[00:00:00] Speaker 04:
Case number 20-3059, United States of America versus Kevin Johnson at balance.

[00:00:06] Speaker 04:
Mr. Kramer for the at balance, Mr. Hobel for the at belief.

[00:00:10] Speaker 01:
Good morning, counsel.

[00:00:11] Speaker 01:
Morning.

[00:00:12] Speaker 01:
Mr. Kramer, please proceed when you're ready.

[00:00:14] Speaker 00:
Good morning, Your Honors, and may it please the court, A.J.

[00:00:18] Speaker 00:
Kramer on behalf of Mr. Johnson.

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Your Honors, the

[00:00:23] Speaker 00:
The First Step Act was signed and touted as a major reform in criminal justice and over incarceration, particularly of people of color in the federal system.

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And there were two main provisions of it that received a lot of attention.

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One of those is the compassionate release provision.

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Mr. Johnson is in now seven circuits have held

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that the guideline that existed before the first step back 1B1.13 is not binding on district courts.

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One, the 11th circuit just recently held in a two to one opinion with a vigorous dissent.

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Differently, I know very similar issues were argued before this court in the David Long case.

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And I think Judge Pillard was on that panel.

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So obviously those issues are pending.

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almost all of the issues were very similar except with respect to the Winstead issue.

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But what you have here is a 60-year-old black male with some serious health conditions who never should have been sentenced to the sentence he was sentenced to because he was not a career offender according to this court's decision in Winstead.

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So that

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In a number of courts, the government complained that, by the way, the government has not disputed that Mr. Johnson was improperly sentenced.

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It has never disputed that, although it says it hasn't agreed to it or whatever that may mean.

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It's never disputed that he was improperly sentenced because one of his two prior convictions was an attempt.

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The district court in this case clearly believed it was bound by 1 v 1.13 because it said at minimum, such reasons include at minimum those circumstances defined in the guidelines.

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So it never, it also said or comparable or analogous, but it then went through Mr. Johnson's

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without going to the Winstead issue.

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It went through Mr. Johnson's and evaluated them individually and dismissed them individually, but then never looked at the entire context of Mr. Johnson's situation.

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And of course, did not address the Winstead

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issue.

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And it's notable, I think the government clearly thought the Winstead issue was raised because in its response, its opposition to the compassionate reduced motion, it raised the exact same arguments it raises before this court in the exact same manner I should add in a footnote that it raised before this court.

[00:03:04] Speaker 01:
So one thing the government does argue with both issues

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the Winstead issue and whether the policy statement is binding is that the claims weren't raised before the district court.

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And so I know that you have arguments on both that they were raised.

[00:03:22] Speaker 01:
But if you just bear with the assumption that they weren't raised, then I didn't see an argument in your briefing that even if they weren't raised, that you still think that the claim should be heard by us and should be resolved in your client's favor under the plan error standard.

[00:03:38] Speaker 00:
I'm sorry that obviously I guess it should have been but I think it's so clear that they were raised by the district court referred twice at least twice to the fact of the cases Mr Johnson cited and what they hold and clearly understood that these issues are being raised and it was specifically raised by Mr Johnson that one be 1.13.

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was not binding that district courts had discretion to determine what are extraordinary and compelling.

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But I absolutely believe that it's plain error when seven circuits have held that the guideline is not binding and that the Winstead issue, which was just not even addressed by the district court,

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That clearly shows that he was improperly he received a sentence more than twice as high as he should have received if he if he had been properly sentenced at the beginning.

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And if anything, his situation is worse than the defendant instead because it was he was sentenced when the guidelines were mandatory whereas instead was when they were.

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advisory, but I absolutely think it's plain error if you read the statute.

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Can you speak a little bit to the third and fourth prongs of the plain error review?

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I mean, if we assume we agree with, you know, the other seven circuits that the error, you know, that there's an error here, that that's plain, can you speak to why it would also meet the third and fourth prongs of Olano?

[00:05:12] Speaker 00:
Well, again, the government has not disputed and the Supreme Court has said that when there's a guidelines error like this, it's almost always plain error because it affects the sentence.

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And I think the quotes at the end of my brief from the case Rosales Morales show what the Supreme Court thinks about the integrity of the system when people are serving longer in prison than they should be.

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There's no dispute in the briefs or in the district court that his guideline range would have been 100 to 125 months as a non-career offender.

