantively contest.

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Those errors and the sentencing hearing overall were informed by the conflation of two separate, distinct, and materially different crimes, extortion, which qualifies as a crime of violence under the Armed Career Criminal Act, and fraud, which does not.

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Mr. Thomas pleaded to and was convicted of extortion, which is a crime of violence because it involves a threat to injure the person of another.

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Such a threat was issued in this case by telephone to Mrs. Linda Webster, during which Mr. Thomas threatened to kill Mrs. Webster and her husband, Judge William Webster, if Mrs. Webster did not send appellant $6,000.

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It is this conduct and this conduct alone that constitutes the offense of conviction,

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And it is this conduct that controls the operation of the United States Sentencing Guidelines.

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Because the extortionate demand in this case was $6,000, it was error for the district court to increase Mr. Thomas's offense level by one point under Section 2B2B1 for demanding more than $20,000.

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The government effectively concedes this error on page 39 of its brief, where it states that it is true that the specific charge in which appellant pleaded guilty involves demands of only five to $6,000 from Mrs. Webster.

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That statement not only acknowledges the error with respect to the amount demanded, specific offense characteristic, but it also acknowledges the fact that Mrs. Webster is the only victim of the offense of conviction in this case, and thus the only person to whom the

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Section 3's vulnerable victim enhancement could potentially apply.

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Neither the district court and its independent guidelines analysis nor the government made any argument because there is none that Mrs. Webster is in any way unusually vulnerable as the term is used in the guidelines commentary.

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But even were we to assume that Judge Webster were also a victim of the extortionate conduct in that he had an ownership interest potentially in the $6,000,

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and his life was indirectly threatened.

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Judge Webster, even at the age of 90, is of the least vulnerable among us.

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Again, neither the district court nor the government made any argument that Judge Webster was in any way unusually vulnerable within the meaning of the Section 3A1.1B1 beyond citing his age.

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And as courts have routinely found, and the government does not dispute,

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Age alone does not suffice for the application of Section 3A, 1.1's Vulnerable Victim Enhancement.

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Combined, the amount demanded, specific offense characteristic, and the Vulnerable Victim Enhancement increased Mr. Thomas's guidelines calculation by three levels.

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The court- Isn't it established that the defendant did demand a larger sum, 20,000, from Judge Webster?

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So I would quibble with the word demand.

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He requested via an attempt to defraud $20,000.

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He did not demand via extortion $20,000.

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At no point, at no point did Mr.

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Thomas directly threatened Judge Webster.

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The way I was going with that was somewhere else, which is to say, just as Judge Webster has an interest in the $6,000 threatened or sought from Mrs. Webster, so too she has an interest in the $20,000 sought from the judge.

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Even if that were the case, there is no threat involved within the $20,000.

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There's also no evidence that there was a communication between the two of the $20,000 request, again, via fraud.

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That conflation really is the problem here.

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There was no extortionate demand at any point of Judge Webster or

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Mrs. Webster of any more than $6,000.

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So whether we look at them individually or as a unit, the extortionate demand in this case was $6,000.

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And again, sure.

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What do you make of the government's observation that there were other victims who were sure quote surely qualified as vulnerable?

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Okay, so the language of 3A1.1, the commentary specifically, and this is why it's so important, the government's concession that the extra plea conduct does not qualify as relevant conduct.

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And only relevant conduct can be considered in applying the vulnerable victim enhancement.

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So the vulnerable victim enhancement specifically says in the commentary,

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that it means a person who is the victim of the offense of conviction, or any conduct for which the defendant is accountable under 1B1.3, relevant conduct, and the government has conceded.

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Just a second.

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Yes.

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Yes.

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Defendant stipulated to the 20,000.

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He agreed in the plea agreement, and- He agreed to the calculation, which states that 20,000.

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Yes, Your Honor.

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The court, and so the case that I believe would be somewhat analogous, but certainly distinguishable, and I'll distinguish it for you here, would be the Lasley case in which the defendant in that case challenged an enhancement to which he had stipulated in his plea agreement.

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In which we say this court does not allow parties to reopen issues waived by stipulation.

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Certainly, but in that case, the court made three specific, I would say three specific statements that are relied on three specific facts that are not present here.

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First, it specifically said that the district court had no occasion to pass on the specific enhancement and thus relied on the party's agreement in applying it.

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That is not the case in this case.

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The district court specifically put aside the plea agreement in some sense and said,

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Mr. Amina.

