[00:00:00] Speaker 04:
Case number 19-3080, United States of America versus Johnny Carlin as a balance.

[00:00:06] Speaker 04:
Mr. McIntosh for the appellate, Mr. McGovern for the appellate.

[00:00:22] Speaker 02:
Good morning, Mr. McIntosh.

[00:00:25] Speaker 02:
Good morning, Your Honor.

[00:00:29] Speaker 02:
I will start my argument.

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May it please the court.

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Appellant has presented four issues for this court.

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In order to preserve time, I'd like to start with arguments one,

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which concerns the application of 4B1.5 to enhance Mr. Lanier's sentence and argument four, which whether or not the sentence was unreasonable because of a guideline calculation errors.

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If time permits, your honor, I will discuss arguments two and three.

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Now,

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This case, when we talk about whether there was error in applying 4B1.5 to the sentence and whether or not the sentence was reasonable, there are four questions which, when reviewed, will provide an answer to these questions.

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The first question is, did trial counsel waive appellant's right to assert the doctrine of US v. Wicker Link

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that the prior conviction must be compared to the instance offense before the 4B1.5 application.

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Two, whether the case presents grounds for plain error review by this court.

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Three, what is the government's burden to produce sufficient reliable evidence when it seeks to employ 4B1.5?

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And finally, whether there was error in the application of 4B1.5.

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The first thing I wanna talk about is trial counsel's possible waiver.

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That's the argument the government makes.

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There was no waiver.

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As stated in appellant's reply brief, the plea agreement allowed him to contest the criminal history in the plea.

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The judge in the guilty plea colloquy noted that he had to write to challenge

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the criminal history.

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Is that just before the district court?

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Yes, the district court.

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We didn't preserve the right to contest that appeal.

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What I am saying is that the plea agreement allowed the appellant to contest the criminal history.

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And in addition to the plea agreement, you have that noted by the trial judge and the guilty plea that he had a right to contest the criminal history.

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Then we go on before sentencing, defense counsel sentencing memorandum specifically stated that the 4B1.5 application

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made it greater than necessary to achieve the goals of sentencing per the sentencing reform act.

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If you didn't have this 2002 prior conviction, he would ask for a downward variance, okay?

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Then in the sentencing memorandum, council went on to distinguish the instant crime, the 1591 violation,

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as a computer related communication.

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He said it was different from the prior conviction for statutory rape.

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And I think that's playing on his face.

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At the sentencing hearing, counsel again alerted the trial court to the fact that the inter defense was different than the prior sex conviction.

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And at sentencing,

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Again, he asked for- Did trial counsel argue that it was different so that it could not be a predicate offense for the sentencing enhancement?

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No, he did not.

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No, he did not.

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Did counsel have done that?

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You haven't argued here that counsel should have done that.

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I'm curious as to why.

[00:04:36] Speaker 02:
Well, I do not know what was in the minds of trial counsel.

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I agree with your honor that he did not argue the wickling

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basis.

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I see whether you think he should have, that it was not a proper predicate offense because the elements of carnal knowledge under Virginia law are not the same, in fact, are broader than the elements for the federal offense.

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Looking at the law, yes, he should have, yes.

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But you didn't raise any ineffective assistance to counsel.

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Argument on that in front.

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I did not raise that, Your Honor, because in terms of looking

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at the facts of the case, I don't think the government has met its burden anyway.

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That's a separate question of whether council, when someone's trying to apply an enhancement based on a prior conviction, should check and see whether that prior conviction is a proper predicate for the enhancement.

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And had they done so here, it would not have been, at least under a categorical analysis.

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You are correct, Your Honor.

[00:05:44] Speaker 04:
You are correct.

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So why was that?

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I'm curious then again, since you're agreeing with this, why you didn't raise ineffective assistance of counsel because had they made that argument, they could have prevented the predicate offense from even counting, perhaps.

[00:06:00] Speaker 02:
I did not raise it because we have on the record

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the right of the defendant there to raise these issues.

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And we do have trial counsel alerting the court to the fact that the sentences were different.

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Now, the court is correct that he should have specifically

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argued the Wicker Link doctrine.

