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Case number 20-3084, United States of America versus Frederick A. Miller, also known as Toby, a felon.

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Mr. Hart, you're a felon.

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Ms.

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Hart, you're a felon.

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Mr. Hart, I'm sorry to hear that.

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I'm sorry to hear that.

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I'm sorry to hear that.

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I'm sorry to hear that.

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I'm sorry to hear that.

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May I please report, my name is Dennis Hart.

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I'm here to speak on behalf of President Miller, again, and more importantly, for this Court of Appeals.

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A mural issue that I'd like to begin our presentation with a question about Amanda, maybe the first question the Court has to face, and perhaps the last question.

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The question is, the application of language is granted in the mandate of the rule to the facts of this case.

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The fortunate presence of the computer minister.

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I was able to attend to one of the times we were debating here in the 2018 opinion on this court.

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It appeared 17 times in the opinion.

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What was the word?

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Vacate.

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Oh, vacate.

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Or it would reverse and appear only three times.

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But when you're able to search that way, you can go to each vacate in the amendment and see what it refers to.

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At no time in the 2018 opinion did the panel on this form vacate his convictions.

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Failure of the government was a disreport to satisfy the enhancement of the world.

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They came in reverse for sometimes two different actions of it.

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We suggested in our agreement

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that that may be a test for whether or not it's the remedy.

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And when they pay for it, they can consider everything.

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First, we need to have to step back to remedy the problem that this was so I knew it was a symptom.

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We may have a second test to get to a little bit later, because we just have a newer main invitation to alternate.

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Secondly, we believe the government will, the government asserts that the sentencing leader in this tomorrow's case will back to zero after the 22nd.

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We don't believe it just.

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We believe our advantage will back two steps, two steps on the line, on the red line.

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I think it's going to shift significantly to support up in the town.

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But it applies to the government as well.

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We believe the district court should only go back to two steps for the enhanced, not back to zero, not start at zero at the ground floor.

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If the court agrees with the accountants, then the district court error is sentencing in 2021, 2020.

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Mr. Carr, the argument is that

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the enhancements, if the enhancements are invalid, then the sentencing on the RICO count, which previously the enhancements were like, because the enhancements were unsupportable, that makes movement relevant and only meant return of the variance.

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So why is the vacatur of the RICO count and the decision that the enhancements were unsupportable enough under this

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This is not new information.

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This is information from 2006-2007 trials for every one of us at all.

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It's not irrelevant because the mandate from this court was

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and fill your obligations for the weapons enhancement and for medicine.

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It was across the T's and not the I's directed by this court.

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Everyone thought the district court could do that.

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There really was no serious doubt that they could do it.

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Well, I can't speak for the government.

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We thought it was just not a big reason to do that in your 20-year tenure, but rather a roadmap for the court to do it right the next time.

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That certainly was the view of the government last year.

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Only the year before Mr. Miller was sentenced, the government maintained that it had enough evidence to support the weapons of the enemy and the enemy of the world.

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giving it to, I believe there were four assistants on the case.

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They submitted several to a sentencing memorandum.

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The first one, quite likely, all argued that there was sufficient evidence to support evidence.

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Imagine, they gave the opportunity to report about that.

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The court again got to know that they couldn't relax the two members of the jury.

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The three of them did not meet their firm proof.

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Thus, it's not newly, it's not relevant because we support the revenue district court across the teams.

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It could not cost the teams, and that's the failure of the truth by the government, other than the direct violation.

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I want to represent one of the patients to come inside of me in this 28-day letter.

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I think his name is Jim Emerson.

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In that, there is no justice.

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It's just in this 28-day letter submitted by the government earlier this week

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The drug trial in which the fear of enter enhancement was vacated by the court, I believe it was the court of search.

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They concluded that when you reset it, given a life sentence, with your awareness, that they could do that.

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They did not write up a force certificate manually because

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The government was not given the opportunity, according to the force of it, to argue for disparities in the first sentence he was going to shut.

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That's a very good illustration of what happened here.

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Remember that the adjunct was sentenced to 12 to over 2007 for lying to the president's manager about this.

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The government had no chance to argue against him.

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But he was re-sentenced after he was re-named by this court in 2016 to RICO, Wife in Prison.

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RICO does not give an advantage to their wife in prison that the CCE can't give.

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And as a result, that was the first opportunity to go to arguing there's a possibility for marriage, for whatever reason.

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They did not, since 2016, they've been calling and saying that this is a guideline state.

