[00:00:00] Speaker 04:
Case number 20-3061, United States of America versus Melvin Lawrence at balance.

[00:00:06] Speaker 04:
Mr. Welch for the appellant, Mr. Goodhand for the appellate.

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

[00:00:11] Speaker 01:
Councilor Appellant, you may proceed.

[00:00:15] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
May it please the court?

[00:00:18] Speaker 03:
My name is William Welch and today I would like to speak with you about allocution.

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Congress has authorized a re-sentencing remedy to correct the racially disparate sentencing scheme that's based on crack compared to powder cocaine offenses.

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And last year, this court said,

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that when considering motions for such relief, giving full and fair hearings is important to ensure that the goals of the statute are met and that a range of sentencing factors is relevant.

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And that was in White versus United States, 980, Federal 3rd, 76, Pinsite 81.

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In addition, federal rule of criminal procedure 32 says before imposing sentence, the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.

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Historically, people believe that defendants have the opportunity to allocute at sentencing.

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Although it's not a fundamental right, the right of allocution is grounded in the common law.

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It makes sense.

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What about the Supreme Court's decision in Dillon?

[00:01:54] Speaker 03:
Dillon was not a first step back case, Judge Wilkins.

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I understand why that's relevant because of course the District Court relied on Dillon in this case, but it also relied on the District Court's opinion in white, which came out before the DC Circuit's opinion in white.

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What about Rule 43B4?

[00:02:25] Speaker 03:
I'm sorry, I didn't hear that, Judge Miller.

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What about Federal Rule of Criminal Procedure 43B4, which says that presence is not required for the correction or reduction of sentences under, including 18 USC 3582C?

[00:02:45] Speaker 03:
Well, except this is not squarely a 3582C case.

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What do you mean by not squarely a 3582C case?

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Is 3582C the source of the exception to finality in this case?

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I would not go that far.

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I don't want to ignore

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a federal rule of criminal procedure, I realized that the court needs to consider the whole scheme of things.

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But this seems different because the First Step Act is a remedial statute.

[00:03:24] Speaker 02:
No, I just want to start.

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I just would like an answer to the question of whether this is a reduction of sentence under 18 USC 3582C.

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And that's the basis on which 404 is brought in.

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I don't believe it is, I don't believe that Congress relied on that.

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I just want to know, so you don't think you're not proceeding at all under 18 USC 3582C?

[00:03:52] Speaker 03:
I would not say so, Your Honor.

[00:03:58] Speaker 02:
You would not say so, so that's a long way of saying no.

[00:04:02] Speaker 03:
Right.

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You have nothing to do with 3582C.

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It's not, this argument doesn't, I certainly understand why because that involves sentencing reductions and certainly Congress is telling the district court to consider a reduction because of crack versus powder cocaine disparity.

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Ordinarily, it would seem that 3582C would have to do with changes in the guidelines, perhaps more of a clerical type mistake, whereas this is basically saying to the district court, go back and consider whether this sentence was greater than necessary

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under the circumstances, go back and reconsider the entire sentence.

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Consider the 3553A factors and ask the district court, do you still come out to the same sentence?

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Because of course, it isn't a mandated reduction either.

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I mean, in this case, it ended up seeming like that because the actual statutory maximum

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changed.

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So they had to, the district court had to reduce the sentence, but ultimately ended up imposing the maximum, which it hadn't previously.

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I would like to reserve the balance of my time and rebuttal, but if the court, I hope I answered your question, Judge Millett.

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And if the court has any other questions for me, I'd like to reserve the balance of my time.

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Do you think a sentence modification?

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or sentence reduction?

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It is a modification of the sentence.

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There was a de facto reduction in the sentence, an absolute reduction in time.

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I'm asking what was sought in this case.

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It was a reduction of sentence.

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Well, yes.

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That is what Mr. Lawrence was saying.

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It wasn't an entirely new sentencing where he would be subject to increases or decreases or anything like that.

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It could not be subject to an increase at this.

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Right.

