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Case number 19-3071.

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United States of America versus Russell Harrison, also known as Russ, a balance.

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Mr. Orenberg for the balance.

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Mr. Coleman for the appellee.

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Good morning, Mr. Orenberg.

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We'll hear from you.

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Thank you, Your Honor.

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Good morning.

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May it please support.

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My name is Alan Orenberg.

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I represent Russell Harrison in this case.

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I would first like to address the issue that the district court imposed a substantively and procedurally unreasonable sentence when it imposed an upward variance and sentenced Mr. Harrison to 50 months over the applicable sentencing guidelines.

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The district court, in my view, improperly deviated from the rules that are clear that when there is going to be a variance in this case, there must be

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justification to sufficiently compel to support the degree of the variance.

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I'm citing to the case United States versus Brown of this circuit from 2015.

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In addition, the trial judge in any case when there's going to be an upward variance must state with specificity the reason for the imposition of a sentence different from that described by the appropriate guidelines calculation.

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In the case of Mr. Harrison, the guideline calculations was 60 months or five years.

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The district court eventually imposed a sentence of 110 months, which is 60 months higher, excuse me, 50 months higher than the 60 month sentence that is prescribed by the guidelines.

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For whatever reason, the district court did not in the sentencing hearing

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describe with specificity the reasons why he varied upward.

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In fact, if I can draw the court's attention to the appendix, page 167 at the bottom, through almost the bottom of page 168, the district court in this case made some general observations about sentencing procedures

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And in conclusion, he just said, I've taken in consideration all three approaches that have been advanced.

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There have been considerable discussion about calculation of a sentence using advisory sentencing guidelines.

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And quote, I have demonstrated to the court, I've come up with what I think is a fair sentence as I can under the circumstances.

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Well, there's no specificity given by Judge Leon in this case.

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Mr. Orenberg, in fairness, Judge Leon on page 167 references his prior concerns.

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And wasn't there a hearing of some sort in May in which various aspects of the sentence and concerns that the court had were discussed?

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Yes, Judge acts and the the sentencing began back in May, included in September.

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Yes, back in May there was considerable considerable discussion about the court's proposed variance at that time.

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My concern is and what I raise here is not only in the transcript on the final in the final sentencing hearing conducted in September, but that on the statement of reasons itself on page 218 of the appendix at the very bottom section D state the basis for a variance.

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Again, Judge Leon just gave a quick two sentence

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This statement quote severity and consistency of criminal conduct some of which is violent in nature, including stabbing of a fellow inmate while pending sentence protection of the community and the defendant deterrence both specific in general.

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This is a very short concise.

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you know, statement of reasons why he gave this variant sentence.

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When I submit to the court that he should have been more detailed, he should have been more thorough.

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Even if he was more detailed in the statement of reasons, would that have satisfied the law with respect to his obligation to give the reasons at sentencing?

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I guess I'm not sure why the detailed or not detailed statement of reasons matters.

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in terms of the determination of whether he was procedurally unreasonable at sentencing?

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I'm going to stand by the United States code itself, 3553C2, which requires the court to state with specificity the reasons for the sentence or the variance in this case.

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And it's my position that he did not do so in a proper manner.

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Suppose we think the first statement was adequate but was given at the wrong time.

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There may be a legal error to the extent the statement of reasons wasn't given at the moment of sentencing, but we know perfectly well what the judge was thinking and why he thought

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a sentence substantially above five years was appropriate.

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So on the procedural point, what would be the point of remanding for him to just say that he meant what he has already told us?

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With regard to the procedural point, I'll also direct the court's attention to remind this court that I submitted that Judge Leon used some improper factors when considering the very- That's a separate point.

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But just on the failure to state, usually procedural reasonableness remands are when the district court doesn't say enough.

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And here, putting aside the Fourth Circuit issue for a moment, let's just assume he did say enough.

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He just didn't say it at exactly the right time.

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It seems to be like the case where there's an error, but no prejudice.

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Well, the prejudice to my client is he's the one who's doing the additional significant time.

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Whether or not Judge Leon did it

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At the appropriate time, I don't.