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So, Mr. Hart, is your position that the government, even if it might be replicative of its principle wrap here, he appeals minutes, that the government has to in order to preserve them, make all potential arguments

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for enhancement and or variance at the first opportunity, in other words, in this case, in 2016, where it was looking for a basis to go to the higher sentence.

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Unless the government rolls out every argument at that point, those arguments are practically worthless.

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No, I think they have to bring out their best case.

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Never agree with their best case.

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The guidelines that were in 2015

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They made that 2019 from a district court judge, and then finally agreed that they couldn't make the case.

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They made that bet.

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They have to lose.

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So they make their best case.

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If their best case fails, people, I mean, I think that is what I was asking when you answered no.

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If their best case fails, if they want me to fall back, they need to have articulated that in 2016.

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And I think the answer is that there isn't any question directly on that, either from this part or any other part.

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the best support for that position is what?

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Well, I'm saying the showcase that I just mentioned is an example where the court said, no, the government didn't have a chance to argue that because it was a mandatory.

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If they hadn't, it implies that if they had had a chance, then they would have violated the mandate if the court gave it a second time around.

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Before you sit down, let me just ask you to talk about life without parole, but my understanding is that there's no parole in the federal system anymore.

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Can you clarify what you were referring to?

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Life without parole is an easy way to abbreviate that.

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Prisoners are given certain benefits, such as good time, taking credits for good time, getting released early based on good time.

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Prisoners are sent to supervised release, which many people think is the same thing as the content.

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Without an end term, that has significant effects on them.

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In court and part and half of the United States, district court here do not highlight district court mandates in order to impose an overdue variance in recent scenes.

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Under REN, when we add three sentencing, district court may consider only such a new art

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as are made newly relevant, the court of appeal's decision was by reasoning or as it was thought.

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Here, Miller and Chigande, the first commander to defend the entire armed enhancement, the leader of organized enhancement, and the leader of the spirit of the center.

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Based on Miller's opinion, the prosecutor did not seek the enhancement because his work did not apply.

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The result of this court's decision in Miller 2 was a lower guidelines range, where the upper end was no longer like in prison.

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which made the government's request for the various 2020 re-sentencing completely wrong.

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The government had no reason to ask for a re-sentencing, either in the original 2017 re-sentencing, with a statutory mandatory minimum of $60,000 for life, nor did it have a reasonable or incentive to ask for a re-sentencing at the initial 2016 re-sentencing, but the district court had determined that the actual lifelines range would be considered

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I don't have a case supporting that position.

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Contrary to your finance argument that you don't have an obligation to make your alternative that states in the first time that you need to

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Yeah.

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Yeah.

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Yeah.

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Yeah.

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I apologize, I will try to speak.

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It makes all the difference in the world.

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I'm sorry?

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It makes all the difference in the world.

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You can hear me?

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Yes.

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Thank goodness I didn't have a Mac to make it work.

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But, um, the writing talks about reason for dissent.

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And what Alex would be saying is we have to make all our arguments, all our alternative arguments at the beginning

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initial sentencing or else we're going to release them all.

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That's simply not what Brent sent.

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And here, you know, after the 2016 sentencing, after the district court calculated the guidelines range, he turned to the party and he said, any arguments that counsel would like to make about whether the court should depart from the guidelines under the 3 to 35 degree factors all here.

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And that's a page 12 of the 2016 transcript.

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Clearly, at that point, the government had no incentive to ask for this experience under the 35-50-degree factor, and the upper end of the guidelines range was white.

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It would make it awkward to ask the court at that point, well, in case this gets reversed on appeal, these enhancements can make reverse on appeal, we would ask you to make alternative findings or something like that.

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But Ms.

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Park, that's the part of the transcript that you say actually seems to cut the other way because the district judge himself was contemplating that notwithstanding

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that the upper bound guidelines with the enhancements was like, you might not just want to make various arguments.

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And, and did it government didn't make various that variance arguments.

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I think when he's actually speaking, I think that was really addressed to account at that point.

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And when he said before, I think he means variance because he's addressing the 3553 factors, just a little stoke.

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But I think that was correct.

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Yeah.

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So I would suggest before that to ask the government to make the argument, alternative arguments, upwardly depart from life.

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They're upwardly varying from life.

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There's really no such thing.

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And that's basically the end of our whole math.

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I see the logic of this.

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But we're all lawyers.

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And we all know that.

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the primary grounds on which we start the benefits that we want might in fact be vulnerable.

