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Case number 21-3005, United States of America versus Lorenzo Turner at balance.

[00:00:06] Speaker 01:
Ms.

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Wright for the appellant, Ms.

[00:00:08] Speaker 01:
Colu for the appellee.

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Ms.

[00:00:11] Speaker 04:
Wright, good morning, and it's really good to see you.

[00:00:15] Speaker 04:
It's good to see an old hand.

[00:00:18] Speaker 04:
Thank you.

[00:00:19] Speaker 03:
Speaking of old.

[00:00:22] Speaker 01:
All of us, it's a whole panel.

[00:00:25] Speaker 00:
Hi, Ms.

[00:00:26] Speaker 00:
Wright, how are you?

[00:00:27] Speaker 01:
I'm good, thank you.

[00:00:30] Speaker 01:
Good morning.

[00:00:30] Speaker 01:
May it please the court.

[00:00:32] Speaker 01:
Lisa Wright for Mr. Lorenzo Turner.

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I'd like to reserve two minutes for rebuttal.

[00:00:38] Speaker 01:
This case does not involve a court's authority to impose consecutive sentences on revocation of supervised release, nor does it involve the court's authority to impose a sentence above the revocation guideline range.

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Clearly a court can do that so long as it recognizes that it is varied from the

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range and gives a sufficient reason for doing so.

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Rather, the issue here is what is the guideline range?

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How is it calculated when there are multiple terms of supervised release and each was violated by identical conduct?

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The government contends that the guideline range in the Chapter 7 table essentially represents a per count

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range and may be imposed either consecutively or concurrently as the judge chooses without exceeding the range.

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But what we have to remember is that in promulgating the guidelines, the Sentencing Commission made the policy choice to look behind the form of the charges and to the substance of the actual conduct and to come up with a range

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that was applicable to all the conduct so that's always the way the guidelines work you you figure out what the conduct is there may be different groups of conduct that are like counts together and then together you even if there's multiple groups, you still come up with one number that is the total punishment that goes on each count.

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And

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So the history and purpose of structure of the guidelines, as well as the specific text of the chapter seven, make clear that the range that's provided in the chapter seven table is the recommended total punishment for all the violation conduct.

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And because the same conduct created the same breach of trust for all the counts here, for purposes of figuring the defendant's guideline range,

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the Sentencing Commission has provided the same advisory range, whether a defendant has one term of supervised release or 50 or 100 terms of supervised release.

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You don't doubt that the trial judge has the authority in the sentencing to use consecutive as opposed to concurrent on the supervised release?

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On the revocation sentence?

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Yeah, on the revocation sentence.

[00:03:09] Speaker 01:
There certainly has a statutory authority to stack sentences, but they may need to give a reason to vary over the guideline range.

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It's really odd to say that a judge has the authority to do that, that is to elect for consecutive, but must sentence as if concurrent.

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And which explains, and I think that's the bottom line explanation for why every circuit has gone

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You're right.

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I happen to agree with Judge Berzon.

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It doesn't make a lot of sense.

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So maybe I'm kind of agreeing with you.

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It doesn't seem to make a lot of sense.

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But the problem is for us to run up against six, seven circuits, all of whom have said, look, the trial judge can go consecutive.

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Smith doesn't help you because Smith took it the other way.

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So they end up with a result that looks favorable to you.

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It's not really favorable in terms of the law.

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They just use an approach that works for you.

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but every other circuit has gone the other way.

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It'd be very rare for us to say, now we're gonna, when you admit that the statute allows consecutive sentences.

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But I mean, the question, the guideline is overlaid on top of the statute.

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It's a whole separate structure of- The truth is the guideline doesn't tell us how to answer this question.

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And it really is an oddity to say a judge can have consecutive sentences

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or concurrent, and if the judge chooses consecutive, the judge is then bound to sentence as if it's concurrent.

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And that makes sense.

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Because that's what you're essentially saying.

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The judge can pick consecutive sentences, but must sentence as if they're concurrent.

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I'm saying the statutory max.

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is the statutory max of each one stacked on top of the other.

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First of all, we're just, we're conceding that for purposes of this appeal, that the statutory max is that, but just as in ordinary sentencing and the first time around for imprisonment, there's many, you can always stack everyone's statutory max up to a hundred years.

[00:05:24] Speaker 01:
The question is, what's the guideline range?

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And all we're saying is this is outside the guideline range.

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which is just a totally different question.

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And I would suggest that like the, I would, I guess, point the court to the, you know, the, when you deal with multiple counts under the guidelines, I guess it's chapter, well, chapter five, we talked about the probation officer ultimately did point to that and say the total punishment.