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Well, my position is he did not at the conclusion of the sentencing hearing or very near the conclusion of the hearing adequately and with specificity explain his reasons why he was going to vary upward in such a dramatic, considerable amount.

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So you're saying that the timing does matter?

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Yes.

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So even if he had at the May hearing,

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explained extensively what he was thinking at that time.

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The sentencing was in September.

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And is it your position that when he imposed the sentence, he needed to repeat perhaps what he had previously said?

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Yes, Your Honor, that's my position.

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And I don't think anyone would disagree that Judge Leon has the adequate wherewithal to to repeat or to to fully explain his reasons, but he didn't do so at the appropriate time, which was at the sentencing hearing on in September of that year.

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All right, so can you talk about the significance of any of

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the discussion of the Fourth Circuit standard and Winstead, I understood you also to be concerned about the potential that the district court actually relied on an improper factor.

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So why is it improper?

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Well, I mean, it's improper because the government chose where to bring this prosecution.

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It chose to bring it in the District of Columbia, could have brought it in Maryland and perhaps elsewhere if there was

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if there was a legal nexus of doing so.

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And I think the government should be held to the law of our jurisdiction because it chose to bring the case, the prosecution here in the District of Columbia.

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It's somewhat unfair that the government later on in a sentencing posture now brings in, and I'm going to say infects the sentencing process, the sentencing discussions that were had,

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with this argument that but for the fact that he could have been prosecuted in Maryland, he would have received a 15-year mandatory minimum.

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I think that it was improper for the government to raise that before our district court and the District of Columbia.

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But can I just ask you because there is an applicable sentencing

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statute and principle related to unwarranted sentencing disparity.

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Correct.

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So I'm wanting you to explain what you mean that they couldn't talk about what would happen elsewhere.

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I mean, I understand they did not choose to sentence him or did not choose to prosecute him in Maryland.

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But does that mean that nothing about another jurisdiction is relevant at the current sentencing?

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No, I'm not saying that, but I'm saying given the full background of what happened in this case, including there's referencing to his, at that time, he was pending sentencing in another case in the District of Columbia for assault within the DC jail.

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The culmination or all of that infected the sentencing considerations of the district court in this case.

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But how does it infecting in some sort of an improper pejorative way for the district court to consider other criminal conduct, i.e.

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the stabbing in the jail, or as Judge Jackson mentioned, you know, the need to prevent unwarranted sentencing disparities, which was explicitly set forth in the statute 3553A.

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Well, that's a very good point, Judge Wilkins.

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Sure, the court is free to consider all the factors under 3553A.

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But I guess in the heat of the discussion that the parties were having in May at the initial sentencing hearing, it elevated the stakes, if you will, for Mr. Harrison to the point where

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where he stood convicted of only 924C, the guidelines was a flat 60 months.

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All of a sudden the court, the government's asking for 132 months.

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The defense at the time was asking for a range, it was 75 to 81 months, which sounded like a reasonable proposition for the court to consider at that time.

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But the court nevertheless went to a higher amount of 110 months without

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In my view, or with in my view improperly or somehow considering all these factors when it just should have considered the flat initially considered the flat 60 months sentence for the 924 see, as I pointed out, Mr Harrison.

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is admittedly, or in my view, a minor role player in the overall conspiracy of the case.

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There was one other gentleman, the leader of this case, who got a sentence of 192 months.

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Four others in this case received far less sentences than Mr. Harris, and two of the co-defendants are yet to be sentenced in this case.

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But Mr. Harrison was a minor participant when it came to the drug conspiracy activity.

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Sure,

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when he was arrested or in his home was found a large cache of weapons and ammunition, but that's all it was.

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And that's what he pled to was the 924 C count.

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I noticed I'm into my rebuttal.

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I think I'm in my rebuttal time, but that's what purple means.

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So I'd like to reserve a little bit to respond to Mr. Cohen.

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Before you do, Mr. Orenberg, can I just ask you one more question, please?

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I'm interested in your ineffective assistance claim, and I want to make sure that I understand exactly what you're arguing.

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In the blue brief, you say that Mr Harrison's Superior Court counsel fell short because he failed to continue the Superior Court case.

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And I'm trying to understand whether in using the term case, you're referring to the case as a whole, including both

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failure to delay the plea to the new misdemeanor infraction and the sentence?

