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Case number 20-3011, the United States of America versus Kelvin Brevard-McBellance.

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Mr. Axum for the appellant, Mr. Goodham for the appellate.

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Good morning.

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Good morning.

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Counsel for appellant, please proceed.

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May it please the court, counsel, Tony Axum representing the appellant, Kelvin Brevard, and I'd like to reserve three minutes for rebuttal.

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We think that it's clear that the standard for an upward departure under Section 5K 2.21

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was not met here.

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And while I'm happy to answer the court's questions with regard to that issue, I'd like to first address the variance issue in this case, because the district court issued an alternative ruling stating that it would vary to arrive at Mr. Brevard's ultimate sentence, regardless of the guidelines departure question under section 5K 2.21.

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In this sense, Mr. Brevard's appeal turns on whether the evidence

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underlying the justification for the court's variance was sufficiently compelling to justify the degree of variance so that his sentence was substantively reasonable.

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We submit that his sentence was not substantively reasonable because the underlying justification for the variance was untested and partially unreliable.

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The government presented one witness

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who was a police officer who testified that he overheard statements of Ms.

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McQueen and her mother.

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And it was those statements that formed the basis for the district court's conclusion that Mr. Brevard threatened Ms.

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McQueen with a gun.

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And as a result of this finding, the court varied from the applicable guideline range of 12 to 18 months up to 30 months.

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The 12 month above the guidelines, the court

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imposed effectively amounted to a sentence for the conduct making up the superior court charges.

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And those charges in superior court were threats and assault as it related to the threat with the gun.

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And with regard to those charges- Can you clarify something for me right there?

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Yes.

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Did the threats charge in superior court specifically includes threat with the gun or was it just a generic threats charge?

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There was not a separate charge related to the gun.

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I don't know what the actual allegations of the information or indictment were, but he was not charged with a firearm at all in Superior Court.

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He was charged solely with threats and assault.

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Does the DC code, you may not know, but does the DC code differentiate between

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verbal threats and assault and threats with a gun in the way that some federal crimes distinguish whether you use a gun or not in them?

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I believe that there is a charge, assault with a dangerous weapon, which would always capture a threat with a gun.

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He wasn't charged with that?

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He was not charged with that.

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But I am not an expert on superior court charges.

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But with regard to those charges the government initially offered a plea to Mr Brevard for to plea to one of those charges, and it would run the sentence with that concurrently with his federal escape charge and it would dismiss the other charge.

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Rivard declined that offer.

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The government ended up dismissing the superior court charges altogether.

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So they were dismissed.

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And it was only after those two things happened that the district court here found that the charges were proven by preponderance of the evidence based on the hearsay statements that Mr. Rivard was at that point without a means of challenging because at sentencing,

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his confrontation clause rights were limited.

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He- No, I gather, Mr. Axum, you're not making an argument under Rule 32E that those procedures as to the DC charges were not followed here, namely adequate notice to the defendant and time to respond.

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No, we don't make any claim with regard to that.

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What I'm trying to understand in this whole area is, given what this court and the Supreme Court have held, what exactly are the limitations on what a trial judge can do at sentencing?

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Rule 32E sets up a pretty strict procedure.

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Now here, the district court essentially acted as a second prosecutor by mentioning it wanted to pursue the DC charges in connection with a possible variance in regard to the federal charge.

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Well, I mean, that's how this all started.

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This was not the government's initiative here.

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That's correct.

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And the district court, of course, can raise questions about anything virtually at sentencing.

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But your defense counsel's initial response was, I'm not prepared to address this.

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And so the district court said, ah, yes, I need to give you some time.

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And we need to have some witnesses that you can confront.

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And so it continued the matter for about a week.

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And then the government came forth with this police officer who was a trainee, who was basically an observer of what happened between what I'll call the mother and the grandmother in talking to other police officers.

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at the mother's home.

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Well, first I would say that we recognize that at sentencing the district courts have a lot of discretion and that there are virtually no limitations placed on the information that a district court can receive.

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But our position is that, and partially for the reasons that the court points out,

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the evidence presented here was not driven by the government and was not sufficiently compelling to justify the degree of variance.

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So what I'm trying to narrow is what's the dispute here?

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You're not raising a procedural objection insofar as our rule 32E is concerned.

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I didn't see in the record that is the transcript of the sentencing that defense counsel objected either to limited time or to the insufficiency of the witness in terms of his capability to provide relevant information.

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So the only question here is based on what the district court heard

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from this training officer and any other evidence, was it sufficient to find that the assault charge had been proved by a preponderance of the evidence?

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And the district court says yes.

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Well, the preponderance of the evidence standard is

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is fairly low, but I take issue with whether the defense objected to

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The insufficiency of this witness the defense.

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The objection was that this witness was only presenting hearsay testimony.

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So all of the evidence before the district court was hearsay and the defense didn't have an adequate means we didn't we didn't have we don't have a mechanism at sentencing to adequately challenge.

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hearsay testimony, we understand that- Could the defense have called Ms.

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McQueen or her mother as witnesses?

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Do you have subpoena power at the sentencing stage?

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Yes, my understanding is that if the defense had called them, had subpoenaed them, they would have been required to appear and testify.

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But

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But what defendant would do that in this case?

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Well, our complaint is whether the government essentially met its burden to establish the evidence that the district court relied on for this variance.

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So it all turns on concluding that the evidence that the government presented was hearsay.

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And the district court had two theories on that, didn't it?

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One, not hearsay because excited utterance, or, if hearsay, sufficiently reliable that it could rely on it.

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Yes.

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And under either theory, our position is that it was not sufficiently reliable because of the many questions.

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there may have been reliability as to some aspects of what the police officer testified, as to some aspects of the hearsay.

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But take, for example, just the existence or possession of a gun.

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A gun was not recovered.

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From the hearsay testimony that we know of, we know that the grandmother

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said that the gun was either in his waistband when she saw him or it was in his left hand.

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Those inconsistencies should have, they raise more questions about like the existence of a gun.

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We also did not hear.

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Well, let me just be clear.

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If she said she wasn't sure, I thought that was testimony that when he knocked on her door, he was using the gun.

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to knock, and then later she saw it in his left hand.

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I believe that both of those things are correct, but she independently said that when she saw the gun, she saw it as he lifted his waistband.

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Right.

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Well, she wouldn't have seen it if he used it to knock on the door.

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All I'm getting at is don't we have to look at the

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doing?

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Look at the evidence and most favorably to the government here?

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I'm not sure that's the standard at sentencing but that's not something that I take issue with because we're only dealing with the preponderance and we didn't

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And it is understandable that a court could hear testimony from a witness and credit that testimony.

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Our problem is the court did not hear testimony from this witness.

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The court heard testimony from

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A police officer who overheard other police officers speaking with this witness, he didn't even question her.

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So, of course there were discrepancies of course there were uncertainties, and those very uncertainties are.

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are the problem that I'm trying to identify.

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The problem that usually cross examination ferrets out, like it resolves.

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And the lack of resolution, I say it's a lack of resolution.

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I understand the district court drew a conclusion, but drew a conclusion from evidence that was insufficient.

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So that's our position.

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When you're relying on evidence that the defendant doesn't have a fair chance to call into doubt, to question, to put through the crucible of the fact finding process,

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That evidence should receive less weight when you are going to dramatically increase the defendant's sentence based on that evidence.

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The only realm that... Can I clarify that point?

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Because you also said earlier the evidence wasn't strong enough for the extent of the variance.

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And so what you're saying is that the evidence, because hearsay evidence can be used,

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is your position that the district court just shouldn't have relied on it at all for any variance?

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We don't think the district court should have relied on it, but we accept as a general principle that a district court can rely on hearsay, and even weak hearsay.

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But I don't know that I'm prepared to say that if the district court had

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varied by one day, we would have a great problem with it.

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I do know that this degree of variance is unjustified based on the evidence the court heard and our limited ability to challenge it.

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And is that gall that you're relying on for this notion that a reason for variance has to be sufficiently compelling to justify the degree

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of the variance and that less compelling justifies less of a variance and I. Yes.

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Yes, it is gone.

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Are there other cases we should look to on that because we're in a in a posture of great deference to the sentencing judge.

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And this is a little different from what I take Gall to be most directly talking about, which is a reason that presumably is established by a preponderance.

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Whereas here, it's sort of the quality of the evidence is weak.

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And I take it that this is part of what Judge Millett's question was going to is, can you partly believe

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you know, hearsay upon hearsay to the point of a lesser variance, or is it an on-off switch that either it's something that a district court could rely on or not?

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Well, unfortunately, I think that's where Gall has left us, because we're talking about an area where district judges do have a lot of discretion, sentencing, and we are

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we're only trying to figure out whether the sentence is so unreasonably higher or so unreasonably low.

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And as a reviewing court, a reviewing court doesn't look at a number and automatically know that.