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That's less than half.

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So I think that when somebody receives a sentence more than twice as much as what they should have received, that the integrity and the fairness and the other two prongs, the last two prongs of

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of the plain error analysis are clearly met.

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We're not directly here reviewing the sentencing, right?

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We're here reviewing the compassionate release.

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That's absolutely right.

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And the government misstates the issue.

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I'm not claiming that the sentence is illegal, although it was.

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But the claim on compassionate release is it's an extraordinary and compelling circumstance that this court later decided that

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an attempt crime cannot be a basis for a career offender guideline.

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And so I've made the government's misstated the issue.

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I'm not challenging the legality of the sentence.

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What I'm saying is it's an extraordinary and compelling circumstance when the sentence should have been less than half

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of what Mr. Johnson received.

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In the case of Rosales Morales, this court says, the public legitimacy of our justice system relies on procedures that are accurate, consistent, trustworthy, and fair.

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What citizen wouldn't bear a diminished view of the judicial process if courts refuse to correct obvious errors that threaten to require individuals to linger longer?

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Do you think that it would be an error as a matter of law

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if a district court denied a compassionate release motion in this circumstance on the Winstead issue?

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Or do you think the district court has, is it in the district court's discretion to decide whether to take that into account?

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It's the district court could take it into, yes, I think it's well,

[00:07:41] Speaker 00:
If you read the McKinney case, the McKinney case didn't decide one way the McKinney case that the district court said I can't be considered, and they said no you have to re examine that they didn't come right out and say it's there.

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They said since our laws change and one be 1.13 is not binding.

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to just dismiss it and say it's not a valid ground.

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If the district court said it's not a valid ground that I can consider as part of the analysis, I think that would be an error of law.

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If the district court said I've considered everything and I don't find this case so unusual or extraordinary or unusual, that would be a much closer case.

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But I think to say that can never be a reason in the calculus, I think would be a mistake.

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So here, Winstead is the argument you've really been focusing on.

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And it was, I would say, pretty tersely made in the district court, really mentioned only in setting up the context.

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Plus, Winstead is not categorically applicable to pre-decision cases.

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Isn't it the case that you have to point out why Winstead should apply here, even though it's not categorically applicable to sentencing that preceded it?

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And what is it about this case?

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And what's the standard that we should use in determining whether the Winstead error

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should be recognized in this case, even though it isn't a categorically applicable rule to previous sentence?

[00:09:29] Speaker 00:
I think a couple of things.

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There's a large number of 924C cases that have been deemed applicable that courts can reduce sentences because of the stacking of 924C, which was done away with in the First Step Act.

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If anything, that would be a stronger case for not applying it because Congress chose not to make that retroactive.

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Winstead, of course, is a court decision that means from the beginning that guideline was invalid in having attempted drug crimes included.

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So I don't think what I'm asking for is to be made retroactive.

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I'm not asking that at all, although the government seems to be saying that.

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What I'm saying is it can be a factor taken into account

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of whether there's an extraordinary and unusual circumstance because and that's exactly what the court and McKinney said that the district court had to examine it to take that into account because

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Again, I'm just repeating, I mean, he received a sentence twice as high.

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I'm not asking that Winstead be made retroactive.

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That's not what I'm asking.

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All I'm asking is that it be taken into account as the extraordinary unusual circumstance in combination, I might add, with all the other circumstances, including the

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quite extraordinary fact that in almost 19 years in prison, he's had one very minor disciplinary infraction.

[00:10:57] Speaker 01:
So you're not making the argument that on the Winstead issue, that it would be an error as a matter of law to deny a compassionate release motion that would have the effect of sentencing the individual as if he were sentenced in a time when Winstead was the governing law.

[00:11:13] Speaker 01:
So because if that was the argument, then it would be effectively equivalent to saying it's retroactive.

[00:11:18] Speaker 00:
Right.

[00:11:20] Speaker 00:
I have never made the argument that the district court has to do this.

[00:11:25] Speaker 00:
The district court, obviously, for whatever reason, didn't.

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And I understand, Judge Pillard, that it was terse.

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But it was quite, it said notably, there's a Winstead issue.

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He was a career offender and had a sentence enhanced.

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But had he not been the career offender under Winstead, his sentence would have been 100 to 125 months.

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I mean, it was made.