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Or are you saying that it's ineffective just because the sentence was not delayed?

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It's the latter, Judge Jackson.

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All right.

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With that, I'd like to reserve a little bit of time for rebuttal.

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All right.

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We'll hear from Mr. Cohn.

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Good morning.

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May it please the court, Nick Coleman for the United States.

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I'd like to begin by addressing appellant's arguments about the substantive and procedural unreasonableness, as he argues of a sentence, and then answer any questions that the court may have about his other two claims.

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I think it's important to note here, a palant had, first of all, prior convictions for assault with a dangerous weapon, carrying a pistol without a license, attempted possession with intent to distribute PCP and attempted possession with intent to distribute cocaine in his record.

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In this offense, he had six loaded semi-automatic weapons in his apartment, an additional 80 rounds of ammunition, a firearm silencer, and three gun magazines, one of which could hold 50 rounds.

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While he was awaiting sentencing in this case at the jail, a parent apparently more than once stabbed another inmate with the help of another inmate.

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Uh, the entirety of that record, uh, made clear why the district court varied upwards and why defense counsel didn't ask for a more fulsome explanation.

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Uh, even when there was said that the district court did say at the end of the sentencing proceeding, are there any questions?

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Can I just ask you a couple of things?

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First of all, um, it would seem to me that the statute is such that regardless of how

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clear a record may be concerning the various factors, the district court is obligated to state at sentencing the reasons.

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Am I wrong about that?

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I mean, we don't have a world in which the district court can say two lines, I'm imposing a fair sentence, and even as clear as the record may be, that's enough, right?

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I think that's obviously, yes, that is what the statute says.

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I think it is important to note that this case does, and this claim does come before this court under the plain error standard of review, because the defendant did not object and say, that's an insufficient and inadequate statement of reasons, you're wrong.

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I think this court needs to be more specific.

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So I think at that point, even if this court were to say, look, that's error,

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We still have to answer the question on this entire record, was there sufficient prejudice to him?

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And was that error so plain or obvious that this court needs to step in and say, we have to remand this for essentially more reasons?

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What about the potential that the district court relied on an inappropriate factor?

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Because to the extent that you are suggesting, and maybe you didn't in your recitation, but are you at all relying on the Fourth Circuit when said issue?

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Because that was a big focus of the previous hearing.

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Okay, so, so I think the.

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It is very clear it first of all it's hard for me to completely understand appellants argument about how this was an improper factor.

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It certainly would have been improper obviously if the district court had said, I'm just going to treat Winston is not applying in this case, either because you know well he pleaded guilty before Wednesday came out, or whatever.

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but I'm going to apply the career offender guideline.

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We know that Judge Leon did not do that here, because he doesn't impose a 15-year sentence.

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He varies upwards, but not anywhere near the 180 months.

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Mr. Coleman, we don't know, right?

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Because he doesn't tell us what he's relying on.

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He imposes a sentence that is greater than the guideline sentence, but yes, admittedly less than the 15 years.

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And I'm not sure there's anything in the record that explains how he reaches the number that he reaches.

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Do you see that somewhere that I'm not aware of?

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So he does not specifically announce why 110 months.

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I can say this.

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If you look at the entire record again, the government asked for 132 months since, which would have been an upward variance of 72 months.

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The defense, obviously it still stated his preference was for 60 months, but said in the alternative, if you're going to do a variance, do 70 to 87 months.

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So that would have been an upward variance of 17 months at the top.

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The 15 month upward variance that the court arrives at is just above the halfway point between the government and the defense recommendations.

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So I think any idea, first of all, that this court, that Judge Leon was relying on Winstead,

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to say something.

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Again, I'm not entirely sure what it is that the appellant is saying was improper here in terms of thinking about how appellant might have been sentenced if he had been prosecuted in Maryland as opposed to the District of Columbia.

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Again, we don't concede that that's improper.

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Isn't Winstead a subject

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an extensive discussion in the May hearing.

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And the district court says at one point, it's just a benchmark, right?

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It's just a guide.

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He never purports to suggest that he will actually apply the Fourth Circuit standard.