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A reviewing court looks at the number and decides, is that number so unreasonably high or unreasonably low based on

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X based on factors based based on evidence or even in this case based on the weakness of the evidence.

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So I just would love to hear you on the how you understand the record such as it is.

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Am I right that the only evidence that the district judge confidently relied on that was probative was

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statement by the grandmother that then later was followed up by a telephone call with officer Casango directly with the grandmother.

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I mean, I'll also hear from the will hear from the prosecutor about this, but.

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I. I'm.

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I can't say that the record is very clear as to what exact statements the grandmother made or Ms.

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McQueen made.

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And by statements, I know generally the officer said, this is what they told me occurred, but the officer did not testify.

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And then she stated this.

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I'm not asking a tendentious question.

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I'm just asking a really straight up factual question.

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So just descriptively, as you understand the record,

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The district judge took a statement that the grandmother putatively made, that the defendant was knocking on the door with a gun that she described as a black handgun.

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He raised the gun with his left hand.

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He said, I'm gonna kill your bitch ass daughter.

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and he was turned and was going down the stairs and lifted up his shirt and showed the gun, that is putatively testimony that, or not testimony, that's a statement that the district judge relied on.

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And that statement came to the court through Officer Casango, who heard it from other officers,

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who heard it from the woman herself?

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Is that just factually as you understand it?

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I am not sure.

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I don't think the record is completely clear as to whether Officer Casango heard that part through other officers rather than heard it himself.

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government exhibit one, which was the body worn camera does not seem to allow enough time for officer Casango to have heard all of that himself.

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So did that happen after, that was actually where I was going.

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So there are statements of Ms.

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McQueen that are not particularly audible, but that are during the period when the body worn camera is running.

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But nobody is claiming that the statements by Ms.

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McQueen's mother occurred during the time that the body cam was running.

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And I just was wondering about that.

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And then Officer Kazan goes with an earshot.

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But he's turned off his body, one cam, or?

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I don't think he turned it off.

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I think it appears that he had it on from the time that he exited the car, or very close to that.

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But there were other officers already at the scene, already speaking to the two women before Officer Casango arrived in the entryway to hear anything.

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He wasn't even the best officer to offer this evidence if the government was going to proceed solely based on the hearsay from the officers.

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He was weak.

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And in that sense that there are questions that, again, we were without the means to challenge him, but that

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is further reason to doubt the reliability of the hearsay statements themselves because officer Casango, we can't be sure right now what he heard and what he didn't and what he heard through another person.

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There's so many layers.

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No question that you had the opportunity or your client had the opportunity to bring out all these points in questioning

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the officer.

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Isn't that correct?

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A, that he arrived late.

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B, he was at the bottom of the staircase.

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So he may have had difficulty hearing things.

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And then also, as to his statements, could not the defendant have questioned him about them.

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In other words, all the points you're making now, couldn't those have been expressly

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brought to the district court's attention?

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And my question is, indeed, were they brought to the district court's attention based on the hearing transcript that I read?

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So the district court was aware of all this.

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I think that that's my first answer.

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The district court was aware that the defense could have more explicitly cross-examined these deficiencies

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is is true, but it doesn't change that that what officer Casango testified to was.

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was unclear and not sufficient to justify.

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The finding that the district court made.

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In the, I mean, another challenge and a reason supporting our deference is the district judge is making a totality of the circumstances determination.

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And here, I guess I have two questions.

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One, if we affirmed on the 3553 ground, we don't have to reach the 5K 2.21 ground.

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Would it be inappropriate to reach it?

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I'm sorry, would it be inappropriate to reach the five?

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In other words, are they really independent separate grounds?

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No.

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I mean, ultimately, the district court said, I think the, I mean, this is a quote, I think the upward departure for the uncharged conduct alone sufficiently justifies this sentence.

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If the upward departure alone justifies the sentence,

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then I think it is logical that the variance, there's no gap.

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There's no gap between the degree of variance and the upward departure.

[00:24:15] Speaker 01:
Right, but that is a virtue for the district court, for the stability of the district court ruling, not a virtue for your client's challenge to it.

[00:24:22] Speaker 01:
Isn't that the case that if there's an information that could be relied on in one of two ways, one in support of a sort of more specific, more spelled out and constrained upward departure and the other in a more totality of circumstances, you know, balancing of relevant circumstances and the district court does it in both,

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that surely the second, I mean, the same information could be weighed with equal gravity in both, no?

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Right.

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But if the upward departure is 12 months, and the court says this is justified by your uncharged conduct, and the court also says the variance is 12 months,

[00:25:13] Speaker 00:
It seems, I would say it would be disingenuous to say the variance is justified by the 12 months for the same reasons and also these other reasons under a totality of the circumstances.

[00:25:29] Speaker 00:
I mean, that's not actually what happened.

[00:25:32] Speaker 00:
I mean, it's, I mean- I don't know why that's disingenuous.

[00:25:35] Speaker 01:
That seems quite consistent.

[00:25:36] Speaker 01:
It's saying I'm looking at a real world

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situation a real world person and some genuine assessments that I'm making about risk and so the consistency.

[00:25:47] Speaker 01:
I'm just I'm not sure.

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why, I mean, it might be a wash, but I'm not sure why you see that as another reason to question the district judges' sentencing work here.

[00:26:01] Speaker 00:
If there are other factors in addition to the factors taken into account for the upward departure, it seems unusual that those other factors don't

[00:26:18] Speaker 00:
result in more than 12 months if they are, I mean, I suppose it's a district court's prerogative, but there seems to be an inconsistency.

[00:26:32] Speaker 01:
But then what's, I mean, I'm having, I'm sorry, I don't wanna belabor this.

[00:26:35] Speaker 01:
This is probably not the most productive use of our time, but it just seems like they, you know, the other lesser things that he mentions, unscored other convictions and his failure to comply on previous occasions with more lenient release conditions, those could be consistent with, but subsumed under the umbrella of a larger concern.

[00:26:56] Speaker 01:
I mean, you know, there's such thing as,

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concurrent sentencing.

[00:26:59] Speaker 01:
And I know that was not what was given here.

[00:27:01] Speaker 01:
But the very logic of sentencing is that some things are more determinative because more serious and others kind of are so subsumed within a package.

[00:27:11] Speaker 01:
It doesn't seem to make it logically inconsistent that there are these two different routes to the same sentence.

[00:27:19] Speaker 01:
And I'm just probing whether you have some reason to tell me I shouldn't be thinking of the law that way.

[00:27:30] Speaker 00:
In theory, that sounds logical.

[00:27:33] Speaker 00:
I think in practice, when you put five things in a hat and you say this equals 12 months, and then you put seven things in a hat and you say this also equals 12 months, without an explanation as to why they both equal 12 months,

[00:27:59] Speaker 00:
I think that gives reason to question whether the other two things had any effect whatsoever.

[00:28:09] Speaker 02:
So you're saying we don't, I hear you right.

[00:28:12] Speaker 02:
What you're saying is given the way in which the district prop receded, we really can't tell from this record.

[00:28:19] Speaker 02:
Yes.

[00:28:20] Speaker 02:
the prior initial determination that this crime that happened were backed out if it didn't exist, we're in a world where that doesn't exist, would he have come to the same balance?

[00:28:34] Speaker 02:
We just can't tell on this record.

[00:28:36] Speaker 00:
That's correct.

[00:28:38] Speaker 02:
If Judge Piller's done with that line of questions, I really did want to talk to you about the 5K2 issue.

[00:28:43] Speaker 02:
I just have some questions.

[00:28:45] Speaker 02:
Is that okay?

[00:28:49] Speaker 02:
The DC Superior Court charges were dismissed, were they dismissed before the plea agreement or after?

[00:28:59] Speaker 01:
The plea, not the plea agreement.

[00:29:01] Speaker 00:
Excuse me, sorry.

[00:29:03] Speaker 00:
He pled guilty to the information or I think indictment, but he pled guilty to the charging document.

[00:29:12] Speaker 00:
So the, I am not sure actually.

[00:29:17] Speaker 02:
What I'm trying to figure out is, could those charges have been added to his case, even when dismissed from DC Superior Court?

[00:29:24] Speaker 02:
Could they have added them to the federal case?

[00:29:27] Speaker 00:
I think for the reasons that I lay out, it would have been legally improper to add them to the federal case.

[00:29:38] Speaker 02:
Explain that to me a little bit.

[00:29:40] Speaker 02:
better.

[00:29:41] Speaker 02:
Again, you can't prosecute them in both courts at the same time.

[00:29:44] Speaker 02:
But if it's dismissed in one court, just because of the unusual nature of the

[00:29:55] Speaker 02:
status of the district for these purposes.

[00:29:59] Speaker 02:
Could these just categorically not, as a matter of law, have been prosecuted?