[00:11:47] Speaker 00:
The cases that are listed at the back, one of them was clearly a case about Decatur on page, I think it's page 88 of the appendix, was a case about a sentence too high.

[00:12:00] Speaker 00:
The other cases, recent cases, Mile Mile was another case where the sentence, court said you can take into account that the sentence was higher than it would have been now.

[00:12:11] Speaker 03:
So what's the standard for us in reviewing?

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Or maybe I really have two questions.

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How should a district court in looking at the Winstead question sort a case in which it shouldn't disturb the sentence from a case in which it should?

[00:12:31] Speaker 00:
Well, I think that's

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not a question you have to answer because the district court didn't address it at all in this particular case.

[00:12:40] Speaker 00:
So all I've asked is a remand for the district court to consider all the arguments under, first of all, that 1B1.3 is not binding.

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That's the threshold issue.

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But to consider all the arguments under the proper interpretation of 1B1.13

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including the Winstead issue to consider that issue.

[00:13:03] Speaker 00:
I don't think you have to set forth.

[00:13:05] Speaker 03:
I'm not proposing to set forth a standard, but I'm trying to think through how we evaluate

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what you're claiming was an error on the part of the district court, and trying to get at that by asking, if the district court considered it correctly, what would that look like to compare what it did with what you think it should have done?

[00:13:29] Speaker 03:
And what I'm hearing you say is that it should have considered all the factors together that potentially bear on compassionate release.

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But I'm particularly trying to understand how it would look at it.

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So because you answered Judge Srinivasan that it wouldn't be an error as a matter of law for the district court to deny the Wednesday compassionate release under these circumstances, I'm trying to understand where you see the district court's discretion, where and how that

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should appropriately work on remands.

[00:14:11] Speaker 00:
I think, let me give you some examples.

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Maybe a district court could say, you've got to remember in this particular case, he had two prior drug convictions, two prior felony drug convictions.

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both involving a $10 sale of drugs.

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Now, they could have been huge drug sales of kilograms, multi-kilograms, and the district court could have said, well, even though one of them's an attempt, they both involve huge quantities of drugs, and you are a kingpin, and the career offender, even though technically doesn't apply, you are a kingpin and deserve it.

[00:14:44] Speaker 00:
I think that might be appropriate.

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I think that the district court could say you have

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eight other felony convictions, which of course, Mr. Johnson only has misdemeanor convictions.

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You have eight other felony convictions, including crimes of violence, which may not have counted towards the career offender, but I'm going to do that.

[00:15:03] Speaker 00:
The district court could have said your range, you have

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20 disciplinary violations in the past two years.

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So I think the fact that you were incorrectly said, so there could be a whole host.

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The problem in this case, of course, is that the district court didn't address it at all.

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So I think there could be reasons.

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There could be, obviously, I think Mr. Johnson's case clearly qualifies for

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that it's extraordinary unusual or, but there could be cases where it's not for whatever reason, but Mr. Johnson's is quite stark.

[00:15:41] Speaker 00:
He has two $10 drug sales.

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One was an attempt and one was an attempt and they increased as a result, he got more than twice as much on the low end of the guidelines than he would have been if he had been properly sentenced at the time.

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So I hope that answers your question, I think.

[00:16:03] Speaker 03:
Helpful.

[00:16:04] Speaker 03:
Thank you.

[00:16:05] Speaker 01:
Thank you.

[00:16:06] Speaker 01:
Unless my colleagues have further questions for you at this time, we'll hear from the government and we'll give you some time for rebuttal.

[00:16:11] Speaker 02:
Thank you, Your Honor.

[00:16:12] Speaker 01:
Mr. Hobel.

[00:16:14] Speaker 02:
Thank you.

[00:16:14] Speaker 02:
May it please the court, Mark Hobel for the United States.

[00:16:17] Speaker 02:
The district court did not treat the policy statement as binding.

[00:16:22] Speaker 02:
It treated the policy statement as helpful guidance, but also recognized that there might be an expanded set of circumstances that could be extraordinary and compelling.

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That's not error under any standard of review in any circuit that has looked at this issue.

[00:16:36] Speaker 02:
And it's also what the defendant asked the district court to do.

[00:16:40] Speaker 01:
So the government made the argument that the policy statement was binding, right, to the district court?

[00:16:47] Speaker 02:
I believe in a footnote, yes.