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It was only a reduction.

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But you don't think that's a reduction of sentence within the meaning of Rule 43B for?

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I understand why it might be, why it might seem.

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I'm really just asking your legal theory here.

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That's all.

[00:06:39] Speaker 03:
Yes.

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A legal theory here from Mr. Lawrence's point of view is that,

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we should have had, this was a re-sentencing, this is almost like the sentencing was vacated and you send it back for a new sentencing.

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We think that would be a more appropriate approach to this than simply saying, okay, there was some clerical error, there was a guideline change, you gotta go back and just recalculate some aspect of the sentence.

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This is Congress saying, take a fresh look at the whole sentence and redo it.

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Just one other question, sorry.

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You argue for allocution on this case, but I didn't ever see you say what it is that Mr. Lawrence would have said at allocution that wasn't either said in your brief or already said it is prior allocation.

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he'd never had the opportunity.

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And that's the problem.

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There's no transcript.

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Normally one has to show prejudice.

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And so that's what I was confused about.

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What have you done to show that he was prejudiced by the absence of elocution?

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Well, he's prejudiced because basically the government has been able to point to

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his history in the BOP since the earlier sentencing.

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And he's been denied the opportunity to respond to that and to explain.

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Well, why couldn't you have explained it in your brief?

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Why wouldn't?

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I mean, the government didn't allocute when it made those arguments.

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It did it in a brief.

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So I'm just wondering if he had an answer or response to that, why wasn't it in the brief?

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Well, that's a fair question.

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I would just say that the best person to speak to his progress and what he's dealt with in the Bureau of Prisons is Mr. Lawrence himself in allocution.

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Have you talked to him about it?

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I don't mean to intrude a privilege here, but I'm just sure as to how can I have comfort in knowing that there's something to be said since there was nothing included in the brief?

[00:08:58] Speaker 03:
Well,

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Fair point.

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I will just say that my client is one of the more challenging folks I've ever had to speak with and kind of trying to virtually get him

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Focused is a real challenge because I haven't been able to go see him either and have a real conversation and explain to him, listen, this is what allocution is about.

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This is what you need to be prepared to do.

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What would you say?

[00:09:26] Speaker 03:
Doing so on a telephone is not the same.

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So I realize that isn't a direct answer to your question, but that is the history of this appeal.

[00:09:36] Speaker 01:
Thank you.

[00:09:39] Speaker 01:
All right, let us hear from the government.

[00:09:47] Speaker 04:
Thank you, Your Honors.

[00:09:48] Speaker 04:
May it please the court, David Goodhand for the United States.

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Eighth Circuit Court of Appeals have concluded that a hearing with the defendant's presence is not necessary in this context.

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That is an understandable conclusion given the statutory text of the First Step Act, which establishes that Congress authorized only a limited adjustment to an otherwise final sentence.

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If you first look at the statutory tax establishes, it's simply a motion to reduce, impose a reduced sentence, not impose a sentence or impose re-sentencing.

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Second, of course, as the courts have made clear, there is the as if clause, which permits a district court to alter a single variable, go back in time and establish

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the effects of the amendments to sections two and three of the Fair Sentencing Act.

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And the court, the district court probably did that here, went back, considered the changed career offender guideline, which was hinged on the statutory maximum and minimum and altered the base offense level accordingly.

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The district court also, I would suggest, very presciently anticipated this court's decision in white.

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considered the defendant's post-sentencing conduct, also considered this 3553 factors, and carefully adjudged, finally, I would suggest, the defendant's arguments.

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He made several arguments in mitigation relating to his

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age and purported minimal risk of recidicism.

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He also made an argument relating to his medical condition and finally suggested that his criminal history suggested that he was appropriate.

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He was appropriately considered for a reduction.

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The district court carefully considered all those factors and concluded that a reduction of 10 months to the statutory maximum was appropriate, but no more.

[00:12:00] Speaker 01:
So could I just ask you quickly, although it's not argued here by council in his brief, both in the opening brief and reply brief, he suggests that under this statute, the district court was required to say something about the sentencing disparity.