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Yes.

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I realize that you're the advocate in this case, but you're also an assistant federal public defender.

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Yes.

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The interest of your clients as a group lies in their being able to make a binding commitment such as this, that they be able to agree ex ante, so that they have a bargaining chip.

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But Your Honor,

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This is a disservice to defendants.

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I don't believe so.

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I think that the disservice is allowing the system to permit defendants to agree to enhancements under facts that simply do not apply.

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There's there's ways for the government and there would be ways for the government and defendants to to account for this type of behavior, but these enhancements don't apply.

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This is a contract and it's it's an important contract in which every provision.

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is subject to negotiation and part of a larger deal.

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And we just can't get into a situation in which we're questioning what is so clearly there in print.

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Your Honor, it's absolutely there in print.

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And there is an interest.

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And the Supreme Court has recognized it most recently in Rosales Morales.

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for these guidelines calculations need to be correct.

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And the district court, despite the party's agreements, has an independent obligation.

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It must calculate the guidelines correctly.

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And in this case, the court did not rely on the parties.

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It specifically said it did not rely on the parties.

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It doesn't calculate the guidelines correctly, meaning correctly in light of the facts, including those that have been stipulated.

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But those facts that have been stipulated, nevertheless, do not support the application of these enhancements.

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They simply do not.

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Well, insofar as you're talking about $6,000, it says 20.

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No, the statement of offense, in the background of the statement of offense, there is a narration of Mr. Thomas's

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proceeding contact with Judge Webster.

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But because there's a narration that doesn't turn that conduct into a crime that it is not.

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And in fact, that's a part of Lasley.

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What's interesting about the court, that's one of the distinguishing factors of Lasley, was that this court specifically acknowledged that the facts supporting the enhancement that was at issue were contained in the statement of facts that were attached to the plea agreement.

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There are no facts in the statement of a facts that would turn a fraudulent demand into an extortionate demand.

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There are no facts in the statement of offense that turn Mr. Or sorry, Judge Webster into a vulnerable victim.

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Now saying that that the plea to extortion should also be treated by the district court as a plea to fraud.

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No, no, no, no.

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The plea is is only to extortion.

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Right.

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And so the district court has an independent obligation to calculate the guidelines correctly, regardless of the party's agreement.

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And I mean, Your Honor, I believe it's distinguishable.

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I don't believe that the court in any way relied on this agreement in calculating, making an independent option.

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In fact, the court stated this court has an independent obligation to review how the guidelines apply, essentially, regardless of

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the PSR and regardless of the plea agreement.

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So this is similar to the cases where an issue is not pressed but passed upon, the court had the opportunity to analyze this issue.

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It did analyze this issue and its guidelines calculation is incorrect.

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Now, should the court, I believe that this is an error, a district court error of calculating the guidelines, but should the court find

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that it is absolutely ineffective assistance for council to have agreed to these two guidelines calculations or enhancements, excuse me, when they simply do not apply.

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They don't apply legally, they don't apply factually.

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And I think that, again, to some extent, the government concedes the underlying merits that the only

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at page 39, they concede that the offensive conviction involved only an extortionate demand of $6,000 from Mrs. Webster.

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And to get at that, whether it be directly, which I believe that the court has the power to do, or indirectly through the ineffective assistance, I think that these are plain errors that under either avenue can be corrected.

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Can I ask two quick questions?

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Absolutely.

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Is your client's position that he would have rejected the plea offer if he had not had ineffective assistance on the vulnerable victim and the amount demanded?

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I think that the government raised what it is essentially is your question, does he need to have rejected

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gone to trial, but for those things or or is the substance, I'm sorry, the I think my question, my question is the is the US versus Marshall question, which is right.

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What do you have gone to trial otherwise?

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No.

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So US versus Marshall was was was a case that did not involve sentencing error.

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The allegation in US versus Marshall was the defendant

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wanted his attorneys to, I think, challenge the qualifications

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of the government's expert witness at trial.

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I don't remember the names, but there are sentencing cases that make exactly the same point.

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Well, there's also sentencing cases and they're in our briefs that directly quoted that the prejudice here is whether or not the sentencing proceeding would have been different.

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So would he have gotten, is it reasonably likely that he would have gotten a different sentence?

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That's where there's no plea.

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Those cases are not plea cases.

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The problem we have here is a plea, and if you want to get out of the plea, assume for the moment you can't get out of the plea for your other reasons.

