[00:00:00] Speaker 03: Case number 19-3081, United States of America versus Rashawn Parks, also known as Ivy, at balance. [00:00:08] Speaker 03: Mr. Smith for the at balance, Ms. [00:00:10] Speaker 03: Heffernan for the appellee. [00:00:12] Speaker 03: Mr. Smith, good morning. [00:00:14] Speaker 00: Good morning, Your Honor. [00:00:20] Speaker 00: Please proceed. [00:00:22] Speaker 00: Good morning, Your Honor. [00:00:23] Speaker 00: It's Jerry Smith for Rashawn Parks. [00:00:26] Speaker 00: I know this case, on the one hand, really all we're talking about here is what amounts to one year of supervised release. [00:00:33] Speaker 00: But I think the issue obviously is much larger. [00:00:35] Speaker 00: The real question here is how the court is to use the sentencing guidelines at sentencing and when there should be a finding of prejudice when it incorrectly uses the guidelines. [00:00:47] Speaker 00: which unquestionably happened here. [00:00:49] Speaker 00: There's no question here that the court gave Mr. Parks an above guidelines term of supervised release. [00:00:58] Speaker 00: And there's also no question that he did this thinking that the term of supervised release that he did give was guidelines compliant, when in fact it wasn't guidelines compliant. [00:01:09] Speaker 00: And he was never aware that the lower actual guideline range applied. [00:01:15] Speaker 02: Let me ask you, Mr. Smith, you said he did it knowing that it was an out of guidelines sentence. [00:01:26] Speaker 02: Do you take that from his statement that regardless of whether the five-year to life applies, what are you basing that on? [00:01:39] Speaker 02: What exactly did he say? [00:01:41] Speaker 00: Maybe I misspoke, Your Honor. [00:01:42] Speaker 00: He thought the guideline range for the supervised release period was five to life. [00:01:48] Speaker 00: And he gave what he thought was a guidelines compliant, supervised release of six years. [00:01:55] Speaker 00: Of course, as it turns out, the guideline provision for Mr. Park's term of supervised relief was exactly five years, no more, no less. [00:02:04] Speaker 00: So all the judge was authorized [00:02:06] Speaker 00: to give Mr. Parks for supervised release under the guidelines was five years, no more, no less, but he gave him six years thinking that that was guidelines compliant. [00:02:16] Speaker 02: Your honor- But that's my question is what makes you, why do you think he thought that? [00:02:23] Speaker 02: Because he also said whether or not this is applicable, I'm giving you six years. [00:02:31] Speaker 00: That was in the pre-sentence report, which he adopted. [00:02:36] Speaker 00: And he also explicitly said on the record that he thought the term of supervised release was five years to life. [00:02:45] Speaker 01: All right. [00:02:46] Speaker 01: So I think that there's two different things going on. [00:02:50] Speaker 01: Aren't there, Council? [00:02:53] Speaker 01: It's that the statute, he thought that the statutory provision [00:03:02] Speaker 01: was that he had to give at least five years and he could give up to life. [00:03:09] Speaker 01: And that that was also the guidelines range. [00:03:15] Speaker 01: But it turns out that the statutory range did not have a bottom of five years, right? [00:03:22] Speaker 01: The statutory range has a bottom of, is it one year? [00:03:27] Speaker 00: No, no, Your Honor, the guy the statutory range is five years to life. [00:03:32] Speaker 00: And we're not disputing that. [00:03:35] Speaker 00: So he could have legally given given him up to life and he could have legally come down all the way to five years. [00:03:42] Speaker 00: It's just that the guideline range was five years for a class C felony like this. [00:03:48] Speaker 00: Usually the guideline range I think is one to three years. [00:03:51] Speaker 00: there's another guideline provision I forget in 5d 1.2 that says when the [00:03:58] Speaker 00: the mandatory minimum, the statutory mandatory minimum is such a number, the guidelines have to be at least that. [00:04:07] Speaker 00: And here the statutory mandatory minimum for supervised release was five years. [00:04:12] Speaker 00: So even though the guideline provision recommended a supervised release term of one to three years, that five year floor trumped. [00:04:20] Speaker 00: And that means that under the guidelines, the [00:04:24] Speaker 00: the guideline range is wasn't even a range. [00:04:26] Speaker 00: It was a point was five years, no more, no less. [00:04:30] Speaker 00: That's what the guidelines called for. [00:04:33] Speaker 00: The statute permitted five years to life and the judge mistakenly believed [00:04:38] Speaker 00: that the guidelines also called for five years to life. [00:04:41] Speaker 00: And thinking that he gave Mr. Park six years thinking it was guidelines compliant, but really the guidelines restricted him to five years and he didn't know that. [00:04:53] Speaker 00: And that's really the problem here. [00:04:54] Speaker 00: He proceeded to sentencing thinking that the guideline range for the supervised release was five to life when in fact it was only five years. [00:05:04] Speaker 00: And I think that would have made a difference. [00:05:05] Speaker 00: In fact, I think [00:05:07] Speaker 00: I mean, this is just a situation where the court uses an incorrect guideline range, not knowing he's doing that, and is not even aware of the correct guideline range, and ends up giving an above guideline sentence. [00:05:22] Speaker 02: And I think- Well, why couldn't we construe it to be his saying, whatever the range is, I'm going to vary from it. [00:05:35] Speaker 00: He could have done that, but we can't construe that because we don't know that he would have done that because he never considered the correct guideline range. [00:05:45] Speaker 00: He was never made aware of it. [00:05:46] Speaker 00: The Supreme Court has made