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I think the defendant said apply the criteria in the policy statement.

[00:16:58] Speaker 02:
The government said, yes, we agree and included a footnote that indicated that it remains binding, although it mentions the language of the policy statement is upon motion of the BOP director.

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And the district court recognized that it needed to start with the policy statement as guidance, a frame of reference, but that it also recognized there could be.

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It gave the defendant sort of the benefit of the doubt on this question and said, let's start there.

[00:17:23] Speaker 01:
I guess what would be surprising to me a little bit is that if the government made the argument, which I think the government did, that the policy statement is binding, if the district court actually thought it wasn't binding, I guess I would have expected the district court to reject the government's argument.

[00:17:37] Speaker 01:
And I didn't see that I think there is some language I grant you there's some language in the district court's opinion.

[00:17:42] Speaker 01:
That you could look at and say, well, he said, at a minimum, and at a minimum, I mean, in some ways can cut in either direction here, I understand why both sides are using that language.

[00:17:51] Speaker 01:
And there's some there's the language about we're going to take into account.

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there's decisions that have taken into account analogous circumstances.

[00:17:58] Speaker 01:
I'm not sure that necessarily means the policy statement isn't binding either.

[00:18:01] Speaker 01:
It could just mean the policy statement is binding, but the policy statement allows for taking into account analogous circumstances.

[00:18:06] Speaker 01:
I guess what would be a little bit surprising to me is if the government agreed that the policy statement is binding, that the district court would have thought it wasn't without saying so, without saying I'm rejecting the government's argument that the policy statement is binding.

[00:18:19] Speaker 02:
I agree with your honor that if this was a hotly contested issue and the parties had taken opposing positions on whether the policy statement is binding, you'd expect the district court to address it more fulsomely.

[00:18:30] Speaker 02:
But that's not what happened.

[00:18:32] Speaker 01:
But then he would be rejecting both of your arguments.

[00:18:36] Speaker 01:
I'm not sure I understand how that helps you because if you're saying that both parties were operating the assumption that the policy statement is binding, then all the more surprising that the district court wouldn't have said, I disagree with both parties.

[00:18:49] Speaker 02:
And again, I think it just goes back to this was not an issue that the defendant, despite the fact that there were plenty of district court opinions at this point that addressed this issue, that the defendant made an issue.

[00:19:03] Speaker 02:
I think the defendant affirmatively- Yeah, that's the plain error argument.

[00:19:06] Speaker 01:
That I understand is that's the argument that the defendant didn't flag it and therefore plain error applies, which is I think a different argument though than saying that the district court never thought it was bound to begin with.

[00:19:15] Speaker 02:
Right.

[00:19:16] Speaker 02:
Well, I think that are bound to begin with argument just is based on the plain language of the district court's opinion, which is that it recognized that it quoted explicitly to a case, United States v. Fox from the District of Maine, which itself, and we noted this in our brief itself, says the policy statement is not binding but is helpful guidance.

[00:19:38] Speaker 02:
It said there is a more expansive set of circumstances beyond just the

[00:19:44] Speaker 02:
the specifics of the policy statement they could look at.

[00:19:47] Speaker 02:
But even under that more expansive set of circumstances, the defendant's medical conditions in COVID-19 don't qualify as extraordinary and compelling.

[00:19:56] Speaker 02:
So I think just based on a plain read of the district court's opinion, it's using the policy statement as guidance, but not as binding.

[00:20:07] Speaker 02:
And I know that the defendant has pointed to the use of minimum.

[00:20:11] Speaker 02:
And I think that

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The way to read minimum in there plainly is that the district court felt that extraordinary and compelling reasons for a sentence reduction were at a minimum those in the policy statement, but could include others not specifically enumerated there.

[00:20:29] Speaker 02:
Start with the frame of reference of the policy statement.

[00:20:32] Speaker 02:
Think more expansively, especially in light of COVID-19, which is not something that the policy statement writers anticipated.

[00:20:40] Speaker 03:
Mr. Hopel, what do you make of the district court's failure to address the Winstead argument?

[00:20:47] Speaker 03:
I mean, one reason might be that it wasn't clearly enough raised.

[00:20:54] Speaker 03:
So we would review that for clear error only, for plain error only.