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But if you want to get out of the plea, then the test is supposed to be, you have to show but for the alleged errors, there wouldn't have been a plea, would have rejected the plea.

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I don't believe that

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Here we're saying like at least in the initial in the initial sorry in the the straightforward allegation of error by the district court.

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Where that allegation is that the district court had an independent obligation to to

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calculate the guidelines correctly, independent of the plea agreement?

[00:15:17] Speaker 04:
No, I'm not asking that question.

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I'm asking, you said that if that's, if we didn't accept that, then it's clear ineffective assistance of council.

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So now I'm, so I'm just trying to follow up on what ineffective assistance of council means under these circumstances.

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And my understanding is that it means you have to, you know, show that without those errors,

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He wouldn't have accepted the plea.

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But I would think that I don't think that that's appropriate in this case where someone has accepted guidelines, errors that don't apply.

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Does that make sense?

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Because if you remove, he's already accepted those errors.

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So I don't believe that that is the appropriate way to look at this.

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And there is, I believe it's Rodriguez.

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Can we just go back for a second?

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Yes.

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I want to try to tease out the different arguments, OK?

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So assume we don't agree with your argument that we assume the plea is still good, but for ineffective assistance.

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But the plea is still good and that we take Judge Ginsburg's point that there are stipulations.

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And so there's no more challenging that the plea means you can't challenge that part.

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And then I took your argument to be, well, that it was ineffective assistance for the defense counsel to accept, to enter into a plea that had those erroneous positions in it.

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Right.

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That's your argument.

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All right.

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Yes.

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Yes.

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Under those circumstances, there has to be a reasonable probability that, but for the counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial.

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I don't believe that that's true, Your Honor.

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I believe because the errors are guidelines errors.

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I'm trying to tease out what the implications of what you're saying because we have guidelines errors that he agreed to that don't apply.

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It's not possible to say, but for those errors, he would have gone to trial.

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He agreed to guidelines calculations that don't apply.

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They're higher than are applicable.

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So the question would be- We are not taking the position that

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But for these errors, he would be going to trial.

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You're not taking that position.

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I don't understand how that would apply, because he's worse off in the plea agreement.

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So I simply don't want to say that I'm not taking that position.

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I'm just having a hard time understanding.

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In effective assistance with respect to the plea,

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entitled to counsel who understands the guidelines and who could counsel him with respect to a plea, I think.

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I understand.

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And if you have ineffective counsel who entered into a bad plea and you get out of the plea, but for that bad counsel,

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you would have gone to trial.

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That's Lee versus the United States.

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That's the classic test.

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And I'm happy to try to find the cases, but I believe that why would it not be that he is just entitled to effective counsel that would counsel him correctly with respect to a plea?

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He is, but the question is, do you get out of the

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I guess there's no reason to argue about that.

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That's what the case law says.

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But we're not making any progress on arguing about what the case law says.

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Let me ask another question.

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We have gone all this time and not discussed the plea provisions that the government says mean you can't challenge anything other than the extent of the departure.

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Don't you think you should address that?

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Absolutely, Your Honor.

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I believe that this case, first and foremost, is governed by this court's precedent in Godoy, United States versus Godoy, which has been reaffirmed several times since then, that the language of the appellate waiver, if characterized differently by the court during the 11C1C

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It has to be a fundamental mischaracterization, right?

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I don't see why it would have to be fundamental.

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Because that's what our cases say.

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The cases say that however the court characterizes, the plea agreement controls.

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But that has to be a fundamental mischaracterization compared to what's in the plea agreement.

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In both Godoy and

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I believe Ferreri, there's also Brown, there were fundamental mischaracterizations which actually I think make this case even easier because here it wasn't a fundamental mischaracterization, it was actually a clarification of the natural understanding of what the words to the extent that mean.

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The court interpreted it as unless and

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There's no reason to believe that a defendant, and Godoy certainly says this, that it's how the defendant would understand those words.

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There's no reason to believe that the defendant would understand those words in a more nuanced way than the district court explained.

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And the district court used the word unless.

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We cited cases in our brief where courts

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replace the words to the extent that with unless.

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And in this case, because the court used the word unless, and again, even had it not, we would argue that unless is the most natural reading of the provision.

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And even if it is 75% one way and 25% the other, it's ambiguous and subject to the language needs to be strictly construed against the government.