[00:30:03] Speaker 00:
As a matter of law, even if they'd both been brought in DC Superior Court without the defendant's consent through some plea negotiation, the charges were unrelated.

[00:30:19] Speaker 00:
the escape ended on July 31st.

[00:30:22] Speaker 00:
And none of the facts related to the escape were part of the assault and threats.

[00:30:32] Speaker 00:
And under rule eight, which is the joiner rule, which applies in superior court as well, in order to join two separate crimes, they have to be of similar nature, which these are not.

[00:30:51] Speaker 00:
part of a common scheme or plan, which these were not, or a part of the same transaction.

[00:30:55] Speaker 02:
Right.

[00:30:56] Speaker 02:
But let's assume that you have a prosecutor who has the same view as the district court.

[00:31:00] Speaker 02:
I understand you disagree with it.

[00:31:03] Speaker 02:
I'm just asking the question.

[00:31:04] Speaker 02:
If they have the same view of crimes you commit on an escape or crimes you commit within a relatively short period of time after the escape, which would include two months.

[00:31:19] Speaker 02:
they thought that they were related, is it your position that they could have brought them, they could have amended the indictment, I can't remember if it was indictment or information in this case, they could have amended it to include those two charges.

[00:31:34] Speaker 02:
And you're saying if the defendant had consented, it could have been part of the plea if the defendant had consented.

[00:31:40] Speaker 00:
That's the only way.

[00:31:42] Speaker 00:
And the problem is that you can't,

[00:31:46] Speaker 00:
The law doesn't allow for Joinder simply because two things take place close in time.

[00:31:54] Speaker 02:
That is, that is.

[00:31:56] Speaker 02:
I'm putting it aside the related issue I'm just trying to understand the legal framework here.

[00:32:01] Speaker 02:
And so, in theory, these things, had they been included, had they originally been charged by the government.

[00:32:09] Speaker 02:
by the federal government together and not in separate courts, just in federal court.

[00:32:15] Speaker 02:
And your client would have had objections.

[00:32:17] Speaker 02:
You can't bring those here all the same.

[00:32:18] Speaker 02:
But say they're charged together in this court, in federal court.

[00:32:26] Speaker 02:
That would have been unlawful without his agreement.

[00:32:28] Speaker 00:
I think it would have been unlawful under Rule 8.

[00:32:31] Speaker 00:
We would have filed a motion to sever under Rule 14.

[00:32:37] Speaker 00:
It's again, because none of the facts necessary to prove the escape are necessary to prove the assault and threats.

[00:32:43] Speaker 00:
And that's the general framework.

[00:32:46] Speaker 02:
I think all- I'm trying to ask if the rule eight test isn't, I know you propound the rule eight test here for what counts as a potential charge in the case.

[00:32:54] Speaker 02:
If that's not the test, I'm trying to figure out if there's another one, but would this even have been something sort of cognizable in the federal court?

[00:33:02] Speaker 01:
It doesn't matter that they're DC local charges.

[00:33:05] Speaker 01:
Those can be brought in federal court in DC.

[00:33:07] Speaker 01:
I know I should know this, but.

[00:33:09] Speaker 00:
Sometimes.

[00:33:11] Speaker 05:
Sometimes.

[00:33:13] Speaker 05:
OK, there's a statute on that.

[00:33:15] Speaker 05:
And then there's the rule as well.

[00:33:20] Speaker 02:
Can you elaborate, one of you?

[00:33:24] Speaker 01:
Maybe we can.

[00:33:24] Speaker 01:
Mr. Goodhand probably will be able to speak to that.

[00:33:29] Speaker 05:
When you can bring local charges in federal court.

[00:33:36] Speaker 00:
In general, the government needs a federal nexus.

[00:33:40] Speaker 00:
So they need a federal crime in order to bring the local charges in federal court.

[00:33:45] Speaker 00:
The federal crime here would be the escape because he removed himself from the custody of the attorney general.

[00:33:51] Speaker 00:
Just a quick aside, if DC were not the federal district, all of this would be in state.

[00:34:01] Speaker 00:
We wouldn't even be having this discussion, which is, I understand a separate issue, but even within state,

[00:34:12] Speaker 00:
Even, even if everything had been brought in, in DC.

[00:34:16] Speaker 00:
I know the court is trying to figure out like a way to conceptualize when charges can be brought together and I understand that.

[00:34:30] Speaker 00:
that I understand the temporal relationship between the escape and what happens on escape.

[00:34:36] Speaker 00:
But the only reason that the temporal relationship exists is because escape is a continuing offense.

[00:34:43] Speaker 00:
And it is only a continuing offense so that the statute of limitations doesn't run.

[00:34:48] Speaker 00:
It is not a continuing offense because either any part of the mens rea or actus rea has to be committed during that time.

[00:34:59] Speaker 00:
All of the actions for escape are complete on July 31.

[00:35:03] Speaker 00:
It is just a legal construct that it is a continuing offense until he is picked up again.

[00:35:10] Speaker 00:
So whatever happens while he's not picked up doesn't contribute to and is not the result of the escape.

[00:35:23] Speaker 02:
That's just one more quick, simple fact question.

[00:35:26] Speaker 02:
I noticed that in the sentencing hearing, Mr. Rivard's counsel asked that he be sent, I think, to Butler in South Carolina to get mental health treatment.

[00:35:41] Speaker 02:
I didn't then see the district court asking for that, but it could be some other place that I haven't seen.

[00:35:46] Speaker 02:
Do you know where he is, and is he in a facility where he's getting mental health treatment, since that really seemed

[00:35:52] Speaker 02:
It seems to be mentioned a fair amount at the hearing.

[00:35:54] Speaker 00:
I can't remember where he is, but I am positive that he is not at Butner.

[00:35:59] Speaker 01:
I think the district court undertook to send him to Butner or Peterson, is that right?

[00:36:08] Speaker 00:
He's not at a facility receiving.

[00:36:11] Speaker 00:
I can't say that he's not receiving any treatment, but he's not at a facility that specializes in mental health treatment.

[00:36:19] Speaker 00:
I can look that up and get back to the court.

[00:36:22] Speaker 03:
It was just a question Mr. Goodhand might be able to answer too.

[00:36:25] Speaker 05:
Okay, why don't we hear from the government and we'll give you some rebuttal time.

[00:36:31] Speaker 07:
It please the court gave a good hand for the United States.

[00:36:33] Speaker 07:
Addressing the issues in the order presented by my opponent, first turning to the reliability finding that the district court made.

[00:36:44] Speaker 07:
Pursuant to Leyva, this court reviews an abuse of discretion standard.

[00:36:48] Speaker 07:
The question is whether the information had sufficient indicia of reliability to support its probable accuracy.

[00:36:56] Speaker 07:
The district court did not abuse its discretion in concluding that its finding by preponderance that Ms.

[00:37:06] Speaker 07:
McQueen was threatened by the defendant is supported by reliable evidence.

[00:37:12] Speaker 07:
And the court based that on two alternative grounds.

[00:37:15] Speaker 07:
First, the court made clear

[00:37:19] Speaker 07:
the grandmother's description of the threat when Officer Casongo and the other two officers came on the scene constituted an excited utterance.

[00:37:30] Speaker 07:
And of course, excited utterances have their own inherent reliability.

[00:37:33] Speaker 02:
Does that work for Mr. Casongo, who didn't hear the excited utterance?

[00:37:37] Speaker 02:
That might work if you had one of the officers who heard

[00:37:41] Speaker 02:
directly the excited utterance.

[00:37:43] Speaker 02:
Is it true, and maybe I'm just wrong on this, is it true that that justifies hearsay about that hearsay, but it's more than an exception hearsay?

[00:37:55] Speaker 02:
What justified Mr. Casango testifying about other officers' statements that they heard excited utterance?

[00:38:02] Speaker 07:
The record indicates that Officer Kasongo himself heard the excited utterance and I would point to JA111 where he describes the exact words that she said.

[00:38:16] Speaker 07:
He said, tell your bitch of a daughter that I will kill her.

[00:38:20] Speaker 07:
That's a JA111.

[00:38:22] Speaker 07:
And then at JA-108, Officer Casongo explains that the mother and the grandmother talked to all three officers in the same manner as how he puts it.

[00:38:34] Speaker 07:
That is, they were in a group and the two women were talking to the officers as they themselves were also in a raid in a group.

[00:38:43] Speaker 07:
So, what was your, what was your second you said J 111 and then you're saying, yeah, I'm sorry, your honor, 108, I think supports the line.

[00:38:55] Speaker 07:
I'm sorry, your honor.

[00:38:57] Speaker 05:
Do you know what line I'm at 108 now.

[00:39:03] Speaker 07:
It's really just stands to the proposition that Officer Casongo is describing the setup when all three officers went into the apartment building.

[00:39:14] Speaker 05:
Yes, but he's at the bottom of the stairs.