[00:05:51] Speaker 01:
But if you look at the multiple count provision, which is three, three D multiple counts,

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It's very clear that what they're trying to do in the guidelines is quote, provide rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.

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And the introductory commentary says, in order to limit the significance of the formal charging decision and prevent multiple punishments for substantially identical offense conduct, this part provides rules for grouping offenses together

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In essence, counts that are grouped together are treated as constituting a single offense and conduct violating multiple terms of supervised release.

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I'm arguing now is exactly the sort of conduct the guidelines treat as a single offense because they say, quote, all counts involving substantially the same harm shall be grouped together into a single group.

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The guidelines look at the conduct, not the counts.

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They look at the substance, not the form.

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I mean, I don't,

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Why are six or seven circuits all going the other way?

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They're answering a totally different question about that.

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Well, let's assume you're right on that, that there's murky thinking and different questions.

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The result is exactly the opposite of what you're urging.

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And not one single circuit, even Judge Berzon, who's totally in your corner, says, I can't get there because there is statutory authority for a trial judge

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to sentence consecutively or concurrently.

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And what she's recognized is what bothered me as I was reading this stuff.

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If you choose to do it consecutively, it makes sense that you would put a sentence on each one of those offenses that has been pulled out and is now looked at consecutively.

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If it's concurrent, then you get the kind of result that you want.

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So and the problem is the law, at least as every circuit has seen it, is the judge has the option to go either way.

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Every circuit has seen it this way.

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For statutory max purposes.

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And I guess I would urge the court not to focus on concurrent consecutive, but focus on.

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Well, but I don't know how to do it otherwise, because you end up with the irony in your approach.

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You end up with an ironic situation where a judge has the authority to sentence consecutively.

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And if that is the case, it seems to me perfectly plausible that the judge has the right to put a sentence, the guideline sentence, on each one of those counts that's there.

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And that's what every circuit has done.

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But that's not how the guidelines work.

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Except the guidelines, I wish the guidelines gave an answer to that question.

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They don't.

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And that's why every circuit, and I'm going to stop and let you answer, every circuit has said, no, you got to go to the statute.

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And the statute allows the judge to do this.

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The guidelines weren't an issue in any of those cases.

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And I suspect it's because the judges gave reasons.

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And so the defense attorneys in those cases didn't make the argument I'm making.

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I'm making a completely different argument.

[00:09:05] Speaker 00:
Oh, no.

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As a matter of fact, in a couple of you know this as well as I do, in a couple of those decisions, the judge made it very clear that this is a within guidelines

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They were all saying, this is within guideline.

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It's consecutive.

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The within guideline refers to each count.

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That's what they're saying.

[00:09:23] Speaker 01:
Well, there was one where the district judge did say that, but that issue was not raised on appeal.

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And I think that's exactly what Judge Berzon is saying, in essence.

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They're within guideline, even though she thinks it's completely crazy.

[00:09:39] Speaker 01:
Well, in Badgett was the only case I saw where an appellate court said this is a within range sentence and they relied on the wrong guideline.

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They relied on 7E1.1F, I believe it is, that is talking not about multiple counts at the same time, but saying you're to make it consecutive.

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with any sentence you're already serving.

[00:10:03] Speaker 01:
So that was just a mistake by the Fifth Circuit.

[00:10:05] Speaker 01:
That's just clearly wrong.

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And that's the same mistake the probation officer made at the beginning that got the judge here confused and got off on the wrong foot with focusing on consecutive or concurrent.

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And really we should just be asking, what is the total punishment that the commission has set here?

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And they've come up with a table that asks for you to look at it by violation.

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And they've said very clearly in chapter three that you group

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counts with the same harm together as one group and one offense, essentially.

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And the harm here is the same, it's the same breach of trust, whether you have 10 counts or two counts or what have you.

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So I guess, to me, it's perfectly analogous to the way the guidelines overlay on top of the ordinary statutory maximums.

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And I really think that we got off on the wrong foot below with the consecutive current question,

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we wouldn't actually disagree that the judge could have given six plus six consecutive, and we wouldn't be appealing that.

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We don't have a problem with the concept of consecutive sentencing.

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It's just that the total punishment has to stay within the range, or you just have to give a reason.

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And we don't have a problem with going over the 12.

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So your key terms is just that the total punishment.

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And that isn't normally the way you look at sentencing when you're doing

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when if you can a sentence consecutively.