clear that having the correct guideline range [00:05:50] Speaker 00: is in fact the fundamental building block of any sentence a court constructs. [00:05:55] Speaker 00: Even if the court ends up deciding to give an above guideline sentence, he must still know the correct guideline sentence so that he can use that as a benchmark for gauging whatever variance he might apply. [00:06:09] Speaker 00: So the court could have varied from the five-year range [00:06:13] Speaker 00: if he had chosen to do that, but to even to be able to make that determination, he needed to know what that range was. [00:06:21] Speaker 00: And here he never knew what that range was. [00:06:24] Speaker 00: He never even knew that it might exist. [00:06:26] Speaker 00: And that's the problem. [00:06:28] Speaker 00: A court has to have the correct guideline range before it can vary from anything. [00:06:35] Speaker 00: So here he never really was presented with a situation where he could vary from the guideline range. [00:06:41] Speaker 00: For the simple fact, he just never was made aware of what that guideline range was. [00:06:45] Speaker 02: And then how do we construe his saying, regardless of whether it's five years or not, I'm giving six. [00:06:55] Speaker 00: Well, because when he said that, he was talking about the defense counsel had asked him, defense counsel had made the argument that even under the statute, he could go lower than five years. [00:07:07] Speaker 00: And this is talking about the statute, not the guidelines. [00:07:10] Speaker 00: And the court in response to that said, well, counsel, even if I accepted your argument that the statute permitted me to go below five years, I would still give your guy six years [00:07:21] Speaker 00: that's just you know for these reasons that I think he deserves six years. [00:07:26] Speaker 00: He's not on guideline reasons and that's where that comes in. [00:07:30] Speaker 00: I don't think that but when he made that statement he was still laboring under the misimpression that he could give Mr. Parks under the guidelines up to life. [00:07:42] Speaker 00: He very well may not have made that assertion had he known [00:07:45] Speaker 00: that the guidelines only permitted him to give Mr. Parks five years supervised release. [00:07:51] Speaker 00: So I think when he made that statement he made needs to be looked at in context. [00:07:56] Speaker 00: He made it laboring under the mistaken impression that he could under the guidelines give Mr. Parks up to life when in fact the guidelines only permitted him [00:08:07] Speaker 00: to give him five years. [00:08:09] Speaker 00: If he had known that the guidelines only permitted him to give five years and he said, okay, well, I know that, but I'm deciding to vary from the guidelines, then it's fine. [00:08:19] Speaker 00: I wouldn't have any argument here. [00:08:21] Speaker 00: But my primary position is he still needs to know what the correct guideline range is, even if he gives what turns out to be an above guideline sentence. [00:08:33] Speaker 01: Isn't your argument tantamount to [00:08:37] Speaker 01: saying that whenever the district court incorrectly calculates the guidelines, it's per se prejudicial and understricken. [00:08:50] Speaker 01: Isn't that essentially what you're arguing, even though that's not what the Supreme Court has said? [00:08:55] Speaker 00: Well, I think that is sort of what I'm arguing, Your Honor. [00:08:57] Speaker 00: And I do think it's what the Supreme Court said. [00:08:59] Speaker 00: The Supreme Court has said in Melina Martinez that when a defendant can show that a court used an incorrect guideline range in sentencing, [00:09:09] Speaker 00: I can quote the language if the court will bear with me just a quick second. [00:09:13] Speaker 00: The error itself can and most often will be sufficient to show a reasonable probability of a different outcome, i.e. [00:09:20] Speaker 00: prejudice. [00:09:21] Speaker 00: And that's the basis. [00:09:23] Speaker 00: And I think that's where we are. [00:09:25] Speaker 00: The court did say that there are unusual circumstances where that might not be the case. [00:09:31] Speaker 00: And the government feels that this is one of those unusual circumstances. [00:09:35] Speaker 00: The court then went on to elaborate what those unusual circumstances would be. [00:09:39] Speaker 00: That would be those situations where the court made it clear that he would have given the same sentence [00:09:47] Speaker 00: Even if he even if he had used the correct guideline range and the government thinks this falls into one of those exceptions, but it doesn't the the Molino Martinez court was where [00:09:59] Speaker 00: the court used an incorrect range. [00:10:01] Speaker 00: And because the incorrect range coincidentally overlapped with the correct range, he ended up giving a guidelines compliant sentence, even though he was using an incorrect range. [00:10:11] Speaker 00: So I guess in that situation, it's possible to say that even if the court had known what the correct guideline range was, he still might have given the same sentence [00:10:21] Speaker 00: because knowing the correct range wouldn't have necessarily given him any reason for giving a lesser sentence since he never departed from the correct range to begin with. [00:10:31] Speaker 00: That's one situation where using an incorrect range wouldn't necessarily be prejudice. [00:10:39] Speaker 04: But it was there. [00:10:41] Speaker 00: No, in Molina-Martez, it wasn't. [00:10:42] Speaker 00: Even the court there remanded the case for resentencing, because the judge had used an incorrect guideline range. [00:10:51] Speaker 00: And even though the sentence he did give complied with the correct range. [00:10:55] Speaker 04: That's what I'm saying. [00:10:56] Speaker 04: They did remand. [00:10:57] Speaker 00: They did. [00:10:58] Speaker 00: They said, you've got to go back