[00:39:16] Speaker 05:
The other officers are somewhere else.

[00:39:18] Speaker 05:
He makes that clear.

[00:39:20] Speaker 07:
Actually, Your Honor, the district court made an express finding that the way Officer Casongo described the sequence of events is initially he was with the two other officers and the two women on the same level as all four participants, the two women and the two other officers.

[00:39:41] Speaker 05:
But he arrived later.

[00:39:43] Speaker 05:
According to his own testimony, he is at the bottom of the stairs.

[00:39:48] Speaker 05:
That's all I'm getting at.

[00:39:49] Speaker 07:
And that's not accurate, Your Honor.

[00:39:51] Speaker 07:
He described a sequence event, and I think it's supported by the body worn camera, which is exhibit one.

[00:39:57] Speaker 07:
He came into the apartment building together with the other two officers.

[00:40:02] Speaker 07:
He went up the stairs with the other two officers.

[00:40:05] Speaker 07:
When he heard that the defendant had been accused of having a gun and threatening the complaining witness, he then explained that he moved down a level

[00:40:16] Speaker 07:
to guard the front door of the apartment building, but as the district court expressly found, Officer Cosongo could still hear the descriptions of events that the two women were providing to the two officers slightly above him on the stairway.

[00:40:33] Speaker 05:
So that's 111, which is your strongest site, starting at line 17, I think, where he says, but I heard

[00:40:47] Speaker 02:
But elsewhere he talks about there's so much commotion and noise and he's sort of overhearing things and he's not right there and it's not being said to him.

[00:40:55] Speaker 05:
That's a key line I thought was where he says, but I heard that the mother and it says I in the transcript was speaking that he was knocking on the door.

[00:41:09] Speaker 05:
I believe if my memory serves me right with a weapon.

[00:41:16] Speaker 01:
This is really ambiguous because he also later talks about having heard that there was a child and that the child went back and spoke to the mother and that the mother- I know, but this is direct testimony from him that he heard.

[00:41:29] Speaker 05:
I'm not, I'm sorry, I was- The district court, it seems to me, could rely on that.

[00:41:34] Speaker 05:
That's all I'm getting at as to whether there was sufficient liability, even though he wasn't talking directly to them.

[00:41:41] Speaker 07:
And that's supported I would suggest your honor by j 165 which is the district court's findings.

[00:41:48] Speaker 07:
He said, even though you can't hear it on the video I have no doubt that the officer was testifying truthfully about what he could hear.

[00:41:55] Speaker 07:
That's one point the second point I would make is that.

[00:42:00] Speaker 07:
the district court was quite cognizant of the fact that the report of the child was in fact double hearsay.

[00:42:06] Speaker 07:
And the district court made a finding to the extent that I know officer Casongo talked about the child reporting a gun, but the officer made clear that he only heard that later when the officers were canvassing the area and the two other officers apparently relayed to him that the mother had also said the child had seen a gun.

[00:42:28] Speaker 07:
So anyway, the record certainly looked at it in the light most favorable to the government coupled with the district court's express findings support the court's conclusion that there was an excited utterance overheard by Officer Casongo relating to the grandmother, and that is that there was a threat.

[00:42:48] Speaker 07:
And that the court independently said and alternatively said supported its conclusion by preponderance of the evidence

[00:42:58] Speaker 05:
That goes your argument that that testimony includes not only a threat, but a threat with a gun.

[00:43:07] Speaker 06:
Yes, because officer could song goes on to describe that.

[00:43:27] Speaker 06:
Your apologies your honor I'm looking through.

[00:43:29] Speaker 06:
Okay.

[00:43:44] Speaker 07:
I know he described the gun is a black handgun.

[00:43:47] Speaker 07:
And I apologize what I can't.

[00:43:52] Speaker 07:
He said, let's see.

[00:43:53] Speaker 07:
Oh yeah, here it is.

[00:43:54] Speaker 07:
I'm sorry.

[00:43:54] Speaker 07:
I apologize, your honor.

[00:43:56] Speaker 07:
It's in the same, well, let's see.

[00:44:00] Speaker 07:
It's J164.

[00:44:02] Speaker 07:
Certainly the court finds the defendant had been knocking on the door with a gun.

[00:44:06] Speaker 07:
I apologize.

[00:44:09] Speaker 07:
I'm going through the officer's testimony.

[00:44:19] Speaker 07:
Okay, I'm sorry, again, that is 111.

[00:44:22] Speaker 07:
He was knocking on the door with a weapon and he was knocking on the door with it and calling her types of names to her daughter.

[00:44:30] Speaker 07:
So that's it, JA111.

[00:44:32] Speaker 07:
And so that, again, that's combined with the threat.

[00:44:38] Speaker 07:
It's an excited utterance that it has two parts, threat to kill coupled with presence of gun.

[00:44:46] Speaker 02:
Can I ask a question?

[00:44:48] Speaker 02:
Is there evidence somewhere in the record about what this door was like?

[00:44:52] Speaker 02:
If it's just like a wooden door, how could they know what he was knocking with?

[00:44:58] Speaker 02:
Is there evidence maybe there's a glass around the door?

[00:45:00] Speaker 07:
I don't think there's anything in the record to indicate that, Your Honor.

[00:45:04] Speaker 01:
Well, the body-worn camera shows the doors on the immediate below.

[00:45:09] Speaker 01:
I mean, unless the doors are different, they're solid wooden doors.

[00:45:13] Speaker 01:
black painted solid doors with no window that I could discern.

[00:45:22] Speaker 01:
So there was a question I had about the knocking on the door with the gun and then holding the gun and then having the gun in the waistband.

[00:45:30] Speaker 01:
Mr. Goodhand, I just wanted to pin one thing down.

[00:45:34] Speaker 01:
You had mentioned the

[00:45:37] Speaker 01:
child's testimony is double hearsay, but I think as it's described by the district court, it's triple hearsay.

[00:45:42] Speaker 01:
Is that right?

[00:45:42] Speaker 01:
It's child tells mother and grandmother, mother and grandmother tell the other officers, and then the other officers tell Casango.

[00:45:50] Speaker 07:
I think that's accurate, Your Honor.

[00:45:52] Speaker 01:
And then with respect to the utterance that is so central here, which is the grandmother's,

[00:46:00] Speaker 01:
The grandmother said that to officers, we believe, before Officer Casango showed up on the scene, that he'd been knocking on the door with a gun, that he described as a black handgun, that that's all an encounter between the grandmother and the other officers, and then later Officer Casango testifies about it.

[00:46:19] Speaker 01:
So that's double hearsay, right?

[00:46:22] Speaker 07:
Your Honor, maybe I'm misunderstanding your question.

[00:46:26] Speaker 07:
I think this goes to the issue of whether or not Officer Casongo could hear the initial interactions between the grandmother and the mother on the one hand, and the two officers.

[00:46:35] Speaker 07:
And the court concluded, as a matter of fact, that he could.

[00:46:40] Speaker 07:
And he thus reported in his testimony that he- I thought he wasn't- No, no, no.

[00:46:48] Speaker 01:
There are two different utterances.

[00:46:49] Speaker 01:
Go ahead, Judge Millett.

[00:46:50] Speaker 02:
No, no, I think it's if you felt you wanted to, but I think we're asking the same thing.

[00:46:53] Speaker 01:
So we had a whole discussion previously this morning about the grandmother saying that he'd been knocking on the door and that he had a handgun and that that was all not anywhere recorded even in a muffled and difficult to discern way on the body worn cam.

[00:47:13] Speaker 01:
And the reason for that, I understood,

[00:47:16] Speaker 01:
was that that particular encounter was the preceding officers who arrived and talked to the women before Officer Casanga was even on the stairs.

[00:47:27] Speaker 01:
And then later, what you hear to the extent it is at all audible is McQueen saying, he's a killer, he's a killer, he's a killer, if you've been here when you got here, where to come.

[00:47:38] Speaker 01:
That's a different statement and that I gather is not the statement that the district judge is relying on.

[00:47:43] Speaker 01:
So to the extent that he's relying on the testimony or the statement by the grandmother, it's a double hearsay statement that then officer Casango follows up later and asks about in a conversation with the grandmother.

[00:47:58] Speaker 01:
Is that factually correct?

[00:48:00] Speaker 07:
I don't think so, Your Honor.

[00:48:02] Speaker 07:
Again, I understand the sequence of events is Officer Casongo, and I think it's supported by the body worn camera footage.

[00:48:09] Speaker 07:
Officer Casongo enters with the two other officers.

[00:48:12] Speaker 07:
They all hit the stairs.

[00:48:14] Speaker 07:
The two women, as I think the body worn camera footage supports, are coming down the stairs towards the officers.

[00:48:21] Speaker 07:
They are speaking.

[00:48:22] Speaker 07:
It is true, the first two officers that Officer Casongo is training with,

[00:48:30] Speaker 07:
reach the two women.