[00:11:35] Speaker 01:
Well, that is the way the guidelines are set up entirely they made that choice to not look at it count by count, but to say let's group together everything with like harm and treat it as one thing and we're going to come up

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with one punishment.

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So if you have a gun and drugs, the gun is an offense characteristic for the drug.

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So it meets the requirement to be grouped with the gun.

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So at the end of the day, you end up with a giant range that applies to both those together.

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And it goes on to both of them.

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That's just the way the guideline, the choice the commission made.

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And in that situation, can you sentence consecutively?

[00:12:13] Speaker 01:
You're not supposed to under 5G 1.2.

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In the hypothetical you just gave, the gun and drugs, can you sentence consecutively?

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You can, but you can't.

[00:12:23] Speaker 00:
And that means that you're going to get a different sentence for the drugs and for the gun, right?

[00:12:29] Speaker 00:
No.

[00:12:30] Speaker 01:
Well, I'm saying say the range is 150 is the top of the range.

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The judge wants to give the top of the range.

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The judge is supposed to under 5G give one.

[00:12:39] Speaker 01:
Well, say it's

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120 because that's the statutory maximum for the gun.

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The judge wants to give 120.

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The range is 120.

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This judge under 5G 1.2 is supposed to give 120 plus 120 concurrent.

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That's what's recommended.

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But the judge could give 60 plus 60 consecutive.

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And I don't think that would, it benefits the government to have the concurrent, to have the sort of double layer of protection there.

[00:13:05] Speaker 01:
That's for the government's protection or concurrency.

[00:13:09] Speaker 01:
But the point is, is it over 120?

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The judge can structure it how it wishes.

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It's recommended.

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It's told an advisory statement by the commission says, do it concurrently.

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Give the whole punishment on everything.

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But obviously that's advisory.

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If the judge feels strongly, no, I don't want to give you 120 plus 120 concurrent.

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I want to give you 60 plus 60.

[00:13:32] Speaker 01:
That's okay.

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But if he gives 121, or if he gives 61 plus 60, now we've varied over the range.

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And it's really not about the consecutive concurrent, but it's about how much time have you gotten.

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And that's just the way that, it's our position that that's just the way it's set up.

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And I would urge the court to look at 3C.

[00:13:55] Speaker 03:
Yes.

[00:13:56] Speaker 03:
Can I, this discussion you're having with Judge Edwards has been really pretty helpful.

[00:14:03] Speaker 03:
Would it be fair for me to say that what your response to him boils down to is that true, the sentencing judge has the authority to sentence consecutively under the statute.

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That's number one.

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And it's true that the guidelines are silent on the precise issue we have here, namely where there's more than one supervised release term.

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But you think that what drives the result here is that the consequence of this, of consecutive sentencing here is completely inconsistent with the purposes of the guidelines, right?

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That there should be like punishment for like offenses independent of the prosecutorial decisions, the charging decisions of the prosecutors, right?

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That is definitely, yes, part of it.

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What do you mean part of it?

[00:15:02] Speaker 03:
I thought that was your case.

[00:15:03] Speaker 01:
But it is.

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But I also think that it's not entirely silent.

[00:15:06] Speaker 01:
If you don't look at it.

[00:15:08] Speaker 01:
Well, I guess I'm not.

[00:15:10] Speaker 03:
What's not tight?

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What do you rely on for the proposition that the district court?

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What in the guidelines says that our district court has to impose only concurrent sentences when the defendant's serving concurrent

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terms of supervisory.

[00:15:30] Speaker 01:
Again, my argument isn't really about concurrent consecutive as much as it is at whichever way you do it, how much punishment is person getting and for that I point to 3D 1.2 groups of closely related counts.

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All counts involving substantially same harm shall be grouped together into a single group.

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And so

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That is telling us that's how we read the table in 7b.

[00:15:55] Speaker 03:
Is that in 7b?

[00:15:57] Speaker 03:
Sorry.

[00:15:58] Speaker 01:
No, that's in chapter three.

[00:16:00] Speaker 03:
That's exactly right.

[00:16:02] Speaker 03:
Yeah, it's not in seven.

[00:16:06] Speaker 03:
That deals with sentencing, right?

[00:16:09] Speaker 03:
Not violations of supervised release.

[00:16:11] Speaker 01:
This is a sentencing as well.

[00:16:12] Speaker 01:
I agree it's in chapter three, not in chapter seven, but I think that I don't know why that wouldn't apply.

[00:16:19] Speaker 01:
when you have the exact same breach, one single harm, one single conduct, and that's the whole philosophy behind the way the guidelines are set up.