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and that here the district court made no reference to that.

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What is your response?

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I rewrite to stand for the proposition that a sentence pursuant to the First Step Act, a reduction, should be procedurally reasonable.

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Procedural reasonableness in this context does not require a sort of ticking off of all the 3553 factors, that is, every one of them in course, including disparity, of course, being a 3553 factor.

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So in this respect, the district court, in her opinion, made it clear that she had considered the 3553 factors.

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That's an appropriate, procedurally reasonable articulation of an adequate sentencing rationale, I would suggest.

[00:13:17] Speaker 01:
And number one... What about the response in part that... I just want to be clear about this.

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You do think that

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or are you in agreement with the argument being made by appellant that there was a requirement given this statute to look at disparity or is the statute itself the only consideration of disparity that was necessary?

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In other words, Congress has already considered the disparity and allowed this mechanism to address it.

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and there was no further requirement?

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So it seems to be arguing that there is.

[00:14:03] Speaker 04:
Well, I think disparity comes in play here in two places.

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One, Congress has already considered it in making the Fair Sentencing Act amendments retroactive.

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So that disparity is already considered by Congress in giving district courts the discretionary authority to reduce.

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But also, as I understand it, White from this court has suggested that 3553 factors should be considered by a district court.

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And I think, of course, 3553 has a reference to disparity.

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So I think it's considered in both places.

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Here, we know that the court considered the overarching goal of Congress, as the defendant concedes even in his reply brief,

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the district court made mention of the core purpose of the Fair First Step Act, which was to account for disparity.

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So I don't think there's any doubt that both via her consideration of the 3553 factors and her understanding of Congress's goal with respect to the First Step Act, this court considered disparity.

[00:15:07] Speaker 00:
Can I ask a question that's puzzled me?

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So when Mr. Lawrence was sentenced to 250 months, that was a below guidelines sentence that because the guidelines range was 262 to 327 months.

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And after his guidelines were recalculated by the district court here, the district court found that the guidelines range

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pursuant to the First Step Act was 210 to 267 months.

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Mr. Lawrence had served 209 months just under the guidelines and he asked for time served.

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So instead of the government opposes that, so instead of him getting another sentence that's below guidelines, he gets a sentence that's basically at the high end of the guidelines, or I guess you could say more fair to say middle of the guidelines, because the guidelines range for now is

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210 to 267, but the statutory maximum was 20 years or the 240 months.

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So how does this seem, how do we square the fact that he got a below guideline sentence before and he goes in for a reduction and he gets a within guidelines

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sentence.

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And how is that compatible with how this is supposed to work?

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I mean, the whole purpose of this is to deal with this crack powder disparity.

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But one way of looking at it is that he got no benefit at all.

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He went from getting a below guideline sentence before to getting a within guideline sentence.

[00:17:37] Speaker 04:
The is true.

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At the 2009 re-sentencing, the district court varied downward from the guidelines.

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And in fact, in part, the district court varied downward in consideration of the defendant's counsel's argument about the disparity.

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though recognizing that the current statute that was being contemplated at that time didn't necessarily alter his career offender guidelines, the district court in 2009 nonetheless did come down in a variance from the guidelines recommendation.

[00:18:09] Speaker 04:
But the district court in 2009 also considered the defendant's criminal history, his lack of remorse, and the seriousness of the offense to conclude that that variance was an appropriate sentence.

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I would suggest the district court here in 2020 looked at that number and concluded that it was appropriate still to the extent that the statutory max, the career offender baseline was accounted for via the amendment, but the court looked again at the criminal, the court

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for the record, I would note that Judge Kohler-Katelli pulled the resentencing transcript, looked at that resentencing transcript, looked at the PSR again, but ultimately concluded in light of the defendant's disciplinary record in prison, the post-sentencing conduct that White says is appropriate for this district court to consider,

[00:19:06] Speaker 04:
the court concluded that the number 240 was an appropriate number.