for resentencing, even there. [00:11:00] Speaker 04: No, it was compliant. [00:11:01] Speaker 04: Yeah. [00:11:02] Speaker 00: even though it was compliant with the correct range, they still said the fact that he used an incorrect range in and of itself was enough to remain the case for sentencing, even though the sentence was compliant with the correct range. [00:11:13] Speaker 05: So Mr. Smith, my question is about who decides, there's something sort of odd about us speculating on what the district judge intended or was thinking or whether he was aware that he was going outside the range. [00:11:31] Speaker 05: You know, we often typically remand for the district judge to decide whether there was an ineffective, whether there was ineffective assistance of counsel. [00:11:41] Speaker 05: And here, I take it you're asking us to decide that. [00:11:45] Speaker 05: And I mean, I have some sympathy for that because the district judges are swamped and gonna be more so when we're back in business. [00:11:56] Speaker 05: But why should we decide this? [00:11:59] Speaker 00: I think you can, if it's a clear cut issue, decide if it's ineffective is my understanding of the law. [00:12:04] Speaker 00: I know typically like if it's a questionable issue, then it gets remanded. [00:12:08] Speaker 00: I don't think this is a questionable issue. [00:12:13] Speaker 00: I mean, the attorney forgot to inform the court of the correct guideline range. [00:12:18] Speaker 00: I think it's sort of a, I'm not, I don't mean to [00:12:22] Speaker 00: come down on the attorney. [00:12:23] Speaker 00: It's probably a mistake I've made at some point. [00:12:25] Speaker 05: But the probation office made the same mistake, right, in the PSR. [00:12:29] Speaker 00: But the attorney is the one, the advocate for his client. [00:12:32] Speaker 00: He needs to make, I mean, he needs to check the guidelines and make sure that the court is aware of the correct guidelines. [00:12:37] Speaker 00: And the attorney here made an honest mistake, but he did make an honest, he did make a mistake. [00:12:42] Speaker 00: And I don't think there's any, I don't think there's any question that he, I mean, clearly he did make that mistake. [00:12:47] Speaker 00: And I think clearly there's a reasonable probability [00:12:51] Speaker 00: that had he not made that mistake, the outcome would have been different. [00:12:55] Speaker 00: I mean, here the judge gave Mr. Parks a six year term of supervised release when he believed that he could give him up to life. [00:13:03] Speaker 00: So I think there's definitely a reasonable probability that he would have only given him come down one year from what he did give if he had known that's all the guidelines had allowed him to do. [00:13:15] Speaker 00: So I think there's a reasonable probability but for [00:13:19] Speaker 00: counsel's failure to point out the correct guideline range, the judge would have come to five years. [00:13:25] Speaker 02: And I think that's sort of a, I mean, you don't, you don't think we should take into consideration the fact that everybody missed this. [00:13:32] Speaker 02: I mean, it wasn't just that the judge was lulled into making a mistake by the [00:13:40] Speaker 02: defense counsel, as Judge Pillard pointed out, the probation officer missed it, the judge missed it. [00:13:47] Speaker 02: They all have an obligation to look at the guidelines and make sure they're being applied correctly. [00:13:54] Speaker 00: That's true, Your Honor, I guess, I mean, but I think it can be couched. [00:13:58] Speaker 00: And I mean, I think the defense attorney, and you know, I'm speaking as a defense attorney, and I know we make mistakes. [00:14:04] Speaker 00: But I think the defense attorney has an obligation to do that. [00:14:08] Speaker 00: I mean, he can't pass the buck just because the probation officer and the judge didn't do it. [00:14:13] Speaker 00: That doesn't relieve him of his obligations to make sure that the guideline calculations are correct. [00:14:20] Speaker 00: And I know that other people made the mistake too. [00:14:22] Speaker 00: But [00:14:23] Speaker 00: that's still squarely on his shoulders. [00:14:25] Speaker 00: That's why we have a defense counsel there to make sure that those kinds of mistakes get corrected. [00:14:31] Speaker 00: And I know nobody else noticed it, but it's, I mean, it's not like I'm some rocket scientist and I noticed it just by looking at the guidelines. [00:14:41] Speaker 00: It's not that difficult a thing to notice. [00:14:43] Speaker 00: I can't explain why other people didn't notice it, but I mean, it's right there in the guidelines. [00:14:50] Speaker 00: It's a pretty obvious issue. [00:14:51] Speaker 02: Well, maybe maybe the trial judge was lulled, in which case I would feel uncomfortable saying we're changing the sentence to five years instead of sending it back to let him [00:15:07] Speaker 00: I'm not asking you to change the sentence. [00:15:09] Speaker 00: I'm just asking you to remand the case for re-sentencing. [00:15:12] Speaker 00: And the court can be made aware of what the correct guideline provision is. [00:15:17] Speaker 00: And then if the court decides to give six years now that he's been properly informed, so be it. [00:15:22] Speaker 00: We have to live with it. [00:15:23] Speaker 00: I'm just asking you to remand the case for re-sentencing. [00:15:27] Speaker 02: All right. [00:15:27] Speaker 02: I misunderstood Judge Pillard's question. [00:15:29] Speaker 02: OK. [00:15:30] Speaker 02: Any more questions for Mr. Smith? [00:15:33] Speaker 02: No. [00:15:34] Speaker 02: All right. [00:15:35] Speaker 02: Ms. [00:15:35] Speaker 02: Heffernan. [00:15:37] Speaker 03: Good morning, may it please the court, Patricia Heffernan on behalf of the United States. [00:15:42] Speaker 03: I just wanted to step back and just focus on the fact that given that this claim is the sentencing error