[00:16:30] Speaker 01:
Why would it suddenly be different?

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And if nothing else, I would also point to the rule of lenity.

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If there's some silence here and it's not clear, I would think we would err on the side of making the total punishment

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the number in the table, not the number in the table times the number of counts, which could end up with a ridiculous number.

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If you had 20 counts here, you would have a 240 month maximum.

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And admittedly, there's a statutory maximum that would be quite high.

[00:17:03] Speaker 01:
Just like there is in my drug and gun example, the drugs might have a statutory maximum of 40 years and the gun would have 10 years.

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So you would have a 50 year statutory max

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but you just don't worry for guideline purposes.

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We just don't care about that.

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We just try to figure out what is the range.

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And then, as I said, the commission encourages you to do them concurrently, and that's frankly a protection for the government.

[00:17:29] Speaker 01:
But if they wanted to go against that advice and do it consecutively, they could.

[00:17:34] Speaker 01:
The question is just don't go over the top of the range without a reason.

[00:17:39] Speaker 01:
That's what I'm saying.

[00:17:42] Speaker 04:
All right, any more questions?

[00:17:44] Speaker 04:
All right, then we'll hear from Miss Kalu.

[00:17:50] Speaker 02:
Good morning and may it please the court, Chief Nam So Kalu on behalf of the United States.

[00:17:56] Speaker 02:
We would ask this court to affirm the district court's judgment in this case.

[00:18:01] Speaker 02:
The district court imposed a within guideline sentence

[00:18:04] Speaker 02:
for each of appellants individual terms of supervised release that is upon revoking both terms of supervised release the court appropriately looked to the guidelines for each individual term and as.

[00:18:20] Speaker 02:
as Pellant has agreed, the court had the statutory authority to do so.

[00:18:25] Speaker 02:
And the government also believes that the guidelines suggest that the court, in fact, contemplate that the court can sentence consecutively upon revocation of concurrent terms of supervised release for a couple of different reasons.

[00:18:43] Speaker 02:
So in the court's discussion with

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With Miss Freight, there was discussion of the phrase total punishment and the idea that a sentence should reflect the total punishment.

[00:18:59] Speaker 02:
That phrase comes from chapter five of the guidelines, which addresses the imposition of the original sentence in the case.

[00:19:09] Speaker 02:
And there's also reference to chapter three of the guidelines.

[00:19:13] Speaker 02:
The phrase total punishment does not appear anywhere in chapter seven of the guidelines.

[00:19:20] Speaker 02:
And in fact, we would argue that the revocation table in 7B1.4A suggests that courts should be looking on an offense by offense basis.

[00:19:32] Speaker 02:
In particular, under the A2 of that revocation table,

[00:19:39] Speaker 02:
there's a reference to a different set of guidelines for Class A felony.

[00:19:49] Speaker 02:
In other words, we don't think it would make sense for the revocation table to make reference to different types of offenses if the district court were not meant to affirmatively look on an offense.

[00:20:03] Speaker 03:
I just want to ask you a question.

[00:20:05] Speaker 03:
You referred to the revocation table

[00:20:08] Speaker 03:
Section CB 1.4, you cited that.

[00:20:10] Speaker 03:
But there's only two variables in that table.

[00:20:16] Speaker 03:
The grade of the violation and the criminal history category.

[00:20:22] Speaker 03:
It doesn't say anything about the number of violations at all of the supervisor lease terms.

[00:20:30] Speaker 03:
That's all it says.

[00:20:31] Speaker 03:
That's all you look at.

[00:20:32] Speaker 03:
It doesn't say anything about the number of underlying

[00:20:38] Speaker 03:
supervised release terms that the person served.

[00:20:42] Speaker 02:
It doesn't specifically, Your Honor.

[00:20:45] Speaker 02:
Doesn't it?

[00:20:46] Speaker 03:
Yeah, I know it doesn't.

[00:20:48] Speaker 03:
It clearly doesn't.

[00:20:49] Speaker 03:
So isn't that completely inconsistent with the argument you're making that the district court should take account of a third factor, one that's not listed in that table?

[00:20:58] Speaker 02:
The table suggests that the court should look offense by offense in that it references- Not suggests.

[00:21:04] Speaker 03:
Those are the only two factors.

[00:21:06] Speaker 03:
You're supposed to look at the table, they put in the information, there's two factors, and they calculate the sentence.

[00:21:13] Speaker 03:
You want them to take account of a third one, the number of supervised release terms that the defendant is serving.

[00:21:21] Speaker 02:
The table also makes reference to different classes of felonies.