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He did not do that, but he did alert the court to the differences in the statutes and that goes to the Wicker Link doctrine.

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Under Wicker Link, the court advises that when you're trying to assess whether or not trial counsel waived, that the objection was fully apprised the court of the grounds for

[00:07:02] Speaker 02:
I'm sorry, that trial counsel should fully apprise the court of all the grounds so that the court can take it into consideration.

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If you take a narrow view of what occurred in the lower court, you could say, yes, that's ineffective.

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If you take a more reasonable view,

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because he did alert the court to the difference in the statutes, I would say that's not ineffective for citizens of council.

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It just depends upon the way that it is interpreted, your honor.

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If this court finds that trial counsel by not,

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fully, I guess, fleshing out the Wicker Link doctrine was ineffective.

[00:07:57] Speaker 04:
Well, you haven't raised that issue, so I don't know how we could... You haven't presented that issue to us, so I don't know how you think we could reach out and decide it.

[00:08:06] Speaker 04:
That's what I'm asking you is why that issue isn't here, since you've noted in your brief here that the attorney raised, you know, pointed out

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the some distinctions between the two offenses, but missed the legally relevant argument all together and didn't present it to the court and that is that it's not it doesn't statutorily qualify as a predicate offense.

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Seems rather

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significant omission.

[00:08:37] Speaker 02:
I see exactly what you're saying.

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And the only way I can honestly respond to Your Honor, as I said, it depends upon how you interpret what he did.

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If it's a strict construction.

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But you told me he didn't raise it.

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There's no interpretation there.

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You don't see it raised.

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We don't see it raised.

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I don't know what interpretation that requires.

[00:09:01] Speaker 02:
OK, well, I understand, Your Honor.

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I'm just trying to make the point.

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that in a bare bones way, he raised it.

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He didn't fully flesh it out.

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He didn't object to the guidelines calculation.

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I don't know how we can say he raised it, unless I'm misremembering.

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I recall them agreeing repeatedly to the guidelines calculation, unless you tell me I'm mistaken.

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As a practical matter, your honor, I guess is correct, but that he did not object in a sentencing memorandum.

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But what I am just trying to say in his

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Sentencing memorandum, he pointed out the differences and in the guilty plea and in the sentencing hearing, he pointed out the differences.

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And that may be sufficient to alert the court to the argument that we're making here.

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If not, if not, then this court has the opportunity to exercise its discretion

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and do a plain error analysis of what occurred at the lower court.

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And for plain error, as the court well knows, you need error.

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Error was clear and obvious.

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It affected substantial rights, and it may have affected the integrity, fairness, and reputation of the judicial system.

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Here, he would have gotten 188 months, as opposed to

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235 he got, I think that's about a four or five year difference.

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So that did affect his substantial rights.

[00:10:57] Speaker 03:
And- Mr. McIntosh, you're over time.

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Unless either of my colleagues have any further questions, we'll hear from the government.

[00:11:05] Speaker 01:
Okay.

[00:11:05] Speaker 01:
Not from me.

[00:11:08] Speaker 00:
Okay.

[00:11:12] Speaker 00:
May I please the court?

[00:11:13] Speaker 00:
Michael McGovern on behalf of Appellee of the United States.

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Appellant sentencing error claims fall squarely within the scope of the appeal waiver contained in the party's negotiated plea agreement and therefore this court should dismiss appellants appeal and the negotiated plea agreement appellant waived his right to appeal his sentence.

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under unambiguous and specific language that did not allow him to appeal either his sentence or the manner in which that sentence was determined, subject to only two specific exceptions, neither of which are applicable here.

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He was permitted to appeal his sentence if it was above the statutory minimum, or he was permitted to appeal his sentence if it was above the statutory guidelines range determined by the court.

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Because neither of those were present here, the unambiguous language of the appeal waiver within the plea hearing should be upheld, and this court should dismiss his claims as it did under both Adams and Lee.

[00:12:18] Speaker 01:
Mr. McGovern, do you think trial counsel was ineffective?

