[00:00:00] Speaker 00: Case number 20-3025 et al. [00:00:03] Speaker 00: United States of America versus Arnold Jackson at balance. [00:00:06] Speaker 00: Ms. [00:00:06] Speaker 00: Hernandez for the at balance. [00:00:08] Speaker 00: Mr. Lenners for the FOA. [00:00:11] Speaker 03: Good morning, Ms. [00:00:11] Speaker 03: Hernandez. [00:00:12] Speaker 03: Good morning, Your Honors. [00:00:14] Speaker 03: May I please the court? [00:00:15] Speaker 03: My name is Carmen Hernandez. [00:00:17] Speaker 03: I've been appointed to represent Arnold Jackson, who pleaded guilty below before a district court judge to distribution of drugs. [00:00:28] Speaker 03: There are two issues or there are three separate cases. [00:00:32] Speaker 03: One is a direct appeal of his sentence. [00:00:35] Speaker 03: And then there was an, I filed on his behalf a motion for compassionate release. [00:00:39] Speaker 03: And a year later, he filed a second motion for compassionate release pro se. [00:00:45] Speaker 03: On the direct appeal, there's really only a single issue. [00:00:48] Speaker 03: And that was whether the court erred in imposing a sentence consecutive to a yet to be imposed sentence in the Western District of Virginia. [00:00:58] Speaker 03: for supervised release violation. [00:01:01] Speaker 01: Was that raised with the district court? [00:01:07] Speaker 03: I represented him below. [00:01:08] Speaker 03: I requested the judge to impose a sentence concurrently. [00:01:13] Speaker 03: And the judge denied it and imposed sentence consecutively. [00:01:17] Speaker 01: So is this subject plain error review or ordinary review? [00:01:23] Speaker 03: The government argues that it's [00:01:26] Speaker 03: subject to plain error review, Mr. Jackson argues that it should be reviewed de novo because it is an analysis of 18 USC 3584, which provides that a federal court may impose a sentence concurrently or consecutively with respect to a sentence that has already been imposed. [00:01:53] Speaker 01: That would make it perhaps an error. [00:01:56] Speaker 01: What I'm wondering, is it a plain error review? [00:01:59] Speaker 03: I did not raise the 3584. [00:02:01] Speaker 03: I did not mention 3584 when I asked the court to impose a sentence. [00:02:09] Speaker 03: So to that extent, Your Honor, that's what the court is getting at. [00:02:13] Speaker 03: Yes, that particular, the provision 3584 was not addressed to the district court at all. [00:02:21] Speaker 03: The argument nonetheless is that the statute is clear. [00:02:24] Speaker 03: I think there's three circuits that have held that [00:02:26] Speaker 03: a federal court cannot impose a sentence consecutively to another federal sentence that has yet to be imposed. [00:02:37] Speaker 00: Ms. [00:02:37] Speaker 00: Hernandez, is there anything to the argument that to the extent that there was error, it was almost invited by your argument [00:02:51] Speaker 00: that the district court should run the sentences concurrently. [00:02:56] Speaker 00: It seems to me an argument that a district court should exercise its discretion to run a sentence concurrently implies that the district court has the authority to run it consecutively. [00:03:10] Speaker 03: Your honor, I would say no. [00:03:11] Speaker 03: The analysis is the court can do whatever it wants with its own sentence. [00:03:16] Speaker 03: That is, if it runs a concurrent, then it's only controlling [00:03:19] Speaker 03: the sentence that Judge McFadden imposed, whereas if it runs it consecutively, it impinges on the right of the second judge who has yet to impose a sentence. [00:03:29] Speaker 03: So the argument is no, that there's a difference between running a sentence concurrently versus consecutively. [00:03:37] Speaker 03: I know it's almost a little bit counterintuitive. [00:03:40] Speaker 03: I would, the court's question, if you have the authority to run it concurrently, why not consecutively? [00:03:47] Speaker 03: But the analysis is that, [00:03:49] Speaker 03: you're then impinging on the second court, and you also don't have all the 3553A factors at your disposal. [00:03:58] Speaker 03: With respect to the... Yes, Your Honor. [00:04:03] Speaker 03: How do we get around the waiver? [00:04:07] Speaker 03: So the argument is, Your Honor, that the appeal wave [00:04:11] Speaker 03: Rule 11B1N requires the district court to address the defendant and discuss the appeal waiver. [00:04:18] Speaker 03: In this case, the appeal waiver, the address, Judge McFadden only referred to, he was waiving his right to appeal the conviction and never addressed [00:04:30] Speaker 03: the sentence, how it was imposed. [00:04:33] Speaker 03: Also, unfortunately, the appeal waiver was a standard appeal waiver and we had a C plea in this case. [00:04:41] Speaker 03: A C plea is a type of plea where the parties agree on a disposition and the court can either accept the plea and impose that sentence or can reject the plea. [00:04:55] Speaker 03: And the appeal waiver really was not [00:04:59] Speaker 03: adequately addressed, adequately directed at a C plea. [00:05:04] Speaker 03: And when the court asked Mr. Jackson's counsel to address the appeal weight, first the court addressed and said only the conviction is what's waived by the appeal. [00:05:19] Speaker 03: And then when asked counsel to address that, [00:05:24] Speaker 03: I truncated my sentence because as I read the appeal waiver, it was inconsistent with the C plea. [00:05:31] Speaker 03: So neither my addition or the prosecutor's statements with respect to appeal waiver clarified whatever lack of clarity was in the district court's discussion of the appeal waiver. [00:05:45] Speaker 03: And this court in other instances has held where the appeal waiver is not precise, that it doesn't waive the appeal. [00:05:55] Speaker 00: I was going to ask, Ms. [00:05:59] Speaker 00: Hernandez, maybe I'm misunderstood. [00:06:01] Speaker 00: Did you say that the district judge said the appeal waiver only applies to the conviction, or is it just that the district court didn't expressly say that it would also apply to the sentence? [00:06:18] Speaker 03: I guess it's a little bit of both. [00:06:20] Speaker 03: When he addressed the appeal waiver, he said this waiver [00:06:24] Speaker 03: you're waiving your right to appeal the conviction. [00:06:27] Speaker 03: That was the way he explained the appeal waiver. [00:06:29] Speaker 03: He never gave any further explanation. [00:06:33] Speaker 03: And 11B1N really required him to be more ample. [00:06:37] Speaker 03: And often, as the district court did in this case, they asked the parties, the council for either side to go on and further explain. [00:06:47] Speaker 03: In this instance, neither council, neither the government nor me nor I [00:06:54] Speaker 03: really clarified that it applied, that it was a more ample waiver. [00:07:00] Speaker 03: I wanted to go on to the compassionate release issues. [00:07:05] Speaker 03: So on his behalf, right after sentencing, I filed a motion for compassionate release. [00:07:10] Speaker 03: And then a year after the judgment, once he was transferred to the Bureau of Prisons, Mr. Jackson Prose filed a motion for compassionate release. [00:07:21] Speaker 03: He also filed, or his attorney, a public defender, federal public defender in the Western District of Virginia, had also filed a compassionate release motion right after he was sentenced on his violation of supervised release, which took place shortly after the initial sentence in this case. [00:07:38] Speaker 03: That judge, the chief judge in the Western District of Virginia, granted compassionate release. [00:07:45] Speaker 03: Judge McFadden denied it, so you have these two conflicting decisions. [00:07:51] Speaker 03: To begin with, nobody, I think all courts, all the district courts have acknowledged that Mr. Jackson suffers from, is a high risk individual in terms of COVID, type two diabetes, asthma, sleep apnea, and obesity. [00:08:08] Speaker 03: The only issue for judgment fadness whether, and he founded both in the original compassionate release motion and the second one, the issue was whether Mr. [00:08:21] Speaker 03: I think I'm running into my rebuttal time, but the only issue is whether Judge McFadden found that he's a risk of dangerousness because he had a prior conviction, a fairly serious conviction about over 10 years ago. [00:08:35] Speaker 03: He was found to be a leader and organizer in that conviction, but the current conviction was a small street level drug trafficking offense. [00:08:45] Speaker 03: He tried to cooperate. [00:08:47] Speaker 03: There were some problems with the cooperation, not from his part, but from the [00:08:51] Speaker 03: prosecutor's side. [00:08:52] Speaker 03: And under Munchel, under this court's Munchel opinion, the court really should look not just at, should look at the, the dangerousness with respect to the current situation, should look at the nature of the threat and the resources and capabilities of the defendant. [00:09:11] Speaker 03: And I would submit to the court that that's not what Judge McFadden did. [00:09:15] Speaker 03: He really kept on looking backwards to who this person was rather than currently. [00:09:20] Speaker 03: The argument is he could be held in home incarceration 24 seven with electronic home monitoring at his mother's home and that he applied dangerousness improperly. [00:09:31] Speaker 03: And therefore he was peered in his compassionate release decision. [00:09:37] Speaker 03: Thank you, Your Honor. [00:09:39] Speaker 00: My colleagues have any further questions? [00:09:43] Speaker 02: We'll hear from Mr. Hunters. [00:09:46] Speaker 02: Thank you, Your Honor. [00:09:47] Speaker 02: Good morning and may it please the court, Dan Lenners for the United States. [00:09:51] Speaker 02: The only issue that properly before the court in this appeal is the trial courts denial of Mr Jackson's first compassionate release motion. [00:10:02] Speaker 02: Nothing that the defendant has argued on appeal establishes that the district court abused its broad discretion in denying that motion. [00:10:10] Speaker 02: As for the sentencing appeal that is waived by the plea agreement and, if not, should be reviewed for plain error. [00:10:20] Speaker 02: As to the waiver, I would just like to clarify the record. [00:10:25] Speaker 02: The district court went through the standard plea colloquy with the defendant [00:10:30] Speaker 02: during which it described the fact that by pleading guilty, he was giving up his right to appeal his conviction and that there would be no trial. [00:10:39] Speaker 02: That's on page 36 of the Joint Appendix. [00:10:43] Speaker 02: That was not a discussion of the plea agreement or the waiver provision in the plea agreement. [00:10:48] Speaker 02: It was just the standard plea colloquy language that by pleading guilty, you have no trial and no appeal. [00:10:54] Speaker 02: Later during the plea colloquy, the district court asked Mr. Hernandez, or the parties, to describe the plea agreement. [00:11:01] Speaker 02: And Ms. [00:11:02] Speaker 02: Hernandez described, among other things, the appeal waiver in which she correctly noted that the defendant waived his right to appeal unless the sentence was above the statutory maximum or above the guidelines calculated by the court. [00:11:18] Speaker 02: that is accurate. [00:11:19] Speaker 02: Neither of those things is at issue here. [00:11:21] Speaker 02: And thus, this court's decision in Han Li, which makes clear that even if the district court itself does not discuss the appeal waiver, the record as a whole can make clear that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, applies here. [00:11:38] Speaker 02: And thus, any error was harmless as to the district court failure itself to describe the appeal waiver and the plea agreement. [00:11:45] Speaker 02: If this court disagreed and believed that somehow the waiver did not cover the situation, it should review for plain error the argument on appeal that the additional court lacked any legal authority to impose a consecutive sentence in anticipation of the sentence the defendant would receive for his violation of supervised release. [00:12:09] Speaker 02: as this court made clear in ABNE. [00:12:12] Speaker 02: There are circumstances in which requesting action by the district court does not appropriately preserve an objection to the district court taking a different action, that it's a context-specific analysis. [00:12:30] Speaker 02: And you look at the context to understand whether the defendant was making clear to the district court that he was arguing [00:12:38] Speaker 02: preserving an objection to an alternative course of action. [00:12:41] Speaker 02: As Judge Walker noted, although we don't make an invited error argument, it has that feel here that by asking the district court to recommend a concurrent sentence, the defendant almost invited the error when the district court determined otherwise. [00:12:56] Speaker 02: The argument on appeal is that the district court had no authority to impose either a concurrent or a consecutive sentence. [00:13:03] Speaker 02: that either approach is reserved. [00:13:06] Speaker 01: If the defense attorney is unsure as to whether the judge has authority to enter the consecutive sentence, wouldn't it have been very appropriate to go ahead and ask for concurrence just in case? [00:13:23] Speaker 02: I don't believe I think I if the judge has no authority or if the defense attorney is unclear, it should be reserved for the second judge. [00:13:30] Speaker 02: And so the defense attorney would be better off saying nothing. [00:13:33] Speaker 01: Have you ever been a defense attorney? [00:13:39] Speaker 02: No, your honor. [00:13:40] Speaker 01: No, I cannot imagine. [00:13:43] Speaker 01: not asking for a concurrent sentence if there are even a remote possibility of a judge entering something other than a concurrent sentence. [00:13:53] Speaker 01: I don't see how that in any way implies that you're conceding the authority of the judge to issue the consecutive sentence. [00:14:09] Speaker 02: As I said, Your Honor, we're not making an invited error argument here. [00:14:13] Speaker 02: However, nothing that the defense counsel did alerted the judge to the argument on appeal. [00:14:21] Speaker 01: Right. [00:14:22] Speaker 01: It is plain error based on that. [00:14:24] Speaker 01: But the notion that I'm having a little trouble with the notion that by asking for a concurrence, you're conceding the authority of the judge to go consecutive. [00:14:32] Speaker 01: That doesn't seem to fit in. [00:14:35] Speaker 01: It seemed like a round peg in a square hole. [00:14:38] Speaker 02: Yes, Your Honor. [00:14:39] Speaker 02: We're not making an invited error argument. [00:14:42] Speaker 02: We are arguing that it's waived, but if not waived, it's reviewed. [00:14:47] Speaker 00: Can I ask about the compassionate release notion, and in particular, the first one? [00:14:51] Speaker 00: I think that your brief suggests the standard of review may be abusive discretion. [00:15:01] Speaker 00: I'm wondering why it's not plain air review for this reason. [00:15:07] Speaker 00: the defense attorney here, like many defense attorneys and like many district judges at the time that this all happened, did not suggest that the policy statement pre-Criminal Justice Reform, pre-First Step Act, did not suggest that that policy statement no longer applies. [00:15:33] Speaker 00: And so if we're reviewing the question of whether the policy statement does or does not apply. [00:15:39] Speaker 00: With regard to that first compassionate release motion. [00:15:44] Speaker 00: Shouldn't we review that under plein air review. [00:15:49] Speaker 02: I believe this court's decision in long rejects effectively decides the issue your honor the in long the court found that the district court had improperly applied the policy statement, and then reviewed the case for an abuse of discretion and it discussed that standard and why it's appropriate. [00:16:09] Speaker 02: Even if plain error applied, Your Honor, the government would concede that any error in applying the policy statement was plain because this Court's review for plain errors at the time of appeal, not at the time the judicial court acted. [00:16:26] Speaker 02: And so we would concede that any error in applying the policy statement was error and is plain as of today. [00:16:35] Speaker 02: In any event, any error is harmless, whether it's an abusive discretion standard, plain error or preserved error, because the district court made clear first that it considered Mr. Jackson's health conditions to be potentially extraordinary circumstances, notwithstanding the policy statement, [00:16:55] Speaker 02: And second, that it considered Mr. Jackson's dangerousness as one of the 3553A factors, which it identified as a sufficient independent basis for denying compassionate release. [00:17:09] Speaker 02: And so it did not, as the District Court and Long had, solely rely on the dangerousness part of the policy statement to reject the compassionate release motion. [00:17:19] Speaker 02: And thus, there is no long error here, regardless of the standard of review. [00:17:25] Speaker 02: If there are no further questions, we would ask that the judgments of the district court be affirmed. [00:17:30] Speaker 00: Walker, Justin Tell, any further questions? [00:17:34] Speaker 00: Thank you. [00:17:36] Speaker 00: We'll give you an additional two minutes. [00:17:41] Speaker 03: Thank you, Your Honor. [00:17:43] Speaker 03: On the waiver issue, Rule 11 explicitly provides that a district court must address the 11B1 capital N. [00:17:52] Speaker 03: requires the district court to address the defendant and inform him, quote, of the terms of any plea agreement provision waiving the right to appeal or to collaterally attack the sentence. [00:18:03] Speaker 03: So the discussion that the district judge had with the defendant was not some regular plea colloquy, as the government argues. [00:18:13] Speaker 03: It is part of the requirement of Rule 11 that he addressed the defendant on this issue. [00:18:21] Speaker 03: And so the argument is by failing to properly discuss the extent of the appeal waiver. [00:18:30] Speaker 03: And I don't think the appeal waiver addresses this issue, whether a sentence should be collateral or consecutive. [00:18:37] Speaker 03: Only the appeal waiver in the plea agreement address the term and the manner in which it's imposed. [00:18:48] Speaker 03: both those phrases are terms of art, which have been defined by this court and the Supreme Court and don't apply to whether a sentence is concurrent or consecutive. [00:18:57] Speaker 03: With respect to dangerousness, the district court's decision on dangerousness is inconsistent with this court's opinion in Munchal, with the pretrial release decision in Munchal, which addresses the nature, how a district court is supposed to consider dangerousness [00:19:17] Speaker 03: when it's looking at a defendant. [00:19:19] Speaker 03: And in this case, the district court is looking backwards and not looking forward to what exactly the defendant can do if he were to be released. [00:19:29] Speaker 03: And also the district court didn't take into account post-defense rehabilitation, his attempts, his drug, he's been, he has been drug free for two years and that had been one of the factors that had [00:19:41] Speaker 03: propelled him to deal drugs again. [00:19:44] Speaker 03: Thank you, Your Honors. [00:19:46] Speaker 00: Thank you. [00:19:47] Speaker 00: The case is subpoenaed. [00:19:47] Speaker 03: Thank you, Your Honor.