[00:21:27] Speaker 02:
It does make reference to

[00:21:31] Speaker 02:
the class A felony in the table and in the paragraph that follows the table makes reference to statutory maximum and minimum terms of imprisonment for different counts, which necessarily would require the court to look at each individual offense.

[00:21:51] Speaker 02:
And the offenses each have the term of supervised release.

[00:21:54] Speaker 00:
But this is only to determine the grade.

[00:21:57] Speaker 02:
We would argue that, but the fact that the court must look at those factors means that the court is necessary.

[00:22:04] Speaker 00:
But I think what Judge Tatel is, and I mean this is the frailty in your position, it's only to determine the grade.

[00:22:10] Speaker 00:
You're only looking at grade in history to come up with total penalty.

[00:22:15] Speaker 00:
And it seems, and what we're

[00:22:17] Speaker 00:
In preparing this case, you have to scratch your head, like Judge Berzon did, to think that the grid gives you a total penalty.

[00:22:29] Speaker 00:
And you look at everything that's there, but you're focusing on grade and history and you come up with a total penalty.

[00:22:37] Speaker 00:
There's nothing that suggests you should now multiply the number of counts.

[00:22:42] Speaker 00:
See, that's the problem with your position.

[00:22:45] Speaker 00:
There's nothing that endorses that view that says, okay, now that you get the figure, multiply the number of counts and then spread it out any way you want.

[00:22:55] Speaker 00:
That's not what it says.

[00:22:56] Speaker 03:
And just to add to Judge Edwards' question, the result it produces is completely inconsistent with the purposes of the guidelines.

[00:23:06] Speaker 03:
I just, you know, since there's an ambiguity here, we all concede, I think, that there's an ambiguity here.

[00:23:13] Speaker 03:
But why would the government be insisting on this position when it's so completely inconsistent with the purposes of the guideline?

[00:23:22] Speaker 03:
I mean, it is, right?

[00:23:33] Speaker 03:
For a criminal violation, we calculate one violation grade and we do the same thing here.

[00:23:44] Speaker 03:
I get the ambiguity, but could you just articulate for this panel, what's the reason for taking the position you are when it's so inconsistent with the purposes of the guidelines?

[00:24:00] Speaker 02:
I think that the position the government is taking is not entirely, if at all inconsistent with the purposes of the guidelines.

[00:24:12] Speaker 02:
In this context, in the chapter seven context, district court is looking at violations of supervised release.

[00:24:24] Speaker 02:
In other words, the defendant's violation of

[00:24:29] Speaker 02:
the strictures that the district court had placed.

[00:24:32] Speaker 03:
Let me, I'm sorry to interrupt you, but I'd really like you to focus on the purpose here and let's focus on it by looking at the facts of Campbell, the Ninth Circuit case.

[00:24:43] Speaker 03:
Okay, so the defendant there admitted to one violation, right?

[00:24:47] Speaker 03:
He failing to keep in contact with his probation officer or something like that, right?

[00:24:53] Speaker 03:
The court employs in post 35

[00:24:56] Speaker 03:
consecutive sentences for each term of supervisor release, which was a longer sentence than he served on his underlying conviction.

[00:25:04] Speaker 03:
And the guidelines would have produced 351 months.

[00:25:07] Speaker 03:
I mean, just explain to us why that makes sense.

[00:25:12] Speaker 00:
Why that makes sense.

[00:25:14] Speaker 03:
Particularly when a defendant with only one term of supervisor release in that case, who violated by committing at 35 acts,

[00:25:23] Speaker 03:
would face only one single month sentence.

[00:25:27] Speaker 03:
Just focus on why that makes sense.

[00:25:29] Speaker 03:
That's so inconsistent with the purposes of the guidelines.

[00:25:34] Speaker 03:
And by the way, I'm sorry, but if you look at all the cases you cite, I think I looked at all the other circuit cases, they all focus on the statute.

[00:25:45] Speaker 03:
They don't get into the guidelines.

[00:25:46] Speaker 03:
And that's what Judge Edwards and I are asking you.

[00:25:51] Speaker 02:
In chapter seven of because the chapter seven is looking at supervised release and not at the conduct, not a criminal conduct.

[00:26:04] Speaker 02:
There's a wider range of

[00:26:07] Speaker 02:
of conduct that could lead to a violation, which is consistent with having a wider range of potential penalty for the violation of supervised release and by that I mean your honor, there could be on the one hand, a violation

[00:26:25] Speaker 02:
for, as the court referenced, failing to check in with a probation officer, all the way to a violation that results from the commission of a crime and violence.