is before the court on ineffectiveness. [00:15:55] Speaker 03: appellant does need to show a reasonable probability of a different outcome. [00:16:00] Speaker 03: I agree with Judge Wilkins that a lot of this argument sounds as if appellant is pushing for per se, the court to find that per se when the district court has a guidelines calculation error [00:16:15] Speaker 03: it's always going to be prejudicial. [00:16:17] Speaker 03: And that is not the standard under Strickland or under plain error when a case like this is before the court on plain error. [00:16:27] Speaker 03: The prejudice inquiry is the same and the burden is on appellant. [00:16:31] Speaker 03: And in this case, the district court- Just a moment. [00:16:34] Speaker 03: So you do concede that there was deficient performance. [00:16:37] Speaker 03: We did not push back against that. [00:16:39] Speaker 03: That's right. [00:16:40] Speaker 03: We're not arguing that... It's all about prejudice or not. [00:16:44] Speaker 03: Yes. [00:16:46] Speaker 03: And we think that appellant cannot meet his burden of showing prejudice here, given the remarks that the district court made. [00:16:54] Speaker 01: Just before we get into the weeds of the facts, [00:16:57] Speaker 01: Do you agree, it sounded like you were saying that you agree that the prejudice prong of Strickland is essentially the same as the plain error prejudice analysis? [00:17:13] Speaker 03: Yes, I think the court has said that in a case Williams at 358 Fed 3rd 956 and Williams is is helpful in two respects there at page 967 the court. [00:17:30] Speaker 03: referring to its prior opinion in Sarrow, discussed or noted Sarrow's comment about the natural analogy between those two different prejudice inquiries and also cited to United States in Hall where the court embarked on the same prejudice analysis with respect to both plain error and an ineffective assistance claim. [00:17:54] Speaker 03: So it's helpful in that respect, but it's also helpful in that the court there said that the burden remained squarely on a defendant to provide the court with a basis for suspecting that a reduction in his sentence is sufficiently likely to justify a remand. [00:18:10] Speaker 03: And here, appellant can't make that burden because of the remarks that the district court said. [00:18:16] Speaker 03: When the district court [00:18:18] Speaker 03: In rejecting the argument that the statutory term of supervised release could be as low as two years, the court said at [00:18:33] Speaker 03: A132 in Appellant's appendix that whether the five years is required or not, I do think it's required, but regardless of whether it would be required or not, I would come out at six years anyway. [00:18:47] Speaker 03: And Appellant hasn't addressed the fact that the court didn't just say I'd come out at six years. [00:18:54] Speaker 03: The court gave very compelling reasons for why six years was appropriate. [00:18:59] Speaker 03: He commented on the fact that the defendant had been acting as a pimp for five years every single day. [00:19:08] Speaker 03: There were three victims in this case. [00:19:11] Speaker 03: He was glorifying this lifestyle. [00:19:15] Speaker 03: his criminal conduct was his lifestyle and his career. [00:19:19] Speaker 03: The court considered the comments and the defendant's conduct while he was working as a pimp, the kinds of things he said over the internet on Instagram, his advertising of these women, and said that it didn't appear to the court that the defendant thought that there was really anything wrong with what he was doing. [00:19:40] Speaker 03: And even at the point of the sentencing hearing, the court remarked that the defendant was not showing remorse. [00:19:46] Speaker 03: And the court was extremely concerned about the defendant returning to this lifestyle after what it termed a very moderate term of incarceration. [00:19:55] Speaker 05: Just at a logically prior point, the district judge [00:19:59] Speaker 05: Typically, the district judge, it's within his authority to depart from the guidelines. [00:20:05] Speaker 05: Yes. [00:20:06] Speaker 05: Fully within his authority. [00:20:08] Speaker 05: But the district court also has an obligation to show an awareness of departure and to explain a departure. [00:20:13] Speaker 05: Isn't that correct? [00:20:14] Speaker 05: That's correct. [00:20:15] Speaker 05: And here, the district court didn't do that, right? [00:20:19] Speaker 05: That's right. [00:20:20] Speaker 05: And in fact, the district court noted on the record that neither party nor the pre-sentence report included any grounds for departing [00:20:29] Speaker 05: from the applicable guidelines range. [00:20:32] Speaker 03: I just want to make sure we're here that this would be a variance. [00:20:38] Speaker 03: rather than a departure. [00:20:39] Speaker 03: And I'm not trying to split hairs. [00:20:41] Speaker 03: I'm just trying to make sure I'm- Go ahead. [00:20:45] Speaker 03: Yes, nobody had made that argument. [00:20:48] Speaker 03: But this case is not before the court on a preserved claim of guidelines error. [00:20:55] Speaker 03: Then we would be in a different situation, perhaps. [00:21:00] Speaker 03: Here, I think that the standard of review [00:21:04] Speaker 03: is important and it drives the court's inquiry. [00:21:07] Speaker 03: I think here, given everything the court had to say about why it felt that six years in particular was appropriate, that appellant cannot show a reasonable probability of a different sentence. [00:21:20] Speaker 03: I think this record makes clear that if this court were to send this case back, that it would be futile because the court would simply say, for the reasons I've articulated at great length at the sentencing hearing, [00:21:32] Speaker 03: I acknowledge that the applicable advisory term of supervised release is five years, and I'm going to vary to six. [00:21:42] Speaker 