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Where it is in the judgment of the government that the enhancements, for example, might be unsupported, why wouldn't it make sense to say the government needs to make its best judgment due

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belt and suspenders as lawyers often do and go home with that assurance.

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You know, what are the available grounds to meet up with young people?

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At what point do you say it was shakily enough that you should have made an objection?

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It seems like you're asking court to go back and want to see whether the opportunity had reached a certain point where the government should have done it.

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It seems to be saying he objected to the enhancements.

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So because he objected, the government at that point should have known this might be reversed on appeal and made their request for proper bearings then.

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I think the Biden standard is really workable.

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There's no raising or no incentive.

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The difficulty is this sort of infinite regret, you know, the second bite of the hour or the third bite of the hour.

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That, you know, the district court tries one thing because the government has no incentive to make sure that it's confident in the various grounds that it proposes for variants and or defensements because it knows always if there's a shortfall

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something else up and then something else.

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And here I understand it was the court that brought up the ultimate basis for the awkward learnings, more so than the government.

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But the difficulty from the defendant's perspective is it's an infinite movement, an infinite fight that we have to get the sentence right.

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And that may be, you know, that's a plausible system.

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The question is, is it still

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I mean, I think what Your Honor is talking about is no approach when you haven't been sentencing anything, you can ask any arguments or make any arguments for that any evidence, we put it at the origin of that.

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In some jurisdictions, you have a document.

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Purpose when the court documents was, the reason was the limit.

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It was kind of the only way to get first right, second right, third right.

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You can only hand-deal with cases that arise from the expression of the sentence resulting from court decision.

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That's essentially the heart of the grant.

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And they rely on a sentence certificate when they talk about adopting this weighty approach, this no-go approach.

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And that seems to me to strike a fairer program, because it doesn't seem fair to a lot of litigants to have to make every single turn of the argument at the original sentence.

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even as other parties may object to this medium.

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But it does say if you have strong reasons to make it right then and there, you should have.

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In this situation, where the upper end of the guidelines look like, government simply have no reason or incentive to ask for a variance going upward on alternative basis.

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Let me ask you about the

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the district judge's reliance on the Oguchi murder attempts.

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It's troubling that that occurred, at least appears to have occurred, we don't want to find it in this country, that it appears to have occurred before Mr. Miller's learning experience.

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How is it permissible for the district court to take into account conduct that is both

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quite notable, hard to see as just marginal, that was engaged with you before, and you're not even sure what the law is for.

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Yes, Your Honor.

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And I would say, well, just from here, there is not a case in which this court may incorporate that conduct into the guidelines calculation, where you have to find all this conduct, and particularly

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Here, he was doing a more broad assessment of the evidence, and under the 3553 factors.

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And this is the court that said in Ransom, the court did not require state findings of the guidelines imposed on the variance, and they could properly apply broader 3553-A considerations in the second edit, determining when and what were the variance reports.

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So this is what we're doing here.

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And when you look at the language of the state provisions, I think it's pretty much

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um, verbatim in, um, the, the transcript.

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Um, when he talks about Uluji, he said people like Mr. Uluji were previously injured as a result of the spirit and technical effect.

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So, you, you found a sample out.

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Do we have other, there were other similar acts that the Uluji, uh, attempted murder could have been a shorthand for during the time?

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I don't know if it's a shorthand for it.

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I know there were other murder samples.

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other murders, they did not, this report did not rely on them.

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So, I thought the argument you were making was that you referred to the Ohuchi attempted murder as

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Signifier of a kind of problem that this conspiracy visited on the public or participants or what have you.

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But then you just seem to be saying, well, that's not your point.

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No, no, that is my point.

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I mean, he was taking a broader view of the company.

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It didn't really matter how it was involved with the OJ murder.

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It was the fact that this is the nature of the conspiracy.

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He joined, we don't know at what point, he joined and he left.

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and the origin murder just kind of underscored the type of actions that this conspiracy was capable of.

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So are you saying there isn't another attempted murder or murder or violent assaults incident that you would point to after one of the nodes that would

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of which the Omichi assault in general would be just one.

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Just one example.

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If not.

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Your Honor, there are other murders, at least one other murder that I know was charged and there was evidence of crime.

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I do not know off the top of my head the time frame of when the murder took place.

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Prove it.

[00:23:08] Speaker 01:
I think that means, yeah, that was 2001 and that was an island.

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Uh, one of the most productive being an accessory after the fact, and he just put it on one.

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Um, so the point here, which is kind of a, the court was looking at the reaching murder.