[00:26:35] Speaker 00:
And don't you come up with don't you look at all that to come up with the grade.

[00:26:40] Speaker 00:
Exactly.

[00:26:41] Speaker 00:
Right.

[00:26:41] Speaker 00:
See, I mean, that's

[00:26:43] Speaker 00:
I mean, that's where your position really is soft because, yeah, it would have occurred to me that one way you could do this, well, there are different supervised release and there are different possible violations here, so we want to take them one by one.

[00:26:56] Speaker 00:
But then why create a grid that's based on grade and history to get one penalty result?

[00:27:04] Speaker 02:
And I would counter that, Your Honor, with the fact that Chapter 7 does not set forth the same sorts of strictures and rules that are found in Chapter 5 in the original sentencing context.

[00:27:18] Speaker 03:
We know that.

[00:27:20] Speaker 03:
We understand that.

[00:27:21] Speaker 03:
Your point about that is well taken.

[00:27:24] Speaker 03:
We're focusing on a different question.

[00:27:27] Speaker 03:
And I still haven't heard an answer as to why we would

[00:27:33] Speaker 03:
approve a process that produces a result just totally inconsistent with the guidelines are designed to do.

[00:27:39] Speaker 00:
It just... I mean... And this grade in history grid gives you the highest number, right?

[00:27:54] Speaker 02:
The highest number in terms of... For total penalty, yeah.

[00:27:58] Speaker 02:
It doesn't use the phrase total penalty.

[00:28:00] Speaker 02:
It does.

[00:28:00] Speaker 00:
I understand, but that's a conceptually works for me.

[00:28:03] Speaker 00:
So you just have to indulge me on that.

[00:28:05] Speaker 00:
OK, it's coming up at the high number.

[00:28:08] Speaker 02:
Right on an offense by offense basis.

[00:28:12] Speaker 00:
Yeah, but it's taking you're getting one.

[00:28:16] Speaker 00:
You're taking great in history to come up with one total penalty number.

[00:28:21] Speaker 00:
Now the difference here is you're saying you can apply that to each count.

[00:28:25] Speaker 00:
And we're saying, that seems really strange given the grid.

[00:28:30] Speaker 00:
And you've already considered all the counts to come up with the total penalty number.

[00:28:36] Speaker 00:
Having done that, now why would you put that number and use it to multiply every, conceptually it's just hard to comprehend.

[00:28:48] Speaker 00:
And the way the, apparently the way the circuits that have gone the way you prefer,

[00:28:55] Speaker 00:
reason they're going where they're going is because they simply, as Judge Tatel says, they're focusing only on the statute.

[00:29:03] Speaker 00:
And they're saying a judge has the authority to sentence consecutively or concurrently.

[00:29:09] Speaker 00:
And then the answer to that is so what?

[00:29:12] Speaker 02:
And your honor, I would point the court to the Fifth Circuit decision and badger, which does to not not a great extent but does discuss the guidelines and look specifically to chapter seven and in the introductory.

[00:29:28] Speaker 02:
commentary to chapter seven and looking at paragraph three B, the commission does say that although I'm quoting although the commission found desirable several aspects of the second auction that provided for a detailed revocation guideline system.

[00:29:44] Speaker 02:
Similar to that applied at the initial sentencing, extensive testing proved it to be impractical.

[00:29:51] Speaker 02:
And so our position is that in the context of the supervised release and a revocation of supervised release, the district court should, and we believe that the chapter seven of the guidelines contemplates the district court does in fact have a wider range of tools in its toolbox, if you will, to determine the appropriate sentence.

[00:30:13] Speaker 02:
And that includes imposing consecutive sentences upon the revocation of concurrent terms of supervised release.

[00:30:22] Speaker 00:
Does the district court have the authority with an explanation to go outside the guideline range?

[00:30:29] Speaker 02:
If the court had gone outside of the guideline range, certainly that we would agree.

[00:30:33] Speaker 02:
But in this case, the court did not do that.

[00:30:36] Speaker 00:
No, no, no, I understand.

[00:30:36] Speaker 00:
Well, that's the fight.

[00:30:39] Speaker 00:
I mean, that's part of the issue here.

[00:30:41] Speaker 00:
But isn't that the answer to you?

[00:30:44] Speaker 00:
The court has the authority to go out of guideline range, doing it the way we're suggesting maybe it should have been done.

[00:30:50] Speaker 00:
So if there are particular current concerns in a case and the court feels the grid's not picking it all up, and I'm going to grade it up even more,

[00:31:01] Speaker 00:
You can still achieve what you want by doing it the way we're suggesting that it's a total penalty.