[00:48:32] Speaker 07:
But I don't think officer Casango ever suggested that he could not hear what those two women were saying to those two officers in the stairwell.

[00:48:40] Speaker 07:
And again, I think that's, that's what the district court said when it made the finding that it did.

[00:48:47] Speaker 07:
And this is again, let's see.

[00:48:51] Speaker 07:
It's page 165, I have no doubt that the officer was testifying truthfully about what he could hear.

[00:48:56] Speaker 07:
And that is conjoined I would suggest with JA 111, where the officer says, the mother said he was quote knocking on the door with a weapon.

[00:49:07] Speaker 07:
and calling her types of names, and she said, this is the exact words, I'll tell your bitch of a daughter that I will kill her.

[00:49:14] Speaker 07:
I think all that conjoined, it supports, and that's, I would suggest, is commensurate and supported by the court's excited utterance finding.

[00:49:26] Speaker 01:
I think you may be misunderstanding there are two different statements.

[00:49:32] Speaker 01:
that none of that is even close to on the body worn camera.

[00:49:38] Speaker 01:
The discussion about her coming,

[00:49:41] Speaker 01:
I mean, about him coming, what the grandmother reports.

[00:49:45] Speaker 01:
He had a gun, she saw the gun.

[00:49:47] Speaker 01:
He had it and lifted his shirt as a threat.

[00:49:52] Speaker 01:
As I understand it, all of that was told to Officer Casango by the officers who preceded him.

[00:49:58] Speaker 01:
And yes, there's separately the incident on the stairs.

[00:50:01] Speaker 01:
And the only person who speaks in that incident, I think, on the tape is

[00:50:10] Speaker 01:
with regard to the defendant's specific threatening conduct, is the daughter.

[00:50:19] Speaker 07:
I disagree, and I would point to JA164, where the court describes a body-worn camera, which I would suggest- I understand there was a body-worn camera, and Officer Kisanga was on the stairs, and there was some things audible.

[00:50:33] Speaker 01:
I'm just saying that the grandmother's statement, I don't believe was asserted to have been made during that time, but I'll go back and check.

[00:50:39] Speaker 07:
That's why I understood the record to stand for the proposition that grandmother's statement was made at that time.

[00:50:45] Speaker 07:
And the court says, I couldn't make out a lot of what was said in the conversation and don't put a lot of weight on the body or on camera.

[00:50:53] Speaker 07:
I certainly didn't see anything to call into question anything the officer said.

[00:50:57] Speaker 07:
And then we revert to the officer's testimony that he himself heard as the women talked

[00:51:04] Speaker 07:
to the three officers in mass, the excited utterance relating to the threat.

[00:51:13] Speaker 07:
That's how I read the record, Your Honor.

[00:51:16] Speaker 05:
All right.

[00:51:16] Speaker 05:
Let me ask you a threshold question.

[00:51:19] Speaker 05:
If we agree that either the district court could view the statements as excited utterances or that in any event,

[00:51:35] Speaker 05:
The hearsay was sufficiently reliable.

[00:51:39] Speaker 05:
Do we need to address the 5K 2.21 challenge?

[00:51:46] Speaker 07:
No, the district court on several occasions made it clear, and I would point your honors to JA 174, JA 207, and JA 201.

[00:51:59] Speaker 07:
The district court made it abundantly clear that these were independent rationales for- I agree.

[00:52:05] Speaker 05:
The only question I have is, were the court to conclude that it was error?

[00:52:14] Speaker 05:
to apply 5K 2.21?

[00:52:23] Speaker 05:
Is there a reason for the court to make that clear?

[00:52:27] Speaker 05:
Or do we say, as we have said before, since we can affirm on the alternative ground, there is no need to address the other ground?

[00:52:40] Speaker 07:
I think the latter position is in conformity with this court's decision in Simpson, which says, if the alternative rationale is sufficient to support the judgment, the judgment must be upheld.

[00:52:51] Speaker 05:
But that's a different question, respectfully, counsel.

[00:52:54] Speaker 05:
It must be upheld.

[00:52:56] Speaker 05:
But the question is, does the court have any obligation in those circumstances if it rejects your argument as to the 5K 2.21?

[00:53:10] Speaker 07:
I think this court's obligation is to take the district court at its word.

[00:53:16] Speaker 07:
And so when the district court says, even if I'm wrong, I would consider this under 3553 as a variance, and that's a J174.

[00:53:25] Speaker 05:
So is this a situation like many others where this is not a harmless error situation, but where the court says, even if there was error, we don't have to address that.

[00:53:38] Speaker 05:
because there was this alternative ground.

[00:53:42] Speaker 07:
I think that's exactly right, Your Honor.

[00:53:45] Speaker 07:
And the alternative ground is completely distinct.

[00:53:48] Speaker 07:
So this bleeds into the distinction between a departure ground and a variance ground.

[00:53:54] Speaker 07:
The departure ground is technically, it's an application of the guidelines.

[00:53:57] Speaker 07:
You're just saying that there were factors that led me outside the heartland of the guidelines.

[00:54:02] Speaker 07:
A variance, of course,

[00:54:04] Speaker 07:
A variance, of course, is a different analysis.

[00:54:08] Speaker 07:
That is, it's a statute.

[00:54:09] Speaker 05:
So from the government's point of view, if the district court has discretion to look to a voluntary non-mandatory guideline and sentence in accordance with that, or to exercise this discretion under 3553, what role do the guidelines play?

[00:54:34] Speaker 05:
in sentencing.

[00:54:38] Speaker 07:
Well, obviously, it's a statutory consideration under 3553A.

[00:54:45] Speaker 07:
That is application of the guidelines and the resulting range.

[00:54:50] Speaker 07:
But that gets at, I think, critically, when the court got to that part of its variance analysis, the court said it believed the sentence was demonstrated and supported by the guidelines.

[00:55:01] Speaker 07:
In particular, I looked at 5K2.

[00:55:03] Speaker 07:
But if it wasn't,

[00:55:05] Speaker 07:
I would still impose the same sentence as an upward variance, and that's a J.A.

[00:55:08] Speaker 07:
207.

[00:55:10] Speaker 07:
So the district court was assiduously following the statutory factors.

[00:55:13] Speaker 07:
One of the statutory factors is the guidelines in the properly calculated range.

[00:55:18] Speaker 07:
The district court said, I think the sentence that I am planning on imposing is supported by the guidelines pursuant to that statutory factor.

[00:55:27] Speaker 07:
But even if it wasn't,

[00:55:28] Speaker 07:
I am imposing it as an upward variance based on his criminal history, his inability to adhere to judicial supervision, his many probation revocations.

[00:55:41] Speaker 07:
The court concluded that the community need to be kept safe from his future crimes is how the District Court put it.

[00:55:48] Speaker 07:
And so, you know, this is another point that I would like to make is

[00:55:54] Speaker 07:
My opponent has suggested that the variance depended entirely on simply the, the uncharged conduct.

[00:56:02] Speaker 07:
It's difficult, I would suggest to read the transcripts, the transcript pages and the thorough explanation that district court provides.

[00:56:10] Speaker 07:
and conclude that the upper reverence was predicated on, yes, it is true, the uncharged conduct.

[00:56:16] Speaker 07:
But the court was also, as it put it, quite concerned about the defendant's significant criminal history, quite concerned about the trends that the district court saw in the defendant's actions.

[00:56:27] Speaker 07:
On the one hand, he couldn't adhere to judicial supervision, had five probation revocations.

[00:56:33] Speaker 07:
On the other hand, the district court identified the escalating misconduct involving guns that the district court had perceived.

[00:56:41] Speaker 07:
And the court considered unwarranted sentencing disparities, concluded that was not a factor.

[00:56:48] Speaker 05:
So I guess I'm trying to understand.

[00:56:49] Speaker 05:
I'm a defense attorney.

[00:56:52] Speaker 05:
And I'm preparing my client for sentencing.

[00:56:57] Speaker 05:
And I look at rule 34E.

[00:57:00] Speaker 05:
and I see what's going on and that the defendant has a chance to state his objections and the government has a chance to state its objections.

[00:57:11] Speaker 05:
But the report that actually comes to the district court, even though it lists this assault charge that was in the superior court, it recommends to the district court that nothing else

[00:57:30] Speaker 05:
would support a sentence in excess of the guidelines.

[00:57:37] Speaker 05:
So now do we understand that that's not sufficient, that the pre-sentence report must contemplate it now that we have these non-mandatory guidelines that the district court may as an alternative proceed under 3553A

[00:57:55] Speaker 05:
and deal with that as well so that the defendant in preparing for sentencing knows what he's up against to the extent the pre-sentence report is supposed to give him notice, understanding, as you point out, that the district court has a lot of discretion nonetheless.

[00:58:14] Speaker 05:
But I'm just thinking about what's the whole point of the pre-sentence report if it's not dealing with the reality of what's happening in the district court?