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Um, the other conduct, um, not himself, the, that was, um, in the thing, you know,

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where he misused and tried to vacillate at the federal hall.

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And I don't think it's the right thing.

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I think the point of the court was trying to make was, you know, he's looking at an agent of defense and a world of harm.

[00:23:47] Speaker 02:
And, you know, in light of the attempted murder of Oruchi, Kevin was offered to kill Valentino Palmer on behalf of Bradford, who's not in isolation.

[00:24:00] Speaker 01:
Do you have record evidence?

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that Mr. Miller was even aware of the original murder attempt?

[00:24:06] Speaker 02:
I believe there is.

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I believe there is.

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So it wouldn't bear at all on what was Mr. Miller's intention, whether he was just trying to butter up Mr. Brownfield and talk tough, or whether he was the kind of person that might have actually followed through, which I thought was what you were suggesting.

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Yeah, I'm looking at the murder in a broader sense.

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It's not so much that he knew that it would happen, but just that this is an example.

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Eileen was very involved in the Rucci murder for sure.

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And Eileen was actually outside the parking lot when Helen went in to see Bradford, and actually Bradford wanted to talk to Eileen, so he's very much involved in what's going on in Bradford too.

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I think the point is,

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And we know what they did and what they did was murder people who didn't weigh their goals.

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And there was nothing that

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The threat that he made, offered to kill Dr. Plummer, was very real.

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And certainly, the results inferred that J. Bradford's life was real because he immediately started backtracking.

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And I'm not really questioning that in action.

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It's really deep.

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District Court reminds me of Ruchi a murder attempt if we were to think that this thing permissible for the district court to rely on that Ruchi murder attempt because if A is created, there was involvement in B, there's no evidence he's aware of it.

[00:25:49] Speaker 01:
What then?

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I think it's important to see

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we're looking at all these facts and um see the use of the private investigator potential that was strictly atypical and that was an incident that was repeated by the prosecutor at the 2007-17 2016-17 it was a consistent theme there are other factors from what's legally available to us we don't know

[00:26:20] Speaker 01:
whether the district court was even aware because, you know, the district court on its own came up with this motion and briefed it.

[00:26:30] Speaker 01:
Mr. Portanen responded to it.

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And he came up with, we don't even know if the district court was aware that this murder had happened, perhaps many months or a year or more before Mr. Muller was involved.

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Maybe it was central to his

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his consideration and he would never meant to rely on that if he knew there was no nexus to Mr. Moore.

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What do we do?

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Can we say, oh, harmless error and just affirm?

[00:26:59] Speaker 02:
Well, the mandate, we are not talking about procedural reasons.

[00:27:07] Speaker 02:
I think we've moved on to the reasonableness of the sentence, not the mandate.

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I was going to say the mandate issue is plain error counted in.

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ever oppose the upper variance based on the fact that it was.

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It supports things of the puzzle or the fact that he is problematic.

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I suppose the court can read him with construction to not consider that and a redo the calculus and whether that changes.

[00:27:39] Speaker 02:
But I don't really have a sense of the court.

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The court has stated

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When you're talking about the district court's consideration of 3553, there's a kind of evidence the court can look at.

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It's very broad.

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And here, this district court judge, after two very long files, he saw a witness,

[00:30:22] Speaker 04:
The situation you want to unseat having to figure out what you're discussing.

[00:30:27] Speaker 02:
And Your Honor, the Supreme Court decision here is already addressing that.

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I understand because for variances, the rule for no giving party to no give, that is the department, does not support, the Supreme Court does not extend the variance.

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And if the things were recognized, there are going to be instances on the head of the process.

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To the defendant, how do you see the government?

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But the solution did not extend the notice of requirement to their access.

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The solution is for parties to ask for agreements or make an objection on the record.

[00:31:02] Speaker 02:
And as far as I can see in the record, I don't believe Mr. Cohen objected on these grants.

[00:31:10] Speaker 02:
And this court came nightly, I think, at this time point.

[00:31:14] Speaker 02:
Um, there is a court, this is your proposed upward variant, upward variant, um, that was not noticeably given, but the court said he could have asked for continuance, or he could have objected to the factual, to what he believed were factual errors, but he did not do that.

[00:31:31] Speaker 01:
My, my final question is, can you pass light on this life without parole?

[00:31:36] Speaker 02:
I just, I just don't understand it.

[00:31:38] Speaker 02:
Life without parole, parole would all just be life without parole.