[00:31:08] Speaker 00:
And no matter how many release, you don't multiply by every count.

[00:31:14] Speaker 00:
You're still going to have the district court having some control over this if it's a special case, right?

[00:31:23] Speaker 02:
I would agree with that, Your Honor, if the court were going outside of the guidelines range.

[00:31:28] Speaker 02:
Right.

[00:31:29] Speaker 00:
In this case, for example, what I'm saying is the court has the court can answer your concern by going outside of the guideline range.

[00:31:37] Speaker 00:
But you get the total panel and then you got to justify anything that's beyond the guideline range.

[00:31:42] Speaker 00:
And then, you know, then you then you sentence.

[00:31:47] Speaker 02:
And we would just argue that the court stayed within the guidelines here.

[00:31:52] Speaker 02:
It's just the court was looking on an offense by offense basis for that guideline.

[00:32:00] Speaker 04:
OK.

[00:32:00] Speaker 04:
All right, any more questions?

[00:32:02] Speaker 04:
Nope.

[00:32:02] Speaker 03:
Yeah, I have one more question.

[00:32:04] Speaker 03:
Sorry.

[00:32:07] Speaker 03:
Setting aside the fact that I still haven't heard a policy argument for your position, I'm curious to know why

[00:32:18] Speaker 03:
why you think that the guidelines are not sufficiently clear here.

[00:32:24] Speaker 03:
It says, where there is more than one violation of the guidelines of supervision, the grade of the violation is determined by the violation having the most serious fence.

[00:32:33] Speaker 03:
True, it doesn't say anything about what you do with this multiple supervised release, but what difference does that make?

[00:32:39] Speaker 03:
This is the rule.

[00:32:42] Speaker 03:
You don't take account of the

[00:32:45] Speaker 03:
number of supervised release terms.

[00:32:47] Speaker 03:
All you look at is the number of, all you look at is the most serious of the violations.

[00:32:54] Speaker 03:
And that's it.

[00:32:55] Speaker 03:
And the offense history, criminal history.

[00:32:58] Speaker 03:
That's it.

[00:32:59] Speaker 03:
I don't actually, now that I look at this, don't see the ambiguity.

[00:33:04] Speaker 03:
True.

[00:33:04] Speaker 03:
It doesn't speak to the precise issue, but statutes aren't ambiguous just because they don't speak to the precise issue.

[00:33:10] Speaker 03:
If the language covers it, that's good enough for us.

[00:33:14] Speaker 03:
And also,

[00:33:15] Speaker 03:
You know, we have lots of cases which say, yes, district courts, you know, have flexibility under the statutes, but they still have to follow the guidelines, right?

[00:33:27] Speaker 02:
Yes, your honor.

[00:33:28] Speaker 02:
And I apologize.

[00:33:31] Speaker 02:
Go on.

[00:33:31] Speaker 03:
Go ahead.

[00:33:31] Speaker 03:
I didn't mean to.

[00:33:33] Speaker 03:
I want to hear your answer to my question.

[00:33:35] Speaker 03:
Sorry.

[00:33:36] Speaker 02:
I just as this and I.

[00:33:39] Speaker 02:
With respect to the court's question about a policy argument, I would just reiterate that the supervised release context, I think, is different

[00:33:51] Speaker 02:
from the original sentencing context where you're necessarily talking about criminal conduct versus supervised release.

[00:33:59] Speaker 02:
You could be anything from a technical violation to criminal conduct.

[00:34:04] Speaker 02:
And I think that's just your response.

[00:34:08] Speaker 03:
But as Judge Edward points out, you take that into account by picking the worst one.

[00:34:12] Speaker 03:
You took the worst one.

[00:34:14] Speaker 02:
The introductory portion of Chapter 7 does also

[00:34:19] Speaker 02:
direct the court to suggest that the court should look to some extent to the conduct as well.

[00:34:25] Speaker 02:
And so we think that there is some space for the court to, as it's statutorily permitted to do, stack terms of imprisonment upon revoking supervised release.

[00:34:41] Speaker 04:
All right, if there are no more questions, Ms.

[00:34:43] Speaker 04:
Wright, why don't you take two minutes?

[00:34:46] Speaker 01:
Thank you.

[00:34:47] Speaker 01:
I didn't want to neglect to mention in race sealed case, which I think is quite relevant here because in that case, this court characterized the 18 month revocation sentence as being twice the guidelines maximum quote unquote of three to nine months, even though there were four separate terms of supervisory lease there.