[00:19:12] Speaker 04:
And in particular, she highlighted the danger to the community that she thought the defendant represented.

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So I don't think there's necessarily a requirement of exact proportionality.

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And I think Chavez Meza speaks to that in the 3582 context, C2 context.

[00:19:30] Speaker 00:
they actually declared proportionality is not necessarily required instead it's again a question of substantive reasonableness of the sentence that results and here that is there a requirement to say well there was a variance downward before but i'm not going to vary downward this time and did the district court acknowledge that it was essentially um

[00:20:00] Speaker 00:
you kind of changing the construct from the first sentencing?

[00:20:04] Speaker 04:
I'm sorry to interrupt.

[00:20:06] Speaker 04:
I don't think there has to be an express articulation.

[00:20:09] Speaker 04:
Again, we have to look at the totality.

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Rita says every case is different.

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Every sort of sentencing explanation will be different.

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I don't think there's any doubt.

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The thoroughness of this district court opinion demonstrates she full well understood what the district court did in 2009.

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the fact that she didn't say, well, I recognize it was a variance then, and I'm not doing that variance here.

[00:20:35] Speaker 04:
Given the reasoning, I think that supports the conclusion that she understood that a variance here was not appropriate.

[00:20:42] Speaker 00:
White says no less than three times that a hearing, well, at first says it is important

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that they, meaning defendants being re-sentenced under the First Step Act, be given full and fair hearings on their claims to ensure that the goals of the act are met.

[00:21:13] Speaker 00:
And then it says again, later in the opinion, it notes that

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Nor did the court hold a hearing on appellants motions for relief.

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That's again at page pin site 92.

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And then for full measure, a third time at let's see, I guess it's also at pin site 92.

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says, and the court did not hold a hearing on appellant's motion for relief.

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So how are we to interpret what the court meant when it said, and it is therefore important that they be given full and fair hearings on their claims?

[00:22:15] Speaker 04:
I think White tells us what that means.

[00:22:19] Speaker 04:
There were two flaws identified in the White decision relating to the District Court's analysis of the sentencing.

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First, the District Court did not indicate that it had considered the voluminous mitigating evidence provided by the defendant in support of his First Step Act motion, number one.

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And number two, White identified a second failing omission on the District Court's part

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In the white first step back context that was it wasn't apparent that the court had considered all the relevant factors that that should apply to a court's discretionary decision in the context of a first step back motion and what critically I think what white did is indicate that

[00:23:04] Speaker 04:
If the court had had a hearing, we might've had an indication on appeal for the court to review whether or not the district court had indeed considered those.

[00:23:14] Speaker 04:
But the court additionally noted there also wasn't any reference in the opinion to either the mitigating evidence or the consideration of the relevant factors, the 3553 factors.

[00:23:26] Speaker 00:
Well, why didn't the court just say it's not in the opinion so we don't know whether the court considered it?

[00:23:33] Speaker 00:
the district court considered it.

[00:23:34] Speaker 00:
I mean, you don't have to then go on for three separate occasions and say there was no hearing.

[00:23:41] Speaker 04:
Well, I think a fair reading of White is that a district court could have adequately accounted for this, as this district court did, by writing an opinion indicating the court had considered the mitigating evidence, indicating that the court had considered the 3553 factors.

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But I read White to stand for the proposition that we had a

[00:24:03] Speaker 04:
blank void in the record.

[00:24:05] Speaker 04:
There was no hearing, no transcript to consult, nor was there an opinion that made reference to these critical features of the First Step Act discretionary sentencing.

[00:24:16] Speaker 04:
So, and again, you know, particularly I look at page 92, the White opinion, the discourse opinion fails to mention any of this evidence.

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nor did the court hold a hearing on appellant's motion to relief.

[00:24:31] Speaker 04:
I read that.

[00:24:33] Speaker 04:
The government reads that as suggesting that that was, you could have covered your bases either way, but we don't have that here.

[00:24:39] Speaker 04:
We must remand.