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But when the objection of the defense comes that it's improper to consider it,

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the district court appears to defend the consideration of that factor.

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It's a benchmark, he says.

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So I don't understand how that's inconsistent with thinking that he may have reached 110 months on the basis of that benchmark in part.

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He doesn't have to hit it in order to rely on it, right?

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So that's why I'm trying to distinguish between two things.

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And I'm sorry if I haven't been entirely clear about that.

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There are two ways in which consideration of that could have been taken.

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One would have been error, which would have been to say, I'm not going to apply Winstead.

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I think it's unfair.

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That would have been an error, because obviously this court's law applies.

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And at that point, in order to correctly apply the guidelines,

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the court could not apply the career offender enhancement.

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That is not what the district court does here.

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There is another aspect of this, however, which is to consider the entire record of the case and as well as such considerations as avoiding unwarranted disparities between how somebody sentenced in Maryland for the same conduct would have been sentenced versus the District of Columbia.

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that in his discretion, the district judge can consider things like that.

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And I'm not aware of any decision of this court that says that it's improper for a judge to look to that.

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In fact, if anything, this court and the Supreme Court and other circuit courts of appeals have said that judges have very broad discretion in considering different factors, particularly if they're engaging.

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You have posited two potential scenarios.

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I'm trying to understand how you know

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which one occurred here given Judge Leon's lack of explanation.

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I think we know it wasn't the former because he doesn't impose a 15 year sentence or say, I think the guidelines range should have been 180 months.

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And that's what I'm imposing here.

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That would have gone up to the line of saying, and perhaps crossed it of saying, Winstead just doesn't apply.

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Remember, pre Winstead, it would have been 180 months guidelines since.

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That's because it was a career offender.

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So the only way, in your view, for him to have signaled that he was not rejecting Winstead would have been to actually select the career offender sentence.

[00:22:02] Speaker 04:
There's no word in your view that he could have

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appreciated and understood the allegedly improper argument that the DC Circuit was wrong in Wednesday.

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You don't think he could have taken that into account.

[00:22:18] Speaker 00:
So again, I think we should, I think this court has always applied a presumption that, which could be rebutted, but there's a presumption that district judges know and apply the law.

[00:22:32] Speaker 00:
So I think there is certainly no, there's nothing in this record that rebuts that presumption that the district judge was well aware of this court's decision and Winstead understood that the career offender enhancement did not apply under the guidelines.

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And the court does not say, I think his real guidelines range was 180 months.

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And if anything, what I'm doing now is doing a downward variance.

[00:22:58] Speaker 00:
It's very clear.

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He's saying, look, I understand it's a 60-month guidelines.

[00:23:03] Speaker 00:
That's the guidelines.

[00:23:04] Speaker 00:
Can I clarify?

[00:23:05] Speaker 04:
Isn't 180 months ACCA and not career offender?

[00:23:10] Speaker 04:
You keep saying 180.

[00:23:11] Speaker 00:
So I think, though, with the career offender sentence, it would have been.

[00:23:15] Speaker 00:
And again, I apologize if I'm getting this a little bit wrong.

[00:23:18] Speaker 00:
Yes, an ACCA sentence, if the government had charged him

[00:23:21] Speaker 00:
uh as as a career offender if that had been in the indictment um then yes the mandatory minimum sentence

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would have been 15 years.

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I believe the career offender enhancement, I can't remember exactly how much it was, but it would have been a lot higher.

[00:23:39] Speaker 00:
I mean, it would have been substantially higher.

[00:23:42] Speaker 00:
And the government did cite both of those aspects.

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It said, look, in Maryland, he could have been charged under ACA.

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In other words, where the mandatory minimum sentence would have been 15 years.

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because of the Fourth Circuit's approach.

[00:23:56] Speaker 00:
But then you also have this career offender enhancement that would have greatly increased the guidelines range.

[00:24:04] Speaker 00:
We know that Judge Leon did not treat this guideline, his guideline sentence as being affected by the career offender enhancement.

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The only discussion that happened here was what kind of an upward variance should be applied.

[00:24:20] Speaker 00:
That's what the parties were arguing about.

[00:24:23] Speaker 00:
And the court settles this dispute.

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But it's very clear from the record why he does that.