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So I believe here that there is two conditions that the court set forth that would allow the defendant to plea with no other conditions attached.

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So it was if the court, sorry, if the court sentenced the defendant above the statutory maximum, or if the court departed above the guidelines that it had determined, then Mr. Thomas could appeal.

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There are no other conditions beyond that.

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And so I believe both under Godoy and then even were we not to use the courts unless as binding, it certainly is evidence that that's the natural reading of that language.

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It's how the court interpreted it.

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And it's how, again, how Mr. Thomas would naturally interpret it.

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I don't see how he would interpret it any different.

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So I simply don't see that appellate waiver here is an issue.

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Another thing, it would be short.

[00:23:00] Speaker 04:
Another judge has a question.

[00:23:01] Speaker 01:
Judge Ginsburg, do you have a question?

[00:23:05] Speaker 01:
No.

[00:23:05] Speaker 01:
All right.

[00:23:05] Speaker 01:
Then we'll give you a couple of minutes and reply.

[00:23:08] Speaker 01:
Thank you.

[00:23:08] Speaker 01:
We'll hear from Mr. Coleman now.

[00:23:10] Speaker 01:
Thank you.

[00:23:12] Speaker 02:
Good morning, Your Honors.

[00:23:13] Speaker 02:
My name is Nick Coleman.

[00:23:13] Speaker 02:
I represent the United States.

[00:23:16] Speaker 02:
I think much of Appellant's argument, both in his brief and here today,

[00:23:23] Speaker 02:
It seems to be more of the kind of arguments that women raise if there were no plea agreement.

[00:23:31] Speaker 02:
But this is a plea case.

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And the reality is that in his plea agreement, he both waived the right to appeal his sentence, except to the extent that it exceeded the applicable guidelines range or the statutory maximum.

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And he also stipulated to some basic facts as part of the actual guidelines calculation itself.

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Those provisions have meaning.

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They should be enforced by this court and thus appellants challenges on those subjects should be treated as waived.

[00:24:10] Speaker 02:
I'd like to begin with the question of the plea.

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waiver.

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And I think it's telling that appellant here today says that, in fact, the judge did not mischaracterize the plea agreement in a fundamental way, and thus cases like Godoy do not control.

[00:24:30] Speaker 04:
I think when you look at how- To be fair, that's not what she said.

[00:24:35] Speaker 04:
What she said is that the judge clarified the meaning

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So it wasn't fundamentally inconsistent.

[00:24:42] Speaker 04:
It was completely consistent.

[00:24:44] Speaker 04:
That's her position.

[00:24:46] Speaker 02:
I realize that that's her position.

[00:24:48] Speaker 04:
You have to answer that argument.

[00:24:51] Speaker 02:
Right.

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And I think as to that argument, I have two responses.

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First, just looking at what Judge Howell actually said, at the very end of her very brief

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shorthand characterization of the plea waivers, which is designed, of course, in this context, simply to make sure that an appellant has understood what he signed.

[00:25:15] Speaker 02:
She refers expressly back to the page and paragraph and says, as described there.

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So I don't think that the judge was trying to say that it was her words that controlled how this plea waiver should be interpreted, but rather she was saying it's the written waiver.

[00:25:34] Speaker 02:
with respect to the written waiver itself, equating to the extent with unless in the way that appellant argues is simply not reasonable.

[00:25:46] Speaker 02:
Because in that case, what it says is although, what the parties are saying is that you cannot appeal essentially how this sentence was determined.

[00:25:55] Speaker 02:
In other words, you cannot appeal how the guidelines were calculated.

[00:26:00] Speaker 02:
You can't appeal your sentence except to the extent

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that the court exceeds the statutory maximum

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or exceeds the applicable guidelines range.

[00:26:10] Speaker 02:
That means that you can appeal that kind of a decision.

[00:26:14] Speaker 02:
There's no reason why the decision to exceed the statutory maximum or go above the guidelines range should then make everything else appealable.

[00:26:26] Speaker 02:
That isn't, we submit a reasonable interpretation of the provision.

[00:26:32] Speaker 02:
And certainly that,

[00:26:34] Speaker 02:
It certainly isn't what the government believed the parties were agreeing to.

[00:26:38] Speaker 02:
And I don't think that it can be reasonably said that that is what the parties actually understood in this instance.

[00:26:48] Speaker 02:
As such, we think that the appeal waiver should be fully enforced.