[00:24:41] Speaker 00:
What's wrong with the reading of White to say following, following White in this case, if you are going to change from varying downward to a within guideline sentence,

[00:24:57] Speaker 00:
and on top of that, based upon the defendant's conduct in prison, then you ought to have a hearing so that you can give the defendant an opportunity to explain his post-sentencing conduct.

[00:25:14] Speaker 04:
That certainly would have just would have been permissible for the court to do that but there's nothing that requires it number one and number two, all of that could have been hashed out via the papers that the government in its response to the first step back motion.

[00:25:31] Speaker 04:
did detail in some fashion the disciplinary record it was going to ask the court to consider.

[00:25:38] Speaker 04:
It would have been a very easy matter for the defendant to reply to that.

[00:25:44] Speaker 04:
He did not.

[00:25:45] Speaker 04:
The court relied on it quite properly and I think given White's instruction that

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sentences in the First Step Act context must still be procedurally reasonable, I think we have here a procedurally reasonable decision with an adequate explanation.

[00:26:03] Speaker 01:
So I guess the question would be, under a plain error standard of review, that Congress passes a statute recognizing a disparity

[00:26:19] Speaker 01:
that it thinks was inappropriate and therefore authorizes the district court to look at this sentence again in light of the First Step Act.

[00:26:34] Speaker 01:
And if your argument is presented as I understand it, it's okay for the district court to treat this as a resentencing, as distinct from a correction.

[00:26:49] Speaker 01:
but it is not all right for the defendant to treat it as a resentencing in which the usual procedural requirements apply.

[00:27:06] Speaker 01:
And that's what I just wanna be clear about.

[00:27:08] Speaker 01:
So do defendants who file these motions know that they can end up worse off?

[00:27:20] Speaker 04:
I think certainly they must understand, given, for example, this court's decision in white, post-sentencing conduct can be considered.

[00:27:31] Speaker 04:
And of course, we have to step back and look at this at the higher level here, which is this is all discretionary.

[00:27:37] Speaker 04:
The First Step Act doesn't require a district court to do anything.

[00:27:42] Speaker 04:
Once you account for the amendments to sections two and three,

[00:27:46] Speaker 01:
No, I think you're clear about that.

[00:27:48] Speaker 01:
But once the district court decides to do something, the question is, what is the First Step Act authorizing?

[00:27:57] Speaker 01:
This is not as though the government had filed a motion saying, look at this post-incarceration conduct.

[00:28:07] Speaker 01:
Let's reconsider the sentence.

[00:28:10] Speaker 01:
That's all I'm trying to understand.

[00:28:12] Speaker 04:
Sure, I think all of this comes into play based on a mandatory consideration of the 3553 factors.

[00:28:20] Speaker 04:
So once you do the front end analysis, you account for the section two and three amendments, and you come up with any changes to the guidelines, you consider the new statutory mandatory minimums and maximums,

[00:28:33] Speaker 04:
Then we are now into, I would suggest, 3553 factors.

[00:28:38] Speaker 04:
And that's a discretionary feature that is certainly familiar to defendants in this context.

[00:28:44] Speaker 04:
They went through it when they got initially sentenced.

[00:28:47] Speaker 04:
So that's that.

[00:28:48] Speaker 01:
Understand what I'm getting at, don't you?

[00:28:50] Speaker 01:
The defendant thinks he's going in for a reduction.

[00:28:53] Speaker 01:
The district court is not obligated to give it to him.

[00:28:56] Speaker 01:
But does he also know that the district court

[00:29:01] Speaker 01:
can impose a greater sentence than his original sentence as imposed by Judge Penn.

[00:29:09] Speaker 01:
I thought that was the thrust of Judge Wilkins' question.

[00:29:14] Speaker 04:
He did get a reduction here.

[00:29:15] Speaker 04:
He got the 10-month reduction.

[00:29:17] Speaker 04:
I think I understood Judge Wilkins to be asking whether or not the district court had to expressly articulate the reasoning why a downward variance from the guidelines was not, again, appropriate.