[00:31:43] Speaker 02:
So life means life.

[00:31:44] Speaker 02:
like that whole I mean, there's no way to get out for like, it's essentially minus any of us.

[00:31:53] Speaker 02:
All of us involved.

[00:31:56] Speaker 02:
Is there a guideline to like, that's numerical?

[00:31:59] Speaker 02:
Something like that?

[00:32:01] Speaker 02:
I mean, Mr. Sheppard, quote, said, said, Mr. Charney made the

[00:32:11] Speaker 02:
171 only.

[00:32:13] Speaker 02:
I'm not sure when that I don't think that amount of time that I'm going to be able to 171.

[00:32:21] Speaker 02:
I don't think we get I think that's a way to quantify what likelihood means.

[00:32:29] Speaker 02:
I'm not sure.

[00:32:30] Speaker 02:
That was my understanding.

[00:32:32] Speaker 02:
It's not my understanding that you reach 179.

[00:32:35] Speaker 02:
That people like to get one more understanding.

[00:32:40] Speaker 02:
as a light sentence, perhaps the district judge would be able to determine a light sentence.

[00:32:46] Speaker 02:
Obviously, that's it.

[00:32:48] Speaker 02:
Thank you for your clarification.

[00:32:53] Speaker 02:
If there are no further questions, we would ask that the judge answer the district judge's question.

[00:33:01] Speaker ?:
Thank you very much.

[00:33:08] Speaker 02:
Council had no time remaining.

[00:33:17] Speaker 02:
The 2018 Miller opinion is not disagreeing with the enhancement.

[00:33:22] Speaker 02:
In fact, it went out of its way to say, we don't disagree with the enhancements.

[00:33:28] Speaker 02:
It went out of its way to say it doesn't cast any doubt on the evidence that you brought.

[00:33:34] Speaker 02:
The only thing the 2018 memorandum did was held a judge to cross the G's and dot the N's, and that to be sufficient for this court.

[00:33:45] Speaker 02:
It was not the decision of this court that the district court could not make that determination.

[00:33:54] Speaker 02:
The decision was not to cross the T and not to doubt the I's was made by the district court, not by the 2018 New Oregon.

[00:34:02] Speaker 02:
The district court is what made that decision that prevented its use to give the employment under the guidelines.

[00:34:09] Speaker 02:
The second point I'd like to make is

[00:34:30] Speaker 02:
We would vigorously disagree with respectful counsel's description of this was a case where there were a number of people who stood in there with it.

[00:34:43] Speaker 02:
That was their characterization of what the difference of our thought it was doing.

[00:34:49] Speaker 02:
For the Orochi murder, for example, there is no evidence of that in the trial.

[00:34:54] Speaker 02:
Every violent act that Mr. Willoughby was doing was acquittal at trial.

[00:34:59] Speaker 02:
That's a broad-order generalization.

[00:35:06] Speaker 02:
And the question was, the district board had seen the evidence, and they knew best what to do.

[00:35:13] Speaker 00:
When you say there was he's been in every violent act, what are you referring to?

[00:35:19] Speaker 02:
Well, there was some assaults.

[00:35:21] Speaker 02:
They were involved in a legal predicate act.

[00:35:25] Speaker 02:
There may have been something in the conspiracy counts, and I wasn't proud of him, but none of them came up as part of the appeal because he was acquitted here.

[00:35:36] Speaker 01:
But as you know, in sentencing, acquitted conduct can be considered.

[00:35:41] Speaker 02:
I'm sorry, I didn't mean to interrupt, but yes, I did.

[00:35:45] Speaker 02:
But that's why he was not involved in the sentencing originally, because it was never brought up by the government in, say, 2016, where we believe it should have been.

[00:35:54] Speaker 02:
The final point I'd like to make is that I don't think this court will find an increase in any case in this circuit where there's been a variance of the life without the law.

[00:36:07] Speaker 02:
And the reason for that is because district courts in this circuit have never dealt with it.

[00:36:13] Speaker 02:
And there's a reason for that, because it's the most extreme measure a district court can do, and it requires the most extreme case that's justified

[00:36:24] Speaker 02:
by the district court to impose that penalty and go for the misdemeanors that shouldn't have found that to be the case.

[00:36:35] Speaker 02:
I'm happy to hear that.

[00:36:38] Speaker 02:
You were appointed by the court to represent Mr. Mill.

[00:36:42] Speaker 02:
We thank you for your assistance.

[00:36:43] Speaker 02:
Thank you.