[00:24:29] Speaker 00:
Again, I don't think this is, I think, you know, very similar to what happened in the United States versus Jackson, which we cite in our brief.

[00:24:38] Speaker 03:
Where Coleman is a Brown and in race field case.

[00:24:44] Speaker 03:
We're all plain error cases.

[00:24:47] Speaker 03:
And there are all cases that we reversed and where we vacated and remanded for re-sentencing because of the failure to adequately explain the reasons.

[00:24:59] Speaker 03:
And if you look at the explanations that were given in the Kid Bay, Brown, and Inray Seal case, all of them seem to be more detailed explanations than what was given here.

[00:25:16] Speaker 03:
and yet we sent all of those back.

[00:25:19] Speaker 03:
So if we want to follow our own precedent, why wouldn't we send this one back?

[00:25:23] Speaker 00:
All right.

[00:25:23] Speaker 00:
So I think there are some important distinctions between those cases and this one.

[00:25:30] Speaker 00:
If I could start with the Andre Seale case.

[00:25:31] Speaker 00:
And I just want to make sure that I'm talking about the right one here.

[00:25:35] Speaker 00:
This is 527 F3rd, 188.

[00:25:36] Speaker 00:
Is that the one that your honor is referring to?

[00:25:40] Speaker 00:
OK.

[00:25:41] Speaker 00:
Appellate doesn't cite that here, but what I can say is this.

[00:25:46] Speaker 00:
In that case, which obviously involves the revocation of supervised release, the guidelines range is three to nine months.

[00:26:02] Speaker 00:
The court imposes 18 months, even after the government had recommended only 12 months as a revocation sentence.

[00:26:10] Speaker 00:
The defendant there, although he had violated his supervisor lease there was a pretty substantial dispute about that and the violations themselves were certainly not the most serious.

[00:26:23] Speaker 00:
They involved a failure to communicate with the probation officer.

[00:26:27] Speaker 00:
They were not new offenses.

[00:26:29] Speaker 00:
So part of the problem was that there was a this court clearly implies that that there was a problem, because this court couldn't really evaluate the substantive reasonableness of the sentence, which was apparently you know in this court's view in question, without a greater.

[00:26:49] Speaker 00:
without a greater statement of reasons.

[00:26:52] Speaker 00:
Here, I don't think that there really is any serious question that this was a substantively reasonable sentence for appellant, given his criminal history, given the severity of the offense here, where it's not just one gun, but he's got six guns and a lot of other stuff, given his conduct while pending sentencing, in which he doesn't just

[00:27:18] Speaker 00:
fail to comply with Department of Corrections regulations, but he stabs another inmate.

[00:27:25] Speaker 00:
In light of those factors, I don't think any serious argument can be made that this isn't a substantively reasonable sentence or that it isn't clear from the record why the district court varied upwards.

[00:27:35] Speaker 00:
So that's why I think this is a very different case from Henry's sealed case.

[00:27:39] Speaker 04:
So can I just ask, oh yeah, go ahead, go ahead, I'm sorry, keep going.

[00:27:43] Speaker 00:
So in Brown, I think the bigger problem in Brown was that the court was essentially citing aspects of the defendant's offense and saying that it was more severe when in fact those aspects are really just part of the offense.

[00:27:59] Speaker 00:
That's obviously, you know, that involved child sexual abuse.

[00:28:03] Speaker 00:
So again, there wasn't the same clarity under the record as here as to why it was a much more serious offense than the ordinary mine run of offenses.

[00:28:17] Speaker 00:
This is beyond most 924C offenses, certainly that I've seen.

[00:28:23] Speaker 00:
And I'm sorry, Judge Jackson.

[00:28:25] Speaker 04:
I guess I'm just trying to understand.

[00:28:27] Speaker 04:
So your point, I think, is that

[00:28:34] Speaker 04:
As long as the record is sufficient to support the substantive reasonableness of the unexplained sentence, there really isn't plain error, prejudice, or whatever.

[00:28:50] Speaker 04:
And that the distinction between this case and the others is that in those cases, there could be some question about what the sentence was, but in this case, there's not.

[00:29:00] Speaker 04:
Is that your point?

[00:29:03] Speaker