05: Well, so tell me why you think it makes a difference, the variance versus the departure. [00:21:48] Speaker 03: Well, I, my understanding is departure or specific departures [00:21:53] Speaker 03: you know, listed in the sentencing guidelines. [00:21:57] Speaker 03: So I just wanted to, you know, I'm not, you know, this isn't a 5.0. [00:22:00] Speaker 03: It's been quite a while since I've had a departure case. [00:22:03] Speaker 03: So I can't spell it off the, the particular numbers of the provisions, but I, so, [00:22:11] Speaker 03: And variances are certainly looser. [00:22:15] Speaker 03: We're not trying to fit a square peg in a square hole that's identified by the guidelines. [00:22:20] Speaker 03: It's simply that the district court has discretion to vary from the recommended term of supervised release. [00:22:32] Speaker 05: So here are two things that struck me. [00:22:35] Speaker 05: Because at first, when I was reading, I found your argument quite persuasive that the district judge says, I want six when he's being pushed. [00:22:47] Speaker 05: And it was, as you acknowledged, is a different argument. [00:22:49] Speaker 05: It was a defense argument for going lower. [00:22:51] Speaker 05: And he says, I'm not going there. [00:22:56] Speaker 05: But he also explicitly talked about it in terms of the range. [00:22:59] Speaker 05: And he says, this is not. [00:23:01] Speaker 05: the worst, and he said it warranted a low end of the guidelines. [00:23:08] Speaker 05: He talked about the defendant's criminal history as modest, and he rejected what the government was then pressing as, quote, already reflected. [00:23:18] Speaker 05: in the guidelines range. [00:23:20] Speaker 05: So the notion that he would have had he understood the guideline to be five years, nonetheless, in post six is to me that that really raises a substantial question. [00:23:33] Speaker 05: And the other thing that I thought, you know, in terms of this judge, he gave the two years imprisonment even in the face of saying, you know, frankly, the guideline here is a modest guideline. [00:23:47] Speaker 05: But he stuck to it. [00:23:48] Speaker 05: So I think you have reason to believe that this is a judge, at least in this case, who is really taking the guideline and the lodestar character of the guideline seriously, doesn't say, I'm going upward for this reason. [00:24:04] Speaker 05: And he could, on remand, do that. [00:24:08] Speaker 05: But to me, those facts, [00:24:12] Speaker 05: make me confident that that is not what this judge was doing in this sentencing. [00:24:20] Speaker 05: That he wasn't saying, I know it's five years, or even if five years were the guideline range, I would think this person's conduct is more serious. [00:24:31] Speaker 05: The record does not support that narrative. [00:24:34] Speaker 02: See, that's interesting, Judge Pillard, because I have a different slant and that affirms what you said earlier. [00:24:43] Speaker 02: That is, we shouldn't speculate on what the trial judge did or didn't do. [00:24:49] Speaker 02: It seems to me that he thought, well, I'll give him a taste of prison the two years. [00:24:57] Speaker 02: But what I'm really worried about is when he gets back out on the street, [00:25:01] Speaker 02: and starts again what he describes himself as a cut above the average pimp. [00:25:11] Speaker 02: I think a pimp is the pimp period. [00:25:13] Speaker 02: And I think that's what, but again, you think one thing, I think another from what the district judge did, but that's the, I think the risk in our trying to predict what this judge will do. [00:25:30] Speaker 05: Right. [00:25:31] Speaker 05: So I think we do need, I agree, we would remand for resentencing. [00:25:35] Speaker 03: I'd like to address just what you had to say with respect to the court's remarks. [00:25:41] Speaker 03: As I read the court's remarks, with respect to, I think the court had different things to say with respect to the term of incarceration. [00:25:51] Speaker 03: and the term of supervised release. [00:25:53] Speaker 03: I read the court's remarks with respect to choosing, I think the guideline range was 18 to 24 months and the court chose 22. [00:26:02] Speaker 03: And the court said that it was choosing 22 because he didn't think that the court, that the defendant deserved the top. [00:26:10] Speaker 03: And it certainly also didn't deserve the bottom of the guideline range. [00:26:14] Speaker 03: And it explained that the appellant's criminal history wasn't [00:26:20] Speaker 03: totally too severe. [00:26:22] Speaker 03: I think he said it wasn't the worst in the world. [00:26:25] Speaker 03: And the court also discussed the fact that in some ways the defendant here, the appellant here was not what one thinks of as the stereotypical pimp. [00:26:34] Speaker 03: There was no evidence that he was beating up these women, he said. [00:26:37] Speaker 03: And so I think that what the court was saying there was this could have been worse. [00:26:43] Speaker 03: And so I'm not going to give him the top of the range with respect to incarceration. [00:26:50] Speaker 03: But it's also quite clear that it's going to be a problem when he's released. [00:26:54] Speaker 03: I've got concerns about deterring him. [00:26:57] Speaker 03: And so I think it's important to pull apart those remarks, because I think the remarks that Your Honor was referring to were really with respect to how much punishment [00:27:07] Speaker 03: the court thought appellant was warranted in this case, as opposed to the very different question of how much supervision is gonna be required to make sure that his conduct is detoured and the public is protected. [00:27:23] Speaker 03: So I think those were two different discussions. [00:27:26] Speaker 03: And I don't think that the mitigating factors that the court referred to with respect to the term of incarceration [00:27:34] Speaker 03: bleed