[00:12:22] Speaker 00:
Your Honour, ineffectiveness has not been presented here and there are important legal issues that would have to be explored prior to a determination that legal counsel was ineffective.

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For purposes of argument, Appellant has assumed that Wickerink's categorical approach applies.

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It's unclear based on this record if one could even

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analyze this case under Wicker Inc.

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based on the present record because there is no indication of what statute he was convicted of in Virginia in the record.

[00:12:55] Speaker 04:
There absolutely is.

[00:12:56] Speaker 04:
It's actually in your supplemental appendix, page 14, conviction for carnal knowledge of a child 13 to 15 years of age, which is very easy to find right in the Virginia statutes.

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And the definition is

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much broader than the federal definition.

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If nobody knows what he's convicted of, on what basis would a prosecutor assume that it's a predicate offense?

[00:13:23] Speaker 00:
The predicate offense was described within the pre-sentence report.

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And in that description, the description contained facts which do satisfy a federal crime.

[00:13:33] Speaker 04:
But you know that's not how it works.

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That's not how it works.

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We have to look at the two statutes.

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if one applies the categorical approach, but it's not a legal conclusion, nor has every circuit been on the same page that necessarily a categorical approach must apply.

[00:13:50] Speaker 04:
Nobody knew what the offense was.

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Would not it be incumbent upon the government to determine what he was actually convicted of rather than sort of a loosey goosey

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description, and then the government would have to take a position on whether or apply it's already established position on whether the categorical analysis applies before the government would even argue for this isn't that I mean the government doesn't just sort of go someone said something and that's good enough for a predicate offense do that.

[00:14:18] Speaker 00:
Respectfully, that's if the categorical approach applies here, which has not been determined by this court and it hasn't been determined by multiple other circuits.

[00:14:26] Speaker 04:
What I will note is this issue... Excuse me.

[00:14:29] Speaker 04:
I'm sorry.

[00:14:29] Speaker 04:
Just slow down for a second, please.

[00:14:31] Speaker 04:
I have a basic question.

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What is the United States government's position on whether the categorical approach applies under this sentencing enhancement?

[00:14:41] Speaker 00:
So Your Honor, the government hasn't taken a position in this court, and it's not necessary to do so.

[00:14:48] Speaker 04:
What has it taken in all the other circuits?

[00:14:50] Speaker 00:
Your Honor, in the Third Circuit, it has sought for a fact-based approach in the case of Dahl.

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And in fact, there have been circuits that have applied a fact-based approach.

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Even the Eighth Circuit.

[00:15:03] Speaker 04:
I know the Eleventh Circuit did sort of a half and half.

[00:15:07] Speaker 00:
Correct, Your Honor, I was referring to the Eighth Circuit.

[00:15:10] Speaker 00:
Also, the Eighth Circuit, if you read the Lockwood decision, in fact, the approach that it applies, and I'll note that Appellant does cite to Jeffries, which relies upon Lockwood, so it is presented here, and I'm going outside of the legal

[00:15:24] Speaker 00:
arguments that are within this actual case as none of this was presented.

[00:15:28] Speaker 04:
I fully understand that and I'm just I'm just trying to understand because you're the one who said the government applied it even though we didn't know what the conviction was for which was what obviously raised an important question in my mind and I'm sorry can you say again did you say the Eighth Circuit didn't apply a categorical approach?

[00:15:47] Speaker 00:
The Eighth Circuit in Lockwood actually applied, began with a typical categorical approach, but where a statute can criminalizes conduct that is broader than, is inclusive of the federal bench but is broader, it then looks to the facts and it didn't apply a divisibility

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analysis, and so therefore it actually applied a broader than categorical approach.

[00:16:14] Speaker 00:
It's not a strict categorical approach or a strict modified categorical approach if you read the way in which Lockwood presents it.

[00:16:20] Speaker 00:
That's similar to the way in which the 11th circuit presented it, and here the United States, the information that it relied upon... Back up again then?

[00:16:28] Speaker 04:
Sorry, oh no, go ahead, finish that sentence.

[00:16:30] Speaker 00:
I'm sorry, go ahead.