[00:26:53] Speaker 02:
And what is at issue here today is only the decision of Judge Howell to depart upwards.

[00:27:02] Speaker 04:
You know, Mr. Coleman, we're getting many, many more of these cases where the district judge varies in the language.

[00:27:09] Speaker 04:
Leave aside whether it's fundamental or not, but varies in the language from the plea agreement.

[00:27:15] Speaker 04:
I don't understand why your office doesn't have a policy of assistant US attorneys pointing out to the judge the exact language.

[00:27:24] Speaker 04:
and asking the judge to use the exact language rather than any modification.

[00:27:30] Speaker 04:
I don't know, this is probably the third or the fourth of these cases I've sat on, and believe me, I'm a random assignment here, so there must be a lot of other ones like this too.

[00:27:41] Speaker 04:
Why is this happening?

[00:27:44] Speaker 02:
In answer to your question, Your Honor, I can say that since Godoy, we have within our office had training for Assistant U.S.

[00:27:52] Speaker 02:
Attorneys on this subject, that we have tried both to make sure that the plea waiver itself is written in a very clear way, but also to have Assistant U.S.

[00:28:01] Speaker 02:
Attorneys step in.

[00:28:04] Speaker 02:
We have asked them to step in and correct district judges if they make statements.

[00:28:11] Speaker 02:
There are a lot of please.

[00:28:12] Speaker 02:
And so unfortunately, there are going to be some instances where the assistant attorney may not jump in when the district court speaks.

[00:28:20] Speaker 02:
The one thing I could recommend is that perhaps district judges should be asked

[00:28:27] Speaker 02:
perhaps simply to read the language of the plea waiver rather than try to re-characterize it or summarize it, et cetera, because I do agree that when the judge tries to paraphrase or summarize or put it in layman's terms, that it does create the potential for later litigation saying that, well, it's the judge's words that should control and not what was written.

[00:28:50] Speaker 02:
I think Judge Howell tried here by expressly referring back to the language

[00:28:56] Speaker 02:
the page and the paragraph number of the agreement.

[00:29:00] Speaker 02:
She tried here to refer back to that, to indicate that, look, again, it's not her words that control, that's not the plea waiver, what she says, it's what appellant actually signed.

[00:29:10] Speaker 02:
And I think it's reasonable for district judges to assume that defendants who are represented by experienced counsel, that they've gone over this and they understand it.

[00:29:20] Speaker 02:
And I don't think that the written plea waiver is written in such a way that it's really that confusing.

[00:29:25] Speaker 02:
I think it's pretty clear that it means what it says, which is that you can appeal to the extent that it exceeds the statutory maximum of the guidelines range, but you can't appeal anything else.

[00:29:35] Speaker 02:
And it's only to that extent.

[00:29:38] Speaker 02:
Again, though, even if this court were to have some concerns about that, I don't think that, as we've explained in our brief, appellants' arguments here simply don't have merit, even if that appeal waiver were considered to be problematic.

[00:29:55] Speaker 02:
With respect to the two enhancements that Appellant has focused on here today, and that's the $20,000 and the vulnerable victim enhancements, those were stipulated too.

[00:30:08] Speaker 02:
And as we've said in our brief, this is in the heartland, we think, of what would be covered by the invited error doctrine.

[00:30:18] Speaker 02:
The parties stipulated to these enhancement, the appellant stipulated for it.

[00:30:22] Speaker 02:
He essentially recommended to the court that it apply these enhancements as part of the deal.

[00:30:28] Speaker 02:
And to say that the judge erred now, we think that the invited error doctrine would preclude such a challenge.

[00:30:37] Speaker 02:
As to whether counsel was ineffective in agreeing to that deal,

[00:30:42] Speaker 02:
I think Marshall and Lee are very clear.

[00:30:44] Speaker 02:
Appellant has – he can't just argue that, well, here's this aspect of my plea deal that I don't like.

[00:30:51] Speaker 02:
So fix the plea deal for me, essentially take the plea deal and strike those provisions or allow me to challenge them now.

[00:30:59] Speaker 02:
And I don't think that that's the test.

[00:31:01] Speaker 02:
The test is you take the plea deal as a whole, and there's a good reason for that in this case.

[00:31:07] Speaker 02:
The statement of offense that appellant signed on to, which is just with respect to the Webster's, essentially was admitting to multiple counts of fraud with respect to Judge Webster and extortion with respect to Mrs. Webster.