[00:58:25] Speaker 07:
The whole point of PSR, I would suggest, Your Honor, is dictated by Gall's instruction that the very first step that a district court must undertake is a proper calculation of the guidelines.

[00:58:36] Speaker 07:
And so the pre-sentence report has obviously a huge impact on the guidelines calculations and the court's consideration of that, the defendant and the government lodge their objections.

[00:58:48] Speaker 07:
Once we get past the threshold of properly calculated guideline, guideline range, possibility of departures, then the court pursuant to call is instructed to consider the statutory factors pursuant to 3553A.

[00:59:03] Speaker 07:
So I think in this case, that exact sequence of events was followed assiduously.

[00:59:08] Speaker 05:
So in this case, if the district court says to

[00:59:14] Speaker 05:
the government as well as defense counsel, I'm contemplating adding some time based on this dismissed assault charge.

[00:59:28] Speaker 05:
Then the district court must do what it did here, mainly afford an opportunity for cross examination and give defense counsel sufficient time to prepare

[00:59:43] Speaker 05:
for this new development?

[00:59:47] Speaker 07:
I think the Supreme Court in Burns articulated that the requisite notice was necessary on a due process level for these types of contemplated departures.

[00:59:56] Speaker 07:
And my opponent has not suggested that that was not adhered to here.

[01:00:00] Speaker 05:
And I just want to be clear on what the government's position is.

[01:00:05] Speaker 07:
I think the government's position is that the court assiduously followed both Burns with the requisite notice and then gave the defendant the opportunity to test the reliability of the information that the district court was contemplating relying on.

[01:00:22] Speaker 07:
That is the uncharged threat that had been charged in Superior Court.

[01:00:27] Speaker 07:
And in that respect, the district court was obviously on full notice of the defendant's concerns about confrontation.

[01:00:34] Speaker 07:
That was fully explored before the district court.

[01:00:38] Speaker 07:
The district court was on full notice that this officer was there for only a little bit of time.

[01:00:45] Speaker 07:
The district court saw the body worn camera footage.

[01:00:47] Speaker 07:
It could take into account whether that did or did not support the... Well, if I read the transcript, the district court didn't find that of any use one way or the other.

[01:00:58] Speaker 07:
The district court said it was of limited use and said it didn't contradict, however, the officer Casango's testimony.

[01:01:06] Speaker 05:
So just so we're clear, though, the point that the government's position is is what the district court did here, although arguably a surprise to defense counsel, was consistent with what the federal rules of criminal procedure contemplate.

[01:01:28] Speaker 07:
Yes, and my opponent hasn't suggested otherwise.

[01:01:31] Speaker 05:
And I think it would have been a surprise only if the district court had held the sentencing on the exact day that he raised the- Well, what I'm getting at as well is the government decides to produce probably the weakest of all of the police officers to appear, thus limiting defense counsel's ability to explore this to any real extent.

[01:01:57] Speaker 05:
And obviously, given the hostility of the parties, the defendant doesn't want to have to call a complaining witness and her grandmother.

[01:02:08] Speaker 05:
So he's stuck with whatever the government produces.

[01:02:12] Speaker 05:
And in here, I suppose, all he could have done was to ask the district court to direct the government to produce another witness.

[01:02:20] Speaker 05:
And here, I think it's obvious that the district court would not have done that.

[01:02:25] Speaker 07:
Well, all that could have been and I believe was taken into consideration by the district court that is officer Casango may not have been the one who was face to face with the complaining witness the whole time that was obvious from both the body warm camera footage and his own testimony.

[01:02:42] Speaker 07:
But the district court found the officer credible, very credible, he said, number one.

[01:02:47] Speaker 07:
Number two, the district court also did note that, of course, the defendant was available to subpoena the complaining witness and the mother.

[01:02:55] Speaker 07:
The district court made expressed reference to that and did not.

[01:02:59] Speaker 05:
Now, as the prosecutor- But no defense attorney who wants to avoid a motion for ineffective assistance is going to do that counsel, and you know that as well.

[01:03:09] Speaker 05:
So the question is, you're stuck with what the government produces, and unless you object somehow to the district court.

[01:03:17] Speaker 05:
Yeah, I'm just trying to understand what's going to happen in sentencing here on out.

[01:03:22] Speaker 07:
Well, I think what's going to happen in sentencing is this court is going to take all of these factors into consideration and decide whether or not the government met its burden and demonstrated that the information the district court was relying on was supported by sufficiently corroborating circumstances such that it was reliable.

[01:03:39] Speaker 05:
But I think Gall and other cases make clear that our role is very, very limited.

[01:03:47] Speaker 05:
And a lot of discretion is vested in the district court.

[01:03:52] Speaker 05:
And all the former limitations are basically gone.

[01:03:56] Speaker 05:
So that's why I wanted to be sure I understood, at a minimum, the government is saying, you have to give the defendant time, and you have to produce a witness, and then afford the defendant an opportunity to do what he can with that witness, and then make the best argument he can to the district court.

[01:04:17] Speaker 07:
Absolutely, and I would suggest those procedures were followed here.

[01:04:21] Speaker 02:
Well, what about the government's role?

[01:04:23] Speaker 02:
The government did not suggest a 30-month sentence at all.

[01:04:31] Speaker 02:
And did not suggest that this particular event provide a basis, did not argue for a marriage or a departure, didn't do any of that.

[01:04:40] Speaker 02:
And then when the district court showed interest,

[01:04:43] Speaker 02:
How does the government supposed to think about these things?

[01:04:47] Speaker 02:
District court's interested in probing this, which district court can do.

[01:04:52] Speaker 02:
This is going to affect somebody's liberty quite directly.

[01:04:58] Speaker 02:
How does the government come to say, let's bring the worst witness better than the best witness, the most reliable witness?

[01:05:07] Speaker 02:
How does the government come to that conclusion?

[01:05:09] Speaker 07:
Well, Your Honor, there's nothing in the record to indicate.

[01:05:14] Speaker 02:
No, I know there's nothing in the record.

[01:05:15] Speaker 02:
I'm just asking you why the U.S.

[01:05:16] Speaker 02:
Attorney's Office wouldn't take considerations and when we're offering evidence that's there to decide how much liberty someone loses, why the government doesn't

[01:05:29] Speaker 02:
say, well, let's give the most reliable direct knowledge that we can.

[01:05:35] Speaker 02:
Maybe you couldn't call it, for obvious reasons, the mother and Ms.

[01:05:40] Speaker 02:
Bernadette McQueen, but you all could have called an officer that actually had firsthand testimony.

[01:05:47] Speaker 07:
Well, Officer Casongo did have firsthand testimony, number one.

[01:05:51] Speaker 02:
Number two, the record- Do you think he was the best officer to testify to this of the three?

[01:05:57] Speaker 07:
I think as a district court concluded, he could hear everything.

[01:06:01] Speaker 02:
No, no, he's removed from it.

[01:06:06] Speaker 02:
There's lots of yelling and shouting.

[01:06:09] Speaker 02:
And so, and there were plenty of things where he was being, he was testifying as what all the officers told him.

[01:06:15] Speaker 02:
So he wasn't hearing everything that was going on.

[01:06:16] Speaker 02:
So I just don't understand why the government wouldn't

[01:06:19] Speaker 02:
say that we need to bring, you know, this is serious business.

[01:06:24] Speaker 02:
We want the district court, if it's going to decide liberty questions to rely on very reliable testimony, let's give it our best.

[01:06:32] Speaker 02:
Not the person that had the least direct contact with the witnesses.

[01:06:37] Speaker 07:
Your honor, I only disagree with the suggestion that this was some sort of strategic choice on the government's part to bring it up.

[01:06:43] Speaker 02:
That's what I'm asking is like, how does this happen?

[01:06:46] Speaker 07:
Your honor, the record is silent on that.

[01:06:48] Speaker 07:
That's all I can say.

[01:06:49] Speaker 07:
We know that the complaining witness and the mother, by the time we got to the sentencing hearing, were not cooperating with the government.

[01:06:56] Speaker 02:
Yeah, I get that.

[01:06:56] Speaker 02:
I get not calling that.

[01:06:58] Speaker 02:
But I'm just wondering, is this happening other times that the government doesn't come forward with its best evidence in hearings?

[01:07:05] Speaker 07:
Again, there could have been any number of reasons why the two officers who officers- No reasons were given.

[01:07:12] Speaker 07:
That the record is silent on that, your honor.

[01:07:15] Speaker 02:
I have a couple of other questions.

[01:07:18] Speaker 02:
First of all, do you know when his sentence at the halfway house was going to terminate?

[01:07:23] Speaker 02:
Well, we know it's September, but I didn't know the date.

[01:07:25] Speaker 02:
It must be a date somewhere.