over and confuse the court's very clear remarks, I think, about what it thought the term of supervised release was warranted in this case. [00:27:45] Speaker 03: And so that's why when the court says, hey, even if I could go down to two or even if five isn't required, I still think six is the right number. [00:27:53] Speaker 03: And for the six compelling reasons that it lists on the same page of that transcript, which is A132. [00:28:02] Speaker 03: So I think under those circumstances, this court cannot say that there's a reasonable probability that the district court would have imposed a lower sentence. [00:28:13] Speaker 03: And I did, I wanted to just push back on one argument appellant is making, which is this notion that [00:28:21] Speaker 03: First of all, we shouldn't muddle the inquiry. [00:28:25] Speaker 03: The burden remains on appellant. [00:28:28] Speaker 03: But when appellant argues that only where the district court has acknowledged the possibility of the correct guideline, can this court [00:28:40] Speaker 03: find no prejudice, which isn't the inquiry anyway. [00:28:43] Speaker 03: But I would point out that if the court is acknowledging the correct guideline, you wouldn't be reaching a harmlessness analysis because you'd have a court that says, well, I recognize this might be the correct guideline and I would still reach the same result. [00:28:55] Speaker 03: Well, then you'd have alternate sentences, one of which is correct and no error in the first place. [00:29:02] Speaker 03: But, so I don't think that that's the proper legal framework to be viewing the prejudice lens through. [00:29:11] Speaker 05: I'm sorry, what's not the proper legal framework? [00:29:13] Speaker 05: I just missed the distinction you're making. [00:29:15] Speaker 03: Well, it's in the Pellants Reply Brief, and I think I heard him argue here only where the court has recognized the correct guideline [00:29:29] Speaker 03: Can the court find the error harmless? [00:29:32] Speaker 03: First of all, we're not here on a harmless error analysis, so I wanted to correct that. [00:29:35] Speaker 03: It's appellants burden show a regional probability of a different outcome. [00:29:40] Speaker 03: But in framing the appellants, that argument about prejudice and a prejudice inquiry [00:29:47] Speaker 03: That's really the factual scenario he's setting forth is a situation where there really is no error in the first place. [00:29:57] Speaker 03: This notion that if the district court acknowledged the correct guideline, then there might not be prejudice. [00:30:04] Speaker 03: Well, if the district court has acknowledged the correct guideline, then there really would be no error. [00:30:10] Speaker 01: What about Melina? [00:30:11] Speaker 01: I'm sorry. [00:30:13] Speaker 03: Go ahead. [00:30:14] Speaker 01: What about Molina Martinez, where the district court used the wrong guideline. [00:30:21] Speaker 01: And even though it used the wrong guideline, it ended up giving a sentence that was within the correct guideline. [00:30:32] Speaker 01: And the Supreme Court nonetheless found prejudice under Strickland and sent it back. [00:30:42] Speaker 01: Here, [00:30:45] Speaker 01: the district court used the wrong guideline and imposed a sentence that was outside of the correct guideline. [00:30:55] Speaker 01: But you're saying that we shouldn't send it back because it was within the statutory range. [00:31:05] Speaker 01: And the district court recognized that that [00:31:13] Speaker 01: I guess the district court said that rejected an argument that it could go below what turned out to be the correct statutory range of five years. [00:31:26] Speaker 01: But, but I mean, isn't this at least kind of as a reasonable probability of a different outcome as Melina Martinez? [00:31:38] Speaker 03: I don't think so, Your Honor. [00:31:40] Speaker 03: And here's why. [00:31:41] Speaker 03: In Martina and Molina, Martina is something just refer to it as Molina because I keep switching the names around. [00:31:47] Speaker 03: But in that case, the district court rejected the government's argument that Molina be sentenced at the top of the guideline range and imposed a sentence at the very bottom of the guideline range. [00:32:00] Speaker 03: And that gave rise to a reasonable inference that the district judge, it's reasonably probable that the district judge intended to sentence Molina at the bottom of the guideline range, whatever the proper guideline range was. [00:32:16] Speaker 03: And I think that's a fairly obvious inference. [00:32:22] Speaker 03: And what the court did in Molina was simply reject the Fifth Circuit's categorical rule [00:32:29] Speaker 03: that a defendant can never show a reasonable probability of a different outcome based on the error alone. [00:32:35] Speaker 03: That's all Molina stands for. [00:32:41] Speaker 03: So Molina didn't attempt to cabin situations in which the courts can find that there's no reasonable probability of a different outcome. [00:32:51] Speaker 03: And Molina recognizes, and all of the courts, Strickland and Plain Air or Pregis inquiries recognize that the court looks to the totality of the circumstances. [00:33:01] Speaker 03: So it's not just here, given the standard of review, it's not just the fact of the error. [00:33:06] Speaker 03: But is there a reasonable probability that if this court sends it were to send this case back to the district judge, the district judge would impose a different sentence. [00:33:16] Speaker 03: And the remarks that the judge made here make clear that there is no reasonable probability that it would have done that. [00:33:22] Speaker 01: But the district judge also here gave what he thought was a sentence near the bottom edge of the guidelines for supervised release, right? [00:33:38] Speaker 01: Correct. [00:33:40] Speaker 01: So why doesn't that auger as to some reasonable probability that if he knew that