[00:31:24] Speaker 02:
In other words, there were a lot of counts here that he signed on to the facts for alone.

[00:31:30] Speaker 02:
The government, what he was essentially admitting was that he could have been found guilty of multiple counts.

[00:31:35] Speaker 02:
And although the extortion guideline doesn't allow grouping of amounts, the fraud guidelines certainly do, and certainly would have supported a loss amount well in excess of $20,000.

[00:31:47] Speaker 02:
So this was a plea deal in which the government gave up the right to charge multiple counts

[00:31:56] Speaker 02:
And appellant in return admitted to facts or to enhancements that yes, do increase his sentence of what just a narrow extortion count might have supported as to the loss amount and perhaps as to the vulnerable victim.

[00:32:13] Speaker 02:
But that was the deal that the parties made.

[00:32:15] Speaker 02:
And since Appellant is not apparent, I'm not quite sure after listening to Appellant's argument whether he is saying he was prepared to go to trial.

[00:32:24] Speaker 02:
I guess he seems to resist saying one way or the other.

[00:32:28] Speaker 02:
But the fact that he is unwilling to say that, I think under Marshall, means that this argument should not be heard.

[00:32:35] Speaker 02:
And he can't make the claim that his counsel was ineffective unless he's prepared to say

[00:32:42] Speaker 02:
I got this bad advice from my attorney, he should have told me I could challenge these and therefore I was prepared to go to trial and all these other counts that the government could have brought me brought against me.

[00:32:50] Speaker 02:
He's not prepared to do that I think for a good reason because he didn't want to make that kind of a deal or to go to trial and that kind of evidence.

[00:33:00] Speaker 02:
So, you know, Chris, Helen has not raised here today the other challenges, I think, as to the upper departure.

[00:33:09] Speaker 02:
I'm not sure if the court has questions about those provisions.

[00:33:15] Speaker 04:
Just to just to make sure I understand the government's argument on ineffective assistance.

[00:33:20] Speaker 04:
Yes, you agree that the mitigating evidence, the failure to review the government exhibits the failure to submit the support of letters and the failure to submit documentation.

[00:33:33] Speaker 04:
showing the disproportionately longer sentence he would have because he was an alien, those should all be remanded under our normal remand of ineffectiveness issues, correct?

[00:33:43] Speaker 02:
Yes, because right now we simply don't have the record to address those.

[00:33:47] Speaker 02:
And those don't go to the plea deal itself, as I understand it.

[00:33:52] Speaker 02:
I think those have to do with what his counsel should have done at sentencing once the deal was already in place.

[00:33:59] Speaker 02:
Again, as we've said, we think that as this court has recognized,

[00:34:03] Speaker 02:
The remand doesn't necessarily means there has to be an evidentiary hearing because I think the court could, Judge Howell could say, look, those, I've looked at this and it wouldn't have made any difference.

[00:34:13] Speaker 02:
But that's in first instance for the district court to determine with a more fulsome record.

[00:34:18] Speaker 04:
She would at least have to look at that information.

[00:34:21] Speaker 04:
So I suppose, you know, it wouldn't be possible to say supporting letters wouldn't make any difference without looking at the supporting letters.

[00:34:30] Speaker 02:
I suspect that that's correct, Your Honor, which is why there has to be more factual development of those sort of rather narrow claims.

[00:34:39] Speaker 02:
Again, those claims, of course, you know, presuppose that the plea deal was

[00:34:46] Speaker 02:
valid and fully enforceable.

[00:34:48] Speaker 02:
And it's just that counsel should have presented these, which might, in theory, I suppose, might have caused Judge Howell to consider imposing something less.

[00:34:57] Speaker 03:
Mr. Coleman, the request for remand on ineffective assistance made by the defendant is by no means so limited as to just be submission of documentation.

[00:35:14] Speaker 03:
It was the failure of counsel to raise the Smith issue of variance at all, even though it was in the PSR.

[00:35:24] Speaker 02:
Right, so I don't think that that, again, I'm not really sure what more could be said on that particular narrow claim, simply because it was presented and Judge Howell considered it.

[00:35:37] Speaker 02:
She said, I'm not going to grant it.

[00:35:40] Speaker 02:
So I'm not here.

[00:35:42] Speaker 03:
She didn't hear from counsel any reasons not to grant it.