[00:16:32] Speaker 00:
pre-sentence report, which was that there was a conviction for carnal knowledge of a child and that that child was 13 years old, that at the time of the conviction, the defendant was 30 years old and he had sexual intercourse.

[00:16:44] Speaker 00:
Those facts were available as to what the substance of the conviction was.

[00:16:48] Speaker 04:
It wasn't just facts, right?

[00:16:51] Speaker 04:
The carnal knowledge of a child is in

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quotation marks that's the state that you know some of the name of the offense under Virginia law, I just wanted to follow up on and maybe I just misunderstood you when you first spoke.

[00:17:02] Speaker 04:
Did you I thought I heard you say that the government didn't know exactly what record didn't show what he was actually convicted of.

[00:17:08] Speaker 04:
but they applied it based on the facts.

[00:17:10] Speaker 04:
But the pre-sentence report identifies the, not the pre-sentence report, the statement of facts, the statement of offense, excuse me, identifies it by name, because it would be worrisome to me if the federal government didn't even bother to find out what statute someone was convicted of and then applied it.

[00:17:35] Speaker 00:
But it's also important to note here that this was a negotiated plea agreement.

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So not only did the government agree that this applied, but Appellant agreed that it applied.

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And in exchange for that agreement, Appellant received very important concessions from the government.

[00:17:48] Speaker 04:
I need to back up again.

[00:17:49] Speaker 04:
I'm not talking about that part of it.

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I'm just talking about where the government's starting point was.

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And the fact that someone didn't challenge it or agree to it as a separate

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question.

[00:18:01] Speaker 04:
Is it the government's practice, just to take a factual description like that, or is the government's practice to identify, if at all possible, and it was quite possible here, to identify what they were actually convicted of and then it can apply the U.S.

[00:18:16] Speaker 04:
government's position, whatever it is, on categorical or not before doing it?

[00:18:21] Speaker 04:
I assume the government is going through some

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standardized legal process before it claims an enhancement rather than just claiming it willy-nilly and waiting to see if the other side objects.

[00:18:35] Speaker 00:
Your Honor, I am not currently have knowledge of what precisely this particular attorney did or what precisely the general conduct is.

[00:18:46] Speaker 00:
Because none of those issues were raised in this appeal.

[00:18:49] Speaker 00:
OK, so let me back it up then.

[00:18:51] Speaker 04:
So what it is not then I should not take, as I understood your first statement to be, that they actually didn't know and it didn't matter to the government.

[00:19:01] Speaker 00:
I apologize if I ever said that it didn't matter to the government.

[00:19:05] Speaker 00:
What I said was that there is no citation currently in this record, there is no citation to the legal provision under which the individual was

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convicted in Virginia.

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And on a plain error review, which we're on here, as Your Honor noted, appellant did not object in the trial court to the application of this provision.

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In fact, we believe he waived because he actively negotiated for its application.

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And then at every step of the way, both in the plea hearing, in the sentencing hearing, and his own sentencing memorandum, he advocated for its application.

[00:19:43] Speaker 04:
If a categorical approach were applied though, it would not have been a proper predicate here, correct?

[00:19:51] Speaker 04:
The carnal knowledge statute in Virginia?

[00:19:55] Speaker 04:
Because it's broader than the federal one.

[00:19:59] Speaker 00:
If a strict categorical approach applied,

[00:20:01] Speaker 04:
Well, I don't know that we've used the adjective strict in front of it.

[00:20:03] Speaker 04:
We just call it the categorical approach, the categorical approach, as opposed to the 11th Circuit Modification, or a modified categorical or anything else.

[00:20:13] Speaker 04:
So if the categorical approach applies, as the Supreme Court has it under other statutes with respect to sex offenses like these, then it wouldn't have been eligible as a predicate because it's broad.

[00:20:27] Speaker 00:
That analysis wasn't ever done in this case.

[00:20:29] Speaker 00:
I'm just asking you a legal question.

[00:20:34] Speaker 04:
Excuse me.

[00:20:34] Speaker 04:
One other time will work a little better.

[00:20:36] Speaker 04:
Sorry.

[00:20:37] Speaker 04:
And so I said, that's why I asked my question.