[01:07:27] Speaker 07:
Your honor, I only saw reference to September in the government's pleading.

[01:07:31] Speaker 07:
I apologize.

[01:07:31] Speaker 07:
I don't have the exact date.

[01:07:33] Speaker 02:
Department of Corrections wouldn't have had an exact date set?

[01:07:36] Speaker 02:
They would have, right?

[01:07:38] Speaker 07:
I'm confident they would have.

[01:07:39] Speaker 07:
I just didn't see it in the record.

[01:07:41] Speaker 02:
Is that something you'd be able to get for me, for us?

[01:07:44] Speaker 07:
I'm sure I could.

[01:07:46] Speaker 02:
And do you know where he's incarcerated?

[01:07:49] Speaker 02:
Is he at a facility that specializes in mental health treatment?

[01:07:53] Speaker 07:
I don't know the answer to that.

[01:07:56] Speaker 02:
Would you be able to find that out as well?

[01:07:59] Speaker 07:
Yes.

[01:08:02] Speaker 02:
And then if my colleagues are done with the question about the variance, I really need, I do need some help understanding 5K2.

[01:08:12] Speaker 02:
because I find it rather confusing in the way it's written.

[01:08:22] Speaker 02:
When it says, it opens point one there with underlying a charge dismissed as part of a plea agreement.

[01:08:32] Speaker 02:
That means a charge that is part of and dismissed in the plea agreement, right?

[01:08:41] Speaker 06:
Yes.

[01:08:41] Speaker 02:
In this case.

[01:08:43] Speaker 02:
I'm not looking outside the case for other things.

[01:08:45] Speaker 02:
In this case, it's in the plea agreement.

[01:08:46] Speaker 02:
The plea agreement says this charge will be dismissed.

[01:08:52] Speaker 02:
And then in the next clause, when it says underlying a potential charge, not pursuing the case as part of a plea agreement, we're again talking about the plea agreement in this case.

[01:09:03] Speaker 02:
What was a potential charge in this case?

[01:09:07] Speaker 02:
Correct?

[01:09:08] Speaker 02:
Is that your understanding?

[01:09:09] Speaker 02:
Potential charge in this, when it says potential charge in the case means for our present purposes, the escape case.

[01:09:20] Speaker 07:
I'm not sure the government, I'm not sure it's cabined.

[01:09:25] Speaker 02:
Well, in the prior clause, underlying a charge dismisses part of a plea agreement in the case.

[01:09:29] Speaker 02:
What does in the case mean there?

[01:09:32] Speaker 07:
whatever the plea agreement defines the case as, is how I would look at that.

[01:09:35] Speaker 07:
That is, a defendant, as was referred to in my opponent's argument, a defendant could, even if offenses, for example, weren't joinable in one particular court, a defendant could say, well, I'm pleading to these three charges, and that's part of my plea agreement.

[01:09:56] Speaker 02:
But- That's what the language plea agreement means.

[01:09:58] Speaker 02:
What does in the case mean?

[01:10:01] Speaker 07:
Again, all I can surmise is that the plea agreement defines the scope of the case.

[01:10:07] Speaker 02:
And then does a plea agreement define this?

[01:10:09] Speaker 02:
Does in the case have the same meaning in the next clause?

[01:10:12] Speaker 02:
The plea agreement defines the scope?

[01:10:15] Speaker 07:
I think that's probably a fair reading of the statute, yes.

[01:10:19] Speaker 02:
It would be silly for in the case to mean two different things on the same line, right?

[01:10:24] Speaker 02:
Okay, all right.

[01:10:26] Speaker 02:
And since...

[01:10:29] Speaker 02:
Since the charges the district court was relying on here could not have been in the case.

[01:10:38] Speaker 02:
Right, because they would have to be under DC law capable be in charge of the same indictment or information which would bring in relate.

[01:10:47] Speaker 02:
Right, so these things could not have been in the case.

[01:10:52] Speaker 02:
absent the defendant's consent, I suppose.

[01:10:55] Speaker 02:
Correct.

[01:10:57] Speaker 07:
If only I would agree if we accept the proposition that case in that context is defined by the contours of rule eight.

[01:11:06] Speaker 02:
And I know that I'm asking you in the case, I'll go back and start where we were.

[01:11:10] Speaker 02:
Right in the case means the case.

[01:11:14] Speaker 02:
being prosecuted.

[01:11:15] Speaker 02:
In the first clause, it could be broader with the defendant's consent.

[01:11:20] Speaker 02:
In the second, it could be broader with the defendant's consent.

[01:11:23] Speaker 02:
But otherwise, it's what the plea agreement is talking about and charging.

[01:11:31] Speaker 02:
In the case, it's going to be the same thing in both cases.

[01:11:34] Speaker 02:
Sorry, shouldn't use case again.

[01:11:35] Speaker 02:
In both situations.

[01:11:38] Speaker 07:
Well, maybe I'm misunderstanding.

[01:11:40] Speaker 07:
Your honors.

[01:11:42] Speaker 02:
I might be misunderstanding what you said it might be my fault.

[01:11:44] Speaker 07:
Underlying a potential charge not pursued in the case for any other reason, of course, is why is is.

[01:11:52] Speaker 02:
And I get what for any any reason might be from trying to understand potential charge in the case.

[01:12:00] Speaker 07:
Yeah, I think that's informed by, it's not defined, case is not defined for sure.

[01:12:08] Speaker 07:
My opponent is proffering a definition of case premised on the rule eight standards.

[01:12:14] Speaker 07:
I think when you look at the legislative history of that guideline, you see that the drafters were comfortable with the understanding of the relationship between uncharged conduct

[01:12:25] Speaker 07:
and offensive conviction that had some sort of meaningful relationship between the two.

[01:12:31] Speaker 07:
And they cited Baird, they cited Kim, they cited Cross.

[01:12:36] Speaker 02:
They were dealing with a whole circuit conflict that didn't address the question I'm asking you.

[01:12:43] Speaker 02:
That was really sort of relatedness.

[01:12:45] Speaker 02:
They weren't interpreting potential charge in the case.

[01:12:50] Speaker 02:
There was no question there that those things could have been

[01:12:53] Speaker 02:
included as a lawful matter.

[01:12:58] Speaker 02:
There was no legal barrier to those being included in the case.

[01:13:01] Speaker 02:
And so the only question is, well, if the government leaves them out, and obviously isn't formally dismissing them, we're not in that situation.

[01:13:07] Speaker 02:
So if the government leaves them out, we could have

[01:13:11] Speaker 02:
brought them in.

[01:13:12] Speaker 02:
I read those cases.

[01:13:13] Speaker 02:
I didn't see it as I'm talking about, well, what if the government couldn't have even brought it in?

[01:13:17] Speaker 02:
Would it still be a potential charge in the case?

[01:13:19] Speaker 02:
And none of those were talking about that.

[01:13:21] Speaker 02:
So I understand that history.

[01:13:23] Speaker 02:
But throughout the guidelines, usually when it talks about in the case, and that also seems to be how it's talking about in the first clause here, it has to do with circumstances of the defendant or circumstances of the offense.

[01:13:36] Speaker 02:
And in this case, that at least whether it's a full relate test or not, involves a level of relatedness.

[01:13:50] Speaker 02:
And I'm asking you whether that relatedness concludes whether it even just on a plain text here could have been as a matter of law, a potential charge in the case.

[01:14:00] Speaker 02:
That's a level of relatedness.

[01:14:01] Speaker 02:
There's other things for things that could have, there's no lawful barrier to we have the different verbal formulations and this court has one too from the Smith case.

[01:14:09] Speaker 02:
But I'm asking you as a baseline, doesn't it have to be something that the law would have allowed to be a potential charge in the case?

[01:14:20] Speaker 07:
I'm just not sure the ordinary meaning of case is broader than the typical- Potential charge in the case.

[01:14:29] Speaker 02:
We're not gonna take a case out by itself.

[01:14:30] Speaker 02:
I'm looking at the phrase here.

[01:14:31] Speaker 02:
It has to be something not pursued.

[01:14:32] Speaker 02:
So that tells me it has to be something that could have been, but was not pursued.

[01:14:38] Speaker 02:
Okay, so could have been, that's why they have potential, right?

[01:14:41] Speaker 02:
Because it could have been, but wasn't.

[01:14:43] Speaker 02:
So a potential charge in the case.

[01:14:45] Speaker 02:
I'm really just, I'm just, I'm really struggling with what this language means here.

[01:14:53] Speaker 02:
And maybe one minute.

[01:14:56] Speaker 02:
Go ahead, please.

[01:14:58] Speaker 07:
I was just gonna say I don't disagree that this is difficult language to parse.

[01:15:02] Speaker 07:
It's why we have suggested that there's an alternative independent rationale for affirmance here in sort of an analogy to constitutional avoidance.

[01:15:13] Speaker 02:
There's nothing constitutional here.