[00:29:30] Speaker 04:
And I don't think procedural reasonableness requires that when we have the thoroughness of the district court opinion here.

[00:29:39] Speaker 04:
But he certainly did get a reduction.

[00:29:41] Speaker 04:
And I think the question is, when you're assessing the scope of that reduction, does a defendant understand that the consideration of the 3553 factors might include post-sentencing conduct?

[00:29:53] Speaker 04:
Absolutely.

[00:29:57] Speaker 02:
Time.

[00:29:58] Speaker 02:
Anything further?

[00:29:59] Speaker 02:
Yeah.

[00:30:00] Speaker 02:
If you're done, I just wanted to follow up on Judge Wilkins' line of questioning.

[00:30:08] Speaker 02:
It's not only was his position vis-a-vis the guidelines changed, but before he had been below the statutory maximum, now he is at the statutory maximum.

[00:30:19] Speaker 02:
And White said that district courts here have to give a sufficiently compelling justification for the sentence they impose.

[00:30:29] Speaker 02:
How can an explanation be sufficiently compelling under White's terms if it doesn't even acknowledge the change in position that's being affected vis-a-vis the statutory maximum and the guidelines range?

[00:30:45] Speaker 02:
Shouldn't the district court have to at least acknowledge that before he was below statutory max, now he's at it.

[00:30:51] Speaker 02:
Before he was below guidelines, now he's in the middle of it.

[00:30:55] Speaker 02:
Here's why.

[00:30:57] Speaker 04:
Well, I think the court did acknowledge that, to the extent that the court carefully went through what happened in 2009, acknowledged this.

[00:31:05] Speaker 02:
Can you point me to where the district court acknowledged that while you were below, previously you were below, now you're going to the middle, previously you were below the statutory maximum, now you're at it.

[00:31:16] Speaker 02:
And here's why.

[00:31:18] Speaker 04:
No, I do not mean to suggest it was that express, absolutely not.

[00:31:24] Speaker 04:
The court did not do that.

[00:31:25] Speaker 02:
Are you implying it?

[00:31:26] Speaker 02:
What language implies it?

[00:31:28] Speaker 02:
Acknowledgement of those two changes.

[00:31:32] Speaker 04:
In the procedural history, the court recognizes that, let's see, we're at page... The appendix 102, 103 is the court reviewing the 2009 resentencing and acknowledging that the court gave the variance

[00:31:57] Speaker 04:
That's at page 103, the court imposed a sentence of 250 months incarceration.

[00:32:07] Speaker 04:
And then we have the- Go ahead, keep going.

[00:32:09] Speaker 02:
I'm sorry.

[00:32:09] Speaker 02:
I apologize.

[00:32:10] Speaker 02:
Go ahead.

[00:32:11] Speaker 04:
And then we have the court recognizing that the statutory maximum is now 20 years, 240 months.

[00:32:21] Speaker 02:
So we have- Where is the court recognizing that his prior sentence was below the statutory maximum?

[00:32:27] Speaker 04:
Well, I think if it's not expressed, it's certainly incorporated into the probation offices.

[00:32:39] Speaker 04:
It's ECF 132, which goes through this in detail.

[00:32:43] Speaker 02:
But what it requires is sufficiently compelling justification by the district court.

[00:32:50] Speaker 02:
And I'm not sure the probation offices report or

[00:32:57] Speaker 02:
an acknowledgement of a past fact in the procedural section of the opinion without explanation later for the specific determinations counts as efficient compelling justification.

[00:33:14] Speaker 02:
Well, again, I think the sufficiently compelling justification does not have to be expressly articulated to the extent that the court... Well, I'm asking, like sort of, you know, in administrative law, if an agency is changing what it did in the past, we require them to acknowledge that they're doing that and then give, and then they explain it.

[00:33:34] Speaker 02:
And that's just for a reasonableness review, not sufficiently compelling explanation requirement.