[00:20:58] Speaker 03:
And the other might be that it would only fall in the catch-all

[00:21:06] Speaker 03:
And if the if the policy statement were binding, and it wasn't something identified by the Bureau of Prisons, it would be off the table for that reason.

[00:21:16] Speaker 03:
What's your view of why the district court didn't get there.

[00:21:22] Speaker 02:
I think both of those propositions are true, Your Honor.

[00:21:25] Speaker 02:
I think why the district court didn't get there is because it wasn't raised.

[00:21:30] Speaker 02:
Your Honor referred to it as terse.

[00:21:32] Speaker 02:
I think, respectfully, that even overstates it.

[00:21:37] Speaker 02:
It is a mention of the, quote, Winstead issue in the defendant's statement of facts.

[00:21:42] Speaker 02:
There's no mention of it in the argument section.

[00:21:44] Speaker 02:
There

[00:21:44] Speaker 02:
isn't even a mention of it in his discussion of the 3553A factors, which is where you'd expect something like the length of his sentence and the fact that if he'd been sentenced after Winstead, he would not have been sentenced as a career fighter.

[00:22:00] Speaker 02:
You would expect that to be in there.

[00:22:01] Speaker 02:
There wasn't even any discussion in the 3553A factors.

[00:22:05] Speaker 02:
So I point the court actually to Mr. Kramer and his

[00:22:12] Speaker 02:
And his 28 jail letter earlier this week cited to the Seventh Circuit's recent decision in the United States to be Newton.

[00:22:18] Speaker 02:
And in that case, the Seventh Circuit said, at a minimum, the district court's analysis must give us reasonable assurance that it at least considered the prisoners principle arguments.

[00:22:31] Speaker 02:
This wasn't a principle argument that he raised.

[00:22:34] Speaker 02:
This wasn't an argument that he raised at all.

[00:22:37] Speaker 02:
He touched on it in passing.

[00:22:38] Speaker 02:
The government responded to it in a footnote in the section of our brief dealing with the 3553A factors, indicating that the government certainly wasn't aware on notice that as he now claims, it was an extraordinary and compelling reason.

[00:22:56] Speaker 02:
I think it's

[00:23:00] Speaker 02:
I think to a certain extent, the defendant is recasting his claim before this court.

[00:23:07] Speaker 02:
He is not challenging the factual determination that the district court made that his medical conditions do not reach the standard of extraordinary and compelling reasons.

[00:23:18] Speaker 02:
especially in light of the fact that he's now been vaccinated.

[00:23:22] Speaker 02:
And he is trying to raise this Winstead claim for the first time here without really grappling with the hard questions that I think this court has raised.

[00:23:35] Speaker 02:
I think at some point, Mr. Kramer said, you can send that, you know, you don't need to address

[00:23:41] Speaker 02:
the issue of when a defendant is entitled to relief under Winstead.

[00:23:47] Speaker 04:
I think this is- Mr. Hobel, can I ask you, if we were to agree with the other circuits that the policy statement here isn't binding, and we also thought the district court was at least unclear about whether it considered itself bound, in those circumstances, and I understand you don't agree with that, but in those circumstances, would we need to remand?

[00:24:09] Speaker 02:
No, and I think that this goes to Your Honor's question to my opponent on the third and fourth prongs of plain error.

[00:24:20] Speaker 02:
There really hasn't been a showing here of actual prejudice or that this undermines the integrity of the proceedings.

[00:24:29] Speaker 02:
I mean, maybe most fundamentally when it comes to those prongs, this is the law that the defendant asks the court to apply.

[00:24:38] Speaker 02:
The very first argument in his motion, if you look at his compassionate release motion, the very first legal argument he makes is, I satisfy the policy statement criteria.

[00:24:48] Speaker 04:
Well, but that's not about prejudice and also the fourth prong.

[00:24:52] Speaker 04:
So maybe speak to those questions.

[00:24:55] Speaker 02:
Right.

[00:24:55] Speaker 02:
I think it is his burden to show that if the district court had not treated the policy statement as binding, there's a reasonable probability of a different outcome here.

[00:25:10] Speaker 02:
I think given the district court's

[00:25:16] Speaker 02:
discussion of his medical conditions.

[00:25:19] Speaker 02:
And the district court didn't, in its discussion of his medical conditions, it doesn't refer back to the policy statement.