the guidelines was actually five years that, you know, again, we don't know anything to a certainty, but why isn't there at least a reasonable probability that he would say, well, yeah, five years seems enough. [00:34:02] Speaker 03: because the court said that six was the number it wanted and that it would have imposed six even if it could have, even if the bottom had been two. [00:34:11] Speaker 03: So we've got the court said, even if I could go down to two, accepting the appellants argument, I'd still impose six. [00:34:21] Speaker 03: And so that's why we know that additional information informs us that the district judge thought that in order to deter this guy, which was an incredibly concerning thing for the district judge, given all the circumstances and facts of the offense conduct here and the lack of remorse at sentencing, it felt that six years was what was going to be required, was the appropriate term of supervised release. [00:34:48] Speaker 05: Although Ms. [00:34:49] Speaker 05: Heffernan, also the district judge asked the prosecutor, he said, I haven't seen a case in which the supervised release term was this long. [00:35:03] Speaker 05: What makes this a case in which such a lengthy period is warranted? [00:35:08] Speaker 05: So the district judge is also expressing some discomfort [00:35:12] Speaker 05: about what he sees as a pretty robust period and he makes his peace with it. [00:35:20] Speaker 05: But I know you're in an awkward position here because [00:35:24] Speaker 05: You're saying this is what the district judge meant, but also resisting a remand to this very district judge. [00:35:30] Speaker 05: And I guess part of the question is, what's wrong with that? [00:35:33] Speaker 03: In the government's view, it's important that the standards of review have meaning and that the prejudice inquiry isn't eroded. [00:35:42] Speaker 03: But I would say what the district court was pushing back on was the government's recommendation of a 10-year period of supervised release, wasn't comfortable with that, didn't impose that. [00:35:52] Speaker 03: But I would just point out also, the appellate pled guilty to one count of this violation, although he had been engaged in this conduct daily for five, maybe even 10 years. [00:36:10] Speaker 03: The district court is aware of that too, which is why it was concerned about deterrence. [00:36:16] Speaker 03: This is not a case where there was one transportation one time, [00:36:20] Speaker 03: into the district. [00:36:22] Speaker 03: And so that informs the district court's decision. [00:36:26] Speaker 03: And that's why this defendant is very different from other defendants. [00:36:31] Speaker 03: And again, the inquiry here isn't, does the court have ultimate confidence about what the district court was thinking? [00:36:43] Speaker 03: The inquiry is, is there a reasonable probability if this court were to send the case back that there would be a different [00:36:48] Speaker 03: sentence imposed. [00:36:49] Speaker 03: And I think for all of the reasons and the facts of this case and the remarks that the district court made, including even if I could go down to two, I'd impose six. [00:37:00] Speaker 03: Appellant can't meet that burden here. [00:37:03] Speaker 01: Council, suppose, you know, we were [00:37:12] Speaker 01: sympathetic to your argument but we were also sympathetic to the argument made by appellant that we can't have a scenario where the district court can say kind of even if this and even if that I would still give you this sentence because ultimately [00:37:42] Speaker 01: then we're going to create a situation where the guidelines are meaningless. [00:37:47] Speaker 01: We need to enforce the Supreme Court's admonition that the district court is always supposed to start with a correct guidelines calculation and then go from there in determining what the sentence can be. [00:38:07] Speaker 01: And certainly they can vary upward or downward [00:38:11] Speaker 01: but then they have to explain that in that if we simply affirm here, the argument is that we're going to erode that kind of fundamental premise of sentencing. [00:38:28] Speaker 01: Why shouldn't we be concerned about that? [00:38:32] Speaker 01: And how could we write an opinion here that wouldn't do that? [00:38:36] Speaker 03: I think that that would be a concern if this case were before the court and preserved error where the court was reviewing for harm. [00:38:47] Speaker 03: But here the standard of review is that the appellant has to show a reasonable probability of a different outcome. [00:38:56] Speaker 03: And so the court, I don't think the court needs to address, I don't think the court is eroding the import of the guidelines and the court doesn't need to address that or accept that argument. [00:39:10] Speaker 03: Because of the standard of review, the inquiry is a specific and focused one. [00:39:15] Speaker 03: And it's whether, had the district court known the correct [00:39:21] Speaker 03: term of supervised release, is there a reasonable probability that it would have imposed a different sentence? [00:39:26] Speaker 03: And the record here clearly, I think, says that no, it wouldn't have imposed a different sentence and that a remand would be futile because on remand, given all the court's remarks about the seriousness of this offense, the time it went on, the fact that this was his lifestyle and his career, [00:39:45] Speaker 03: All the court would say on remand on this record is, for the reasons that I stated at the prior sentencing hearing, I acknowledge now the guideline range, and I'm bearing to six years. [00:39:58] Speaker 03: So under the facts of this case and the remarks that the court made, appellant can't meet his burden of showing a reasonable probability of a different outcome. [00:40:06] Speaker 03: And that's really the court's analysis. [00:40:08] Speaker 03: And that's the opinion that the