[00:20:39] Speaker 04:
If the categorical approach applies, it seems to me pretty straightforward.

[00:20:44] Speaker 00:
So your honor, the government

[00:20:48] Speaker 00:
would have to do that analysis, would have to look at those elements, and would have to compare them side by side.

[00:20:55] Speaker 00:
And in this case, that wasn't done in this particular case because this would be on plain error review if it's not in fact waived.

[00:21:05] Speaker 04:
Well, it wasn't done on the record or anything, but I'm hoping that what you've told me is that the government would have done

[00:21:13] Speaker 04:
applied whatever its own approach to this is to the statutes before it claimed an enhancement.

[00:21:19] Speaker 00:
Well, and again, Your Honor, the question as to whether or not the categorical approach does apply here doesn't need to be answered either by this court or we believed on appeal, given that the appeal is defeated by the fact that there is waiver.

[00:21:32] Speaker 00:
and there is plain error.

[00:21:34] Speaker 00:
And although counsel has today stated that he believes that it would not meet the categorical approach, he has never before this court conducted that analysis for the court or presented that.

[00:21:48] Speaker 00:
And it is his burden on plain error to show that prejudice would attach.

[00:21:53] Speaker 00:
And he hasn't been able to do that because he hasn't come in to compare those elements to show that the categorical approach does not apply.

[00:22:03] Speaker 03:
Any further questions?

[00:22:04] Speaker 03:
No, not for me.

[00:22:05] Speaker 03:
Thank you.

[00:22:06] Speaker 03:
Thank you.

[00:22:07] Speaker 03:
Mr. McIntosh, you are out of time, but if you have any response to Mr. McGovern's argument, you can take one minute.

[00:22:24] Speaker 04:
You need to unmute.

[00:22:29] Speaker 02:
Can you hear me?

[00:22:31] Speaker 02:
Yeah, we can.

[00:22:32] Speaker 02:
Okay, all right.

[00:22:33] Speaker 02:
As to what was in the plea agreement, the government drafted that contract, and it's just fundamental that it has to be, when interpreting, it has to be construed against the government.

[00:22:46] Speaker 02:
Also, statutorily, this is a criminal case, so when you look at,

[00:22:52] Speaker 02:
the parties, if the defendant is facing criminal time, then it should be construed in favor of the defendant.

[00:23:01] Speaker 02:
Now, we didn't talk at all about burden.

[00:23:05] Speaker 02:
The government, not the defendant, has the burden of producing evidence for this enhancement.

[00:23:12] Speaker 02:
They did not do that.

[00:23:14] Speaker 02:
They cannot rely on a precinct investigation report if their disputed facts is contradictory or implausible.

[00:23:23] Speaker 02:
inconsistent with the evidence of trial.

[00:23:26] Speaker 04:
In the precedence report- Well, their statement of offense defined a crime that fits, that defined factually a crime that fits within the federal statute.

[00:23:40] Speaker 04:
Why didn't that meet their burden of proof?

[00:23:42] Speaker 02:
Your Honor, that's a negative, that is not the appellant's burden of proof.

[00:23:46] Speaker 02:
It is the government's burden of proof.

[00:23:49] Speaker 02:
I didn't have to prove that.

[00:23:52] Speaker 02:
That's asking me to prove a negative.

[00:23:54] Speaker 02:
It's the government's burden.

[00:23:56] Speaker 02:
That's a price.

[00:23:57] Speaker 02:
The U.S.

[00:23:57] Speaker 02:
price says that.

[00:23:59] Speaker 02:
The probation report lists prior crimes as statutory rape, while the trial court and the government supplement listed as coronal knowledge.

[00:24:10] Speaker 02:
Who knows?

[00:24:11] Speaker 02:
The government should have done that analysis because that's its burden.

[00:24:17] Speaker 03:
Okay.

[00:24:20] Speaker 03:
Mr. McIntosh, thank you.

[00:24:24] Speaker 03:
You were appointed by the court to represent the appellant and we appreciate your assistance.

[00:24:30] Speaker 03:
Thank you.

[00:24:30] Speaker 03:
Thank you, Your Honor.