[00:25:27] Speaker 02:
It consistently says, and we make this point in our brief, it consistently says that those don't satisfy extraordinary and compelling reasons under the statute.

[00:25:36] Speaker 02:
So it's, and it compares the

[00:25:40] Speaker 02:
it compared Johnson's conditions to other defendants who have received compassionate release under sort of a holistic cumulative standard that the defendant is saying the court didn't do, compared it holistically to other defendants during the COVID-19 pandemic and said these conditions don't rise to that level.

[00:26:01] Speaker 02:
So I think that the defendant just hasn't shown that

[00:26:08] Speaker 02:
if the district court had more clarity that no, the policy statement really isn't binding, although you can still look at it for guidance, that it would have come to a different outcome on his medical conditions.

[00:26:20] Speaker 01:
Can I ask the question this way?

[00:26:22] Speaker 01:
So suppose the district court says, I'm just giving you a hypothetical, I'm not saying this is what the district court said, but suppose what the district court said in a case like this is,

[00:26:31] Speaker 01:
I have a motion before me for compassionate release.

[00:26:35] Speaker 01:
I understand that it raises some questions about the medical conditions of the movement and I understand that there's a Winstead claim before me.

[00:26:45] Speaker 01:
I don't have to consider either of those because the policy statement is binding and neither of those states a ground for relief under the policy statement.

[00:26:55] Speaker 01:
So therefore I'm denying the motion under the policy statement.

[00:26:59] Speaker 01:
And then if it comes up on appeal and we say, per the seven other circuits, it's actually not binding, then what happens on prongs three and four?

[00:27:11] Speaker 01:
And I'm assuming the claim wasn't raised that it's not binding in the district court.

[00:27:14] Speaker 01:
Then what happens on prongs three and four when the district court has said, the reason I'm denying relief is because the policy statement is binding.

[00:27:21] Speaker 01:
It turns out that's wrong.

[00:27:22] Speaker 01:
And the district court just has said, I'm not saying what's going to happen if the policy statement weren't binding.

[00:27:26] Speaker 01:
I might have granted relief, I might not have.

[00:27:28] Speaker 01:
OK.

[00:27:29] Speaker 02:
Yeah, I understand the question.

[00:27:31] Speaker 02:
It's still his burden to show that there's a reasonable probability that his compassionate release motion actually would have been granted.

[00:27:38] Speaker 02:
So there may be facts that say, the district court may have made comments to the effect of, I'd like to, I think this sentence, I think you're a good candidate, but the policy statement just prevents me from doing it.

[00:27:51] Speaker 02:
I think in that case, in that hypothetical, you'd have a pretty good argument.

[00:27:55] Speaker 02:
I'm probably three or four.

[00:27:57] Speaker 03:
I think if they just- What about, is it Mendoza Martinez, where we say a guideline error, and I understand that's a calculation of length, but a guideline error is presumptively prejudicial, except in extraordinary circumstances.

[00:28:13] Speaker 02:
Right, so I think when you're talking about, and I think your honor may be talking about the actual sentencing context as opposed to compassion release, and in sentencing,

[00:28:24] Speaker 02:
because of the role that the guidelines play of orienting or the very start of the process to give the guidelines range.

[00:28:36] Speaker 02:
If you get sentenced at the midpoint of the guidelines range and it turns out that it's the wrong guidelines range and it should have been down here, there's sort of this, the Supreme Court has said there's sort of this presumption that you probably would have been midpoint

[00:28:51] Speaker 02:
of the lower guidelines range.

[00:28:54] Speaker 02:
I don't think that this situation is analogous because I think there are the

[00:29:08] Speaker 02:
I don't think the presumption applies in the same way.

[00:29:11] Speaker 02:
I think that the defendant still has to show some, make some showing that there was some reasonable probability of a different outcome here.

[00:29:24] Speaker 02:
So I see my time has expired.

[00:29:26] Speaker 02:
So we'd ask the court to affirm the district court.

[00:29:28] Speaker 02:
Thank you, Your Honor.

[00:29:29] Speaker 01:
Thank you, Mr. Hobel.

[00:29:31] Speaker 01:
Mr. Cramer, we'll give you two minutes for rebuttal.

[00:29:35] Speaker 00:
Thank you, Your Honor.

[00:29:37] Speaker 00:
A few things.