court would write. [00:40:10] Speaker 03: I think the court would start with the starting point is, [00:40:14] Speaker 03: What is the burden and can it be, and has it been met here? [00:40:19] Speaker 03: And I think the answer to that is no. [00:40:22] Speaker 02: Well, it may be that we are, we might create a different type of remand and call it a ministerial remand. [00:40:29] Speaker 02: That is for the district court to say, I was wrong. [00:40:33] Speaker 02: I made a error. [00:40:36] Speaker 02: It does not change my view. [00:40:40] Speaker 03: Your honor, I think some circuits have done that. [00:40:44] Speaker 03: Right. [00:40:45] Speaker 03: I'm not aware whether the circuit has. [00:40:47] Speaker 03: In the government's view... I don't think we have. [00:40:51] Speaker 03: Well, I don't know. [00:40:51] Speaker 03: In the government's view, that would be a pointless remand, but I think it's certainly open to the court to do that. [00:40:58] Speaker 03: I don't have any case law that says that the court... [00:41:02] Speaker 03: isn't authorized to do that. [00:41:05] Speaker 03: But we do think that here, for all the reasons I've said, I think several times, that appellant has not and cannot meet his burden here. [00:41:14] Speaker 02: All right. [00:41:15] Speaker 02: Mr. Smith, why don't you take two minutes for any response? [00:41:23] Speaker 00: Thank you, Your Honor. [00:41:24] Speaker 00: I guess two points I'd like to focus on. [00:41:27] Speaker 00: One is, you know, the [00:41:29] Speaker 00: Governor counsels point separate has pointed out that the court said I like the six year sentence and here are my non guideline reasons for why I think the six year sentence is appropriate. [00:41:40] Speaker 00: And they're arguing this shows he wouldn't have deviated from that. [00:41:45] Speaker 00: Had he even known that there was a five years was all the guidelines allowed. [00:41:49] Speaker 00: But, you know, just because the court [00:41:52] Speaker 00: gave non-guideline reasons for the sentence it imposed, that doesn't mean it would have not taken seriously compelling guidelines related reasons for giving a lesser sentence. [00:42:06] Speaker 00: I mean, the court knew as well as any of us that having the correct guideline range is the load star, the starting point for any sentence. [00:42:14] Speaker 00: So if he had known that five years was all the guidelines permitted, [00:42:18] Speaker 00: That would have given him a compelling reason for giving a sentence less than six years, a reason every bit as compelling as the reasons he picked, the non-guideline reasons he picked for giving a six-year sentence. [00:42:32] Speaker 00: So it really is an open question as to what he would do at sentencing if the case were put back before him and he were then advised that a five-year term of supervised release is all that the guidelines allow. [00:42:48] Speaker 00: And I have to show a reasonable probability that the outcome would have been different. [00:42:53] Speaker 00: But that's not, I mean, I don't even have to show that the attorney's deficient performance more likely than not resulted in the negative outcome. [00:43:00] Speaker 00: I've just got to show that it undermined confidence in the outcome. [00:43:04] Speaker 00: And I don't see how it can be said with any confidence here that if the court [00:43:09] Speaker 00: had been informed that the guidelines only allowed five years, he would have come down off that six-year term of supervisor lease he gave. [00:43:18] Speaker 00: And because of that, we have to remand the case to the district court, telling that the guidelines only allow five years, and then let him factor that new information, this new compelling reason into his calculus. [00:43:31] Speaker 00: I guess the final point I'd like to make, and it's sort of picking up on something [00:43:35] Speaker 00: Judge Wilkins had said, the government's position appears to be that this court sort of insulated itself from review on the guidelines because it gave non-guidelines related reasons for the sentence, the above guideline sentence that it imposed. [00:43:51] Speaker 00: Courts almost always give non-guideline related reasons for the sentences they imposed. [00:44:00] Speaker 00: So in almost every single case, [00:44:03] Speaker 00: the government can make this argument even in those cases where the judge in every single case where the judge departs or unknowingly varies from the guidelines. [00:44:11] Speaker 00: He's not even aware of the guidelines. [00:44:13] Speaker 00: every single one of those cases when a judge gives an unknowingly gives an above guideline sentence there will always be evidence that the judge had non-guideline related reasons for the sentence he imposed so if we allow the government's argument to stand that even when a judge gives an unknowingly gives an above guideline sentence that will be okay just as long as he gives non-guidelines related reasons for that sentence [00:44:39] Speaker 00: There's no point in the sentencing guidelines. [00:44:42] Speaker 00: And that's where I think we are. [00:44:45] Speaker 00: And that's another reason I think we need to remand this case to the district court to have him look at it now being fully informed. [00:44:53] Speaker 00: Thank you. [00:44:55] Speaker 02: All right. [00:44:56] Speaker 02: No questions for Mr. Smith. [00:44:59] Speaker 02: All right. [00:44:59] Speaker 02: Mr. Smith, you were appointed by the court. [00:45:01] Speaker 02: and you've done really an outstanding job. [00:45:05] Speaker 02: These guidelines are complicated. [00:45:07] Speaker 02: It's like a minuet. [00:45:09] Speaker 02: And I know on my appraisal, I'm going to say that I put you at the top of the list for representation in these cases, certainly. [00:45:20] Speaker 02: And Ms. [00:45:21] Speaker 02: Heffernan, it is always a pleasure to see you. [00:45:25] Speaker 02: So thank you.