[00:33:42] Speaker 02:
And so I'm just trying to understand how we couldn't require that a district court in its analysis of relevant factors acknowledge that where you are with respect to the guidelines and where you are with respect to the statutory maximum, you're coming out worse.

[00:34:00] Speaker 02:
Yes, you've got 10 months less on your sentence.

[00:34:03] Speaker 02:
The law required that.

[00:34:04] Speaker 02:
That wasn't a discretionary judgment.

[00:34:06] Speaker 02:
That was absolutely legally obligated because the statutory maximum had changed.

[00:34:11] Speaker 02:
So where is that, why isn't that something that we should require of district courts in their making their discretionary judgment?

[00:34:20] Speaker 04:
I don't think that follows from Rita and or Chavez Meza.

[00:34:24] Speaker 02:
Rita said- I'm quoting White here on sufficiently compelling justification.

[00:34:28] Speaker 04:
Sure, and I think the sufficiently compelling justification here is the lengthy disciplinary record coupled with the criminal history of the defendant coupled with his risk of recidivism that was identified by both the BOP and the government.

[00:34:46] Speaker 04:
That is a sufficiently compelling justification.

[00:34:49] Speaker 02:
I have no idea.

[00:34:51] Speaker 02:
At his initial sentencing when the probation office does the PSR, is there a risk of recidivism noted there?

[00:34:58] Speaker 04:
or not?

[00:35:00] Speaker 04:
I don't know the answer.

[00:35:01] Speaker 04:
I guess I doubt it.

[00:35:04] Speaker 02:
OK.

[00:35:05] Speaker 02:
But again, it's not something that's thought about the initial sentence as part of protecting the public.

[00:35:12] Speaker 04:
Right.

[00:35:13] Speaker 04:
Yeah.

[00:35:14] Speaker 01:
So all we have is what the district court said at JA 103, where she says that the district court, Judge Penn,

[00:35:25] Speaker 01:
had afforded defendant, quote, somewhat of a variance, although not as substantial as counsel had requested.

[00:35:35] Speaker 01:
And then we get to 113 and 114, where she's reviewing his post incarceration conduct.

[00:35:46] Speaker 04:
Yes, and in the context of the thorough review she's done, of course, of the probation officer's addendum, which identified the statutory maxes and the new base offense level.

[00:36:01] Speaker 04:
I would finish by suggesting this is not something I understand the defendant has even raised.

[00:36:07] Speaker 01:
I may be- Well, note, I started my question with plain error.

[00:36:12] Speaker 04:
And I think that's an appropriate consideration here.

[00:36:17] Speaker 04:
I certainly could have gone through this chapter and verse in my brief if I had understood that the defendant was raising anything other than that he didn't get a hearing.

[00:36:26] Speaker 04:
But I do think even in the context of not plain error, I think what we have here is a thorough district court opinion that considers all the relevant procedural history and understands the facts as presented.

[00:36:40] Speaker 04:
um certainly this doesn't rise to the level of plain error in in in the context of procedural reasonableness if there any further questions no thank you thank you your honors we would ask that you affirm the judgment below all right counsel for appellant we'll give you a minute or two thank you um judge rogers ultimately this is

[00:37:10] Speaker 03:
about disparity.

[00:37:12] Speaker 03:
That's what Congress said.

[00:37:14] Speaker 03:
That is why Congress authorized these resentencings.

[00:37:20] Speaker 02:
And despite what the government is like- Do you make a disparity argument in your opening brief?

[00:37:29] Speaker 02:
I saw something in your reply brief briefly alluding to the problem.

[00:37:34] Speaker 03:
No, I did not in the opening brief.

[00:37:36] Speaker 03:
It was in response because- Okay, that's not allowed.

[00:37:40] Speaker 03:
It is something that the district court didn't address.

[00:37:44] Speaker 03:
I'm correcting the government's comment.

[00:37:46] Speaker 02:
The district court didn't address it and you think it's what this case is all about.

[00:37:50] Speaker 02:
It should have been in your opening brief.