[00:35:09] Speaker 01:
And under the government's theory, the range there would have been

[00:35:13] Speaker 01:
three to 36 months, and the 18 would have been within it.

[00:35:18] Speaker 00:
The problem for you is Smith doesn't really address the issue.

[00:35:22] Speaker 00:
They have a picture that works for you, but they're not really addressing the issue.

[00:35:29] Speaker 01:
In Ray Seald case?

[00:35:30] Speaker 00:
In Ray Seald, I'm sorry, yes.

[00:35:32] Speaker 01:
Yeah, yeah.

[00:35:33] Speaker 00:
Excuse me.

[00:35:34] Speaker 00:
Well, they're not... They're not addressing the legal issue.

[00:35:38] Speaker 01:
I mean, they're saying that this is the guideline range and you went over the guideline range without giving a reason and it's plain error and we're sending it back, which is exactly what we're saying here.

[00:35:49] Speaker 01:
I mean, the government argues against treating the two counts as a group with a total range of six to 12, but they don't acknowledge the problems with, you know, they would suggest that the total range here was six to 24, because you could either do it concurrent or consecutive in their view.

[00:36:07] Speaker 01:
But, and so that sounds reasonable, six to 24, when you have two counts, but it quickly balloons into a utterly useless guideline range.

[00:36:15] Speaker 01:
You know, with 10 counts, it would be six to 120 months.

[00:36:18] Speaker 01:
And that's not a guideline range.

[00:36:20] Speaker 01:
The commission would never create a scheme like that.

[00:36:23] Speaker 01:
And I guess I would say that it's implicit within the chapter seven, that it's written against the background of the way the commission has set things up.

[00:36:32] Speaker 01:
And the government's approach would create

[00:36:35] Speaker 01:
disparities between similarly situated defendants who've done the exact same breach of trust, committed the exact same harm.

[00:36:43] Speaker 01:
But just because one mailed 20 letters to further their scheme and one mailed one letter, the plea deal was struck a particular way.

[00:36:53] Speaker 01:
And so there's one count or 20 counts that people are treated entirely differently, guidelines wise.

[00:36:59] Speaker 01:
And again, I emphasize that the court would be free

[00:37:02] Speaker 01:
to vary and I suspect that the reason some of these other the other circuits don't discuss this and what apparently was not raised was was likely because they wasn't the situation sort of unique here because the judge didn't give any reason because the judge explicitly said I don't want to vary.

[00:37:21] Speaker 01:
I am I'm not varying so that's why

[00:37:26] Speaker 01:
It's so clear here that there was no adequate justification.

[00:37:30] Speaker 01:
Whereas in these other cases, it's possible the judge was saying something that

[00:37:34] Speaker 01:
deterred defense counsel from attempting to make the argument I'm making.

[00:37:38] Speaker 01:
And they went for these arguments that were much more tied to like the fact that the terms are consecutive and these statutory arguments that we're just not making here.

[00:37:47] Speaker 00:
In your view, how do you see the district court as retaining meaningful authority to pick consecutive versus a concurrent

[00:37:58] Speaker 00:
if the court is bound to apply the sentencing number the way you say, as opposed to the way the court did in this case.

[00:38:06] Speaker 01:
I guess I would say that the important thing is that at the end of the day, the total punishment is either within the range or justified out the range.

[00:38:14] Speaker 01:
How the judge chops it up, whether it builds that high-end sentence by stacking two small sentences or does it the way

[00:38:25] Speaker 01:
the guidelines generally advise you to do it, which is to put the total on everything concurrently.

[00:38:31] Speaker 01:
Really, it's just the judge's choice.

[00:38:35] Speaker 00:
No, no, I'm just trying to understand what do you think the judge has when you say the judge has a right, still has the right to sentence consecutively.

[00:38:43] Speaker 00:
So you're saying the judge is stuck with that total number and then can divide it in the accounts any way the judge wants to, but it cannot exceed the total.

[00:38:53] Speaker 01:
That's what I'm saying.

[00:38:54] Speaker 01:
The court could do that.

[00:38:55] Speaker 01:
I don't know why a court would do that, because it's really safer to do it concurrently, and that's what the guidelines suggest.

[00:39:03] Speaker 04:
Judge Tatel, did you have a question?

[00:39:05] Speaker 04:
No.

[00:39:05] Speaker 04:
Actually, Judge Edwards asked a question.

[00:39:07] Speaker 01:
All right.

[00:39:07] Speaker 04:
Thank you then.

[00:39:09] Speaker 04:
Madam Clerk, if you would call the next case.