[00:29:38] Speaker 00:
First of all, despite having the entire time to argue, they have never disputed that Mr. Johnson was improperly sentenced as a career offender.

[00:29:47] Speaker 00:
So they essentially were not admitting it.

[00:29:51] Speaker 00:
They have not challenged that.

[00:29:53] Speaker 00:
If you look at page 91 of the appendix, after citing about 25 or 30 cases saying that the district courts had broad discretion that

[00:30:04] Speaker 00:
Mr. Johnson said, as these cases illustrates, now the courts are no longer constrained by the BOP's narrow interpretation of extraordinary and compelling reasons.

[00:30:14] Speaker 00:
They have embraced their broad discretion under 3582 to grant compassionate release.

[00:30:19] Speaker 00:
Again, it seems to me he clearly raised the issue, and we don't have to talk about plain error.

[00:30:26] Speaker 00:
But even if

[00:30:29] Speaker 00:
the district court had considered the fact of the medical issues and the fact that his sentence was more than twice as much as was required under the mandatory guidelines.

[00:30:39] Speaker 00:
There clearly is a good chance the district court would have granted the motion for compassionate release under all the circumstances.

[00:30:48] Speaker 03:
You can't, it's- Mr. Kramer, I should have asked this of Mr. Hobel as well.

[00:30:55] Speaker 03:
Can an incarcerated individual bring more than one motion for compassionate release?

[00:31:01] Speaker 03:
And this might bear on the question of preservation.

[00:31:04] Speaker 03:
Is there anything to prevent him from coming back to the district court and saying, oh, I didn't really explain exactly what I meant, look at this Winstead problem?

[00:31:17] Speaker 00:
No, there is not anything to prevent him.

[00:31:19] Speaker 00:
As far as I know, you can make one a day or more.

[00:31:22] Speaker 00:
But the problem is the procedural mechanism

[00:31:25] Speaker 00:
that it has to be, you have to wait 30 days after you present it.

[00:31:29] Speaker 00:
So you get a built-in delay unless a defendant submits a request daily.

[00:31:34] Speaker 00:
I guess you get a built-in delay of 30 days.

[00:31:39] Speaker 00:
And that's the problem.

[00:31:42] Speaker 00:
But there is not a limit in the law about how many can be filed.

[00:31:48] Speaker 03:
By the way, the government's- Do you mind if I just confirm with Mr. Hobell if he agrees?

[00:31:51] Speaker 03:
I should have asked that before.

[00:31:54] Speaker 01:
Sure.

[00:31:54] Speaker 03:
Is that right that there isn't any bar on bringing an additional motion for compassionate release if the individual?

[00:32:02] Speaker 02:
That's correct.

[00:32:03] Speaker 02:
The exhaustion requirement still applies, but there's no second or successive bar.

[00:32:08] Speaker 00:
Thank you.

[00:32:11] Speaker 00:
The only other things I wanted to say was the government talks about how they responded to the Winstead argument.

[00:32:16] Speaker 00:
It was almost identical at

[00:32:17] Speaker 00:
about how they responded to it in their brief, even though it was raised fully in the briefs.

[00:32:22] Speaker 00:
They did a short footnote saying it can't be considered at all in compassionate release.

[00:32:28] Speaker 00:
And then lastly, they said, although it's not part of the record that Mr Johnson has been vaccinated, but I opened my sports section today and saw that eight members of the Yankees who have been fully vaccinated have come down with COVID.

[00:32:43] Speaker 00:
Well, I feel bad for them as individuals.

[00:32:45] Speaker 00:
I don't feel bad for them as

[00:32:46] Speaker 00:
as the Yankees, but clearly the fact that people have been vaccinated is not a, as eight members of a professional sports team have come down with COVID have tested positive.

[00:33:01] Speaker 00:
It's not, and in any event, it would be something for the district court to consider on remand that issue.

[00:33:10] Speaker 00:
But I would ask your honor to remand it.

[00:33:13] Speaker 00:
First of all, on the 1B1.13 issue,

[00:33:16] Speaker 00:
in absolutely remandful consideration of the Winstead issue that was raised, they said that his sentence would have been substantially laress and now I'm just repeating myself and I apologize, but thank you very much.

[00:33:32] Speaker 01:
Thank you, council.

[00:33:33] Speaker 01:
Thank you to both council.

[00:33:34] Speaker 01:
We'll take this case under submission.