[00:37:53] Speaker 03:
Fair, fair comment, your honor.

[00:37:54] Speaker 03:
Fair comment.

[00:37:55] Speaker 01:
But counsel, don't give up too much.

[00:37:58] Speaker 01:
What about what you said on page 12?

[00:38:03] Speaker 03:
Well, I mean, that is ultimately the issue is that this is all about disparity and disparity is the one thing that is not addressed in the record.

[00:38:16] Speaker 02:
Sorry, what on page 12?

[00:38:19] Speaker 03:
I'm sorry?

[00:38:20] Speaker 01:
On page 12 of your opening brief, you say, I'm quoting, assessing section 404 motions must take account of Congress's intent to rectify

[00:38:33] Speaker 01:
disproportionate and racially disparate sentencing penalties," end of quote, and you're citing white, the white opinion from this court.

[00:38:47] Speaker 03:
And that is ultimately what this is all about.

[00:38:52] Speaker 03:
And that is not what the court addressed.

[00:38:55] Speaker 02:
The remedy that you are looking for, if we turn the page, the remedy that what you were supposed to do to address

[00:39:02] Speaker 02:
Congress's intent here is have hearings with allocution.

[00:39:06] Speaker 03:
That is what Mr. Lawrence wants, ultimately.

[00:39:09] Speaker 03:
And that is what we believe White calls for when it says full and fair hearing.

[00:39:15] Speaker 03:
We're having a hearing right now.

[00:39:17] Speaker 03:
There was no hearing in the district court.

[00:39:19] Speaker 03:
That's why there's no transfer.

[00:39:20] Speaker 02:
Does a full and fair hearing have to include the defendant's presence to allocute, or are you arguing for the attorneys coming into court literally or virtually and having an argument before the judge?

[00:39:32] Speaker 03:
We're saying that at least like a regular sentencing hearing has to have the judge offering the defendant the opportunity to argue.

[00:39:42] Speaker 03:
He doesn't have to take it, but the Federal Rule of Criminal Procedure 32 would apply to these and at least the opportunity.

[00:39:50] Speaker 03:
and given the fact that we do so much virtually now, it wouldn't be that difficult.

[00:39:54] Speaker 03:
We would not have to have the marshals bring him back to D.C.

[00:39:58] Speaker 03:
in the middle of a pandemic.

[00:39:59] Speaker 02:
If we adopt your rule, it would apply going forward, and at least we're all hopeful we're not going to be doing virtual hearings.

[00:40:07] Speaker 02:
So really, this is a rule that would require

[00:40:12] Speaker 02:
prisoners to be transported.

[00:40:14] Speaker 02:
And sometimes district prisoners that could be halfway across the country here to allocate on a sentence reduction where they cannot have an increase in their sentence.

[00:40:26] Speaker 03:
Correct.

[00:40:27] Speaker 03:
And I would also say, I mean, I don't understand counsel.

[00:40:31] Speaker 01:
I mean, the Bureau of Prisons does these remote sentencing all the time.

[00:40:35] Speaker 01:
Agent Wilkins knows better than I, so I mean,

[00:40:41] Speaker 01:
Let's just be clear what your argument is.

[00:40:43] Speaker 01:
And I thought what Judge Millett was getting at was courts recognize that you can have, quote, evidentiary hearings on issues without the presence of a defendant physically.

[00:40:58] Speaker 03:
Yes.

[00:40:59] Speaker 03:
And what I was thinking without saying it when her honor asked was, how long will the CARES Act continue?

[00:41:07] Speaker 03:
I mean, that is an option that presently we would have to say, fine, we'll consent to a virtual hearing.

[00:41:13] Speaker 03:
That way he can have his say, and he doesn't have to come all the way across the country.

[00:41:18] Speaker 01:
Any further questions?

[00:41:20] Speaker 00:
No.

[00:41:21] Speaker 01:
Thank you.

[00:41:22] Speaker 01:
We'll take the case under advisement.