[01:15:14] Speaker 07:
We don't have to come.

[01:15:16] Speaker 07:
By analogy, that is, if you have two independent grounds, as we have here, the government's position is, and Keele supports this, Simpson supports this, this court, if it agrees that the variance is properly supported, it could affirm on that ground.

[01:15:32] Speaker 07:
Because I don't disagree for one moment with your honor suggesting that this is difficult language to parse, number one, and there's very, very little case law on it, number two.

[01:15:42] Speaker 02:
The government didn't itself ask for this 5k2.21 departure in this case.

[01:15:49] Speaker 02:
Does the government agree with the district court's position that any crime committed while on escape qualifies?

[01:15:59] Speaker 02:
I think he said it's a heartland of 5k2.21.

[01:16:03] Speaker 02:
Does the government agree that any offense committed while on escape

[01:16:09] Speaker 07:
Yes, to the extent that if we're looking at the Smith sort of descriptor or logical relationship test.

[01:16:18] Speaker 07:
What Bailey instructs is that an escapee is a continuing threat to society.

[01:16:23] Speaker 07:
If we're asking whether there's a logical relationship between an escape and the offense that's committed by the escapee.

[01:16:30] Speaker 07:
as a continuing threat to society, in the government's understanding, that's a sufficient relationship pursuant to Smith as a logical relationship.

[01:16:42] Speaker 02:
So what had happened here is Mr. Brevard, while he's out on an escape status, had fallen in love, gotten married, had a child, got divorced,

[01:16:58] Speaker 02:
And six years after the escape, but while still on escape status, have not paid child support.

[01:17:04] Speaker 02:
And let's assume that like in most jurisdictions, that's a crime here.

[01:17:07] Speaker 02:
That would be sufficiently related.

[01:17:10] Speaker 07:
That's from our perspective, that's not precluded by the discretion afforded by the departure language.

[01:17:16] Speaker 02:
That would be sufficiently related in your view under our case law.

[01:17:20] Speaker 05:
Well, we may want to leave that as an open question.

[01:17:22] Speaker 05:
I mean, with fairness to the government.

[01:17:27] Speaker 02:
It's their theory, so I'm just testing their theory here.

[01:17:30] Speaker 02:
So you just said anything committed on escape is going to mean that you embrace the district court's view that any offense committed on an escape qualifies for 5K 2.21.

[01:17:44] Speaker 07:
Yeah, I think it fits into the Duluth relationship that's articulated by Smith as either a descriptive.

[01:17:52] Speaker 02:
Even if the offense itself could not be part of

[01:17:56] Speaker 02:
A potential could not as a matter of lobby a potential charge.

[01:17:58] Speaker 02:
In the case i'm curious how you can be a potential charge in a case on a matter of law, you can't be a charge in the case.

[01:18:07] Speaker 07:
You know, again, we as we've already discussed, we don't know exactly the meaning of the plain language of.

[01:18:13] Speaker 02:
I know as i'm giving you a chance to explain to me your reading.

[01:18:17] Speaker 02:
that potential charge in the case can be a charge that as a matter of law cannot be a charge in the case.

[01:18:22] Speaker 02:
Just textually.

[01:18:24] Speaker 07:
My reading is that the drafters, as I've articulated, it's commensurate with the scope of the relationship test that was... The drafters weren't thinking about this issue at all.

[01:18:34] Speaker 02:
They were dealing with a specific conflict.

[01:18:36] Speaker 02:
In fact, they never talked about the for any reason language at all.

[01:18:40] Speaker 02:
And so we don't have their understanding on this.

[01:18:44] Speaker 02:
And if we look at in the case, how that's used elsewhere in the sentencing guidelines, it does not have this type of breadth.

[01:18:51] Speaker 02:
And I haven't seen any reference where it allows something like that.

[01:18:55] Speaker 02:
It just doesn't come up with potential charge like this, where it would allow something to be treated as a potential charge in some sort of fictional world, even though as a matter of law, it could not be a charge.

[01:19:05] Speaker 01:
All right, why don't we give... I just had a couple of questions I wanted to ask just about the practicalities of Mr. Brevard's case.

[01:19:15] Speaker 01:
He walked away from the halfway house when he still had three months to serve, and did he also have a supervised release?

[01:19:24] Speaker 01:
I'm trying to figure out how this

[01:19:29] Speaker 01:
When is this sentence going to be done?

[01:19:33] Speaker 01:
This is consecutive now.

[01:19:35] Speaker 01:
So he walks away with three months.

[01:19:38] Speaker 01:
Consequences of that are surely he still has to serve the three months, but also that did he have some supervised release that's revoked?

[01:19:46] Speaker 07:
I believe, I believe that's accurate.

[01:19:48] Speaker 07:
Certainly, I would expect Mr. Axum could speak to the exact parameters of the sentence.

[01:19:52] Speaker 07:
But that's my understanding is that there was a revocation.

[01:19:55] Speaker 07:
He had 18 months remaining on his felony possession sentence.

[01:20:00] Speaker 07:
My understanding is that was revoked.

[01:20:02] Speaker 07:
And I think I understand that he's not due to be released until 2022.

[01:20:05] Speaker 07:
Yeah.

[01:20:07] Speaker 02:
All right.

[01:20:09] Speaker 02:
That's soon.

[01:20:10] Speaker 02:
I'm sorry.

[01:20:11] Speaker 02:
I had one more question.

[01:20:12] Speaker 01:
All right.

[01:20:13] Speaker 01:
So we have to ramp up at this point.

[01:20:16] Speaker 01:
I mean, seriously.

[01:20:18] Speaker 01:
No, I just wanted to know the timing.

[01:20:21] Speaker 01:
And so it's a consecutive on top of an 18 months, plus perhaps some revoked supervised release related to the underlying offense.

[01:20:29] Speaker 01:
All right.

[01:20:30] Speaker 01:
Judge Millett.

[01:20:34] Speaker 07:
I'm sorry.

[01:20:35] Speaker 03:
Did he answer?

[01:20:36] Speaker 07:
That's my understanding.

[01:20:38] Speaker 02:
I do have one other question to be pointed to Kim.

[01:20:42] Speaker 02:
And one thing Kim says that you can't do under the guidelines is impose a punishment under a preponderance standard that's greater than you could have if you were convicted beyond a reasonable doubt standard.

[01:20:59] Speaker 02:
In this case, the max sentence, as I understand it, for the assault

[01:21:06] Speaker 02:
crime and the two charges in deceased spirit, but within six months.

[01:21:10] Speaker 02:
And yet the district courts departure here was a year.

[01:21:15] Speaker 02:
Does everyone agree that at a minimum departures can't be more than what you would get if you were actually convicted of the offense under 55 K 2.21?

[01:21:23] Speaker 07:
Your honor, I can't agree or disagree with that.

[01:21:27] Speaker 07:
I don't know the answer to that.

[01:21:32] Speaker 05:
All right, let us hear from counsel for appellate.

[01:21:35] Speaker 05:
We'll give you a couple of minutes, Mr. Axel.

[01:21:39] Speaker 00:
Thank you.

[01:21:41] Speaker 00:
I would first say with regard to 5K 2.21, to the extent that there is any ambiguity, and I think that there is none, I think that case is clear.

[01:21:51] Speaker 00:
Case means the case is anyone, any court would interpret the case, the legal case.

[01:21:59] Speaker 00:
If they wanted to allow the government to define case, it would have said as charged by the government.

[01:22:05] Speaker 00:
I mean, it's very simple language.

[01:22:07] Speaker 00:
But separate aside from any ambiguity that the government's trying to inject into this, if there is ambiguity, the rule of lenity says that it must be interpreted in our favor.

[01:22:15] Speaker 00:
So that's all I'll say with regard to 5K 2.21.

[01:22:22] Speaker 00:
With regard to whether the court needs to address rule on the 5K 2.21 question,

[01:22:31] Speaker 00:
I think that it would be important in this case because the district court specifically found that 5K 2.21 applied.

[01:22:40] Speaker 00:
I've argued that there is complete overlap with the variance, but I would also suggest to the court that the district court's 5K 2.21 finding gave it confidence that a variance was appropriate.

[01:23:00] Speaker 00:
So, in a sense, if 5k 2.21 was, that finding was incorrect, it infected the court's assessment of the variance of the degree of variance.

[01:23:12] Speaker 00:
So, for those reasons, and the reasons I've already articulated, we'd ask that the court find that the hearsay evidence in this case

[01:23:22] Speaker 00:
was not sufficiently compelling to justify the 12 month variance.

[01:23:28] Speaker 00:
We'd ask that the case be remanded with instructions that either Mr. Brevard be afforded the opportunity to confront and cross-examine competent witnesses or the evidence not be considered.

[01:23:42] Speaker 05:
All right, thank you.

[01:23:43] Speaker 05:
We'll take the case under advisement.