[00:35:46] Speaker 02:
So again, we have, we can see that under Rashad, these sort of very narrow sentencing related sort of mitigation type claims have to be remanded.

[00:35:59] Speaker 02:
Again, it's up to, I think the district court in the first instance to decide.

[00:36:03] Speaker 03:
It has to be remanded, but I just don't think that the way in which you phrased

[00:36:08] Speaker 03:
This part of your concession about remand it's the fourth item in your list on page 65 is captures the the breadth of the of the problem with regard to councils failure on Smith.

[00:36:26] Speaker 02:
All right.

[00:36:28] Speaker 02:
Well, again, so these claims, I think, should be, you know, they have to be remanded.

[00:36:36] Speaker 02:
And exactly what, you know, what additional procedures Judge Howell should undertake to develop the record, I think, is in the first instance left up to Judge Howell.

[00:36:50] Speaker 02:
And we will see, I suppose, what she says.

[00:36:52] Speaker 03:
Well, her decision about what procedures to follow or what results to reach is going to be informed, or at least the breadth of it is going to be informed by the terms of the remand.

[00:37:04] Speaker 03:
And I just think it's putting on blinders to talk simply about submitting documentation, but maybe we'll.

[00:37:15] Speaker 02:
I mean, certainly I don't think that, you know, in terms of whether or not she erred based on what she was given or that her reasoning in rejecting the Smith variants, as we've submitted in our brief, we don't see any court error as to whether or not counsel should have provided other information that would have changed her mind.

[00:37:39] Speaker 02:
That yes, we agree it has to be remanded and we will see, I suppose,

[00:37:44] Speaker 02:
what it is that Judge Howell believes would have happened if that information had been presented.

[00:37:52] Speaker 02:
If there are no further questions, we would respectfully submit that the judgment of the district court should be affirmed and a limited remand, as we described on page 65 of our brief, should be undertaken.

[00:38:02] Speaker 02:
Thank you.

[00:38:03] Speaker 01:
All right.

[00:38:04] Speaker 01:
Thank you, Mr. Coleman.

[00:38:06] Speaker 01:
Ms.

[00:38:06] Speaker 01:
Taylor, why don't you take two minutes?

[00:38:16] Speaker 00:
I apologize.

[00:38:17] Speaker 00:
I needed to unmute.

[00:38:18] Speaker 00:
Thank you, Your Honor.

[00:38:19] Speaker 00:
First, I want to say that, to be very clear, I am not unwilling to say that the defendant would not have otherwise gone to trial but for the ineffective assistance in this case.

[00:38:33] Speaker 00:
My discussion with Judge Garland was merely disputing the underlying premise that that is what needs to be shown.

[00:38:46] Speaker 00:
I think that it's, and if that is something that, there are cases, the case law that says that the operative prejudice is to the sentencing hearing in light of these guidelines errors, even in the plea context.

[00:39:03] Speaker 00:
I don't see why it would be any different, but I would ask if there's any, I think that such a ruling allowing ineffective assistance in the,

[00:39:16] Speaker 00:
in the calculation of guidelines and misrepresenting what the guidelines are to a particular defendant in the context of a plea and having that defendant be stuck with that plea, I think that that is a rule that certainly my office would not want in effect.

[00:39:44] Speaker 00:
I'm happy to submit additional briefing on that.

[00:39:48] Speaker 00:
But if the choice was whether Mr. Thomas would have gone to trial with effective assistance or if he pled guilty to everything that he was there for, he would have been sentenced for anyway.

[00:40:03] Speaker 00:
He ended up pleading guilty to everything.

[00:40:07] Speaker 00:
He got no benefit out of this plea.

[00:40:09] Speaker 00:
I would say then he would have gone to trial because he got no benefit from this plea.

[00:40:14] Speaker 03:
He got one count after a narrative that would have supported several.

[00:40:19] Speaker 00:
Your Honor, but one count is meaningless.

[00:40:21] Speaker 00:
All one count does is it lowers his court assessment from $100 for one count or $100 per count.

[00:40:31] Speaker 00:
One count is meaningless to a defendant except for that court assessment.

[00:40:36] Speaker 00:
I don't understand why the government keeps harping on this one count issue.

[00:40:44] Speaker 03:
It really is of no consequence.

[00:40:46] Speaker 03:
I'm not sure that it's important.

[00:40:48] Speaker 03:
It's simply a response to what you were saying.

[00:40:52] Speaker 03:
I think if I take your point correctly, you made it a moment ago, is that the question is whether, but for such assistance as he got,

[00:41:03] Speaker 03:
there was a reasonable probability that the sentence would have been different.

[00:41:07] Speaker 00:
That's what I believe the prejudice analysis is.

[00:41:11] Speaker 03:
I think that's correct.

[00:41:11] Speaker 03:
We'll go back to the books after argument.

[00:41:13] Speaker 00:
Yes.

[00:41:14] Speaker 00:
And I'm, again, happy.

[00:41:15] Speaker 00:
I think that this is an important, very important issue that would affect every client that we have.

[00:41:24] Speaker 00:
So to the extent that this is something that's going to control here, I think it's important that I respond to it.

[00:41:32] Speaker 04:
I also want to say with respect- Could you then submit something very quickly on the question of whether the Lee test does not apply or the issue is the calculation of sentencing guidelines in the plea?

[00:41:46] Speaker 00:
In the plea, yes.

[00:41:47] Speaker 00:
Yes, your honor.

[00:41:48] Speaker 00:
I also want to say that with respect to the invited error issue, we would not have raised these guidelines error arguments

[00:42:01] Speaker 00:
in light of the plea, were it not for the court's specific statement during the plea hearing that it was not relying on the plea.

[00:42:10] Speaker 00:
So I want to make that clear to the court.

[00:42:12] Speaker 00:
I understand that Lasley is out there.

[00:42:14] Speaker 00:
I believe that it was distinguishable because Lasley made it a point to say that the court relied on the stipulation, had no occasion to

[00:42:26] Speaker 00:
to pass upon it and that the government indeed did not proffer facts in support of the stipulation at the sentencing hearing so it was just taken as a given and and in that sense.

[00:42:39] Speaker 00:
No one had the opportunity to deal with the issue in this case, the court did say.

[00:42:44] Speaker 00:
essentially, regardless of what the parties are going to have agreed to, I have an independent obligation to review these issues.

[00:42:51] Speaker 04:
Isn't that what the plea agreement said, that the judge has an independent obligation and the judge always has an independent obligation.

[00:42:58] Speaker 00:
Yeah, the judge always has an independent obligation.

[00:43:01] Speaker 00:
But not only did she say that, but then she went step by step and did give reasons for the application.

[00:43:09] Speaker 00:
She did justify her application as opposed to what happened in Lasley.

[00:43:13] Speaker 00:
which, again, it was just taken as a given.

[00:43:15] Speaker 00:
No one discussed it.

[00:43:17] Speaker 00:
It was discussed both in the government's sentencing memorandum.

[00:43:21] Speaker 00:
There was a paragraph about vulnerable victims in the sentencing memorandum.

[00:43:29] Speaker 00:
And during the sentencing hearing, the judge went step by step and explained why she was applying the vulnerable victim enhancement.

[00:43:38] Speaker 00:
So again, that is why I brought up the issue I would not have brought it up, but for that information in this particular case that I believe distinguished the case from Lasley.

[00:43:51] Speaker 01:
All right, let me stop you if there are no other questions.

[00:43:55] Speaker 00:
There are no other questions.

[00:43:57] Speaker 00:
Or sorry, no, that doesn't make sense.

[00:43:59] Speaker 00:
This is from the judges.

[00:44:01] Speaker 00:
All right, no other questions.

[00:44:03] Speaker 00:
Because we haven't spoken about the other issues, I did want to say we are still asserting them

[00:44:08] Speaker 00:
The government made it seem like because I hadn't discussed them, I was giving them up.

[00:44:12] Speaker 00:
I'm not.

[00:44:13] Speaker 00:
We've clearly just run out of time.

[00:44:14] Speaker 00:
All right.

[00:44:15] Speaker 01:
We have that point.

[00:44:17] Speaker 01:
Let me ask my two colleagues if we can put a five-day schedule on this submission and give the same to Mr. Coleman.

[00:44:26] Speaker 01:
Of course.

[00:44:27] Speaker 01:
Yes, certainly.

[00:44:31] Speaker 01:
Okay.

[00:44:31] Speaker 01:
We're clear on that.

[00:44:31] Speaker 01:
All right.

[00:44:32] Speaker 01:
Your case is submitted.

[00:44:33] Speaker 01:
Thank you.

[00:44:33] Speaker 01:
Thank you so much.

[00:44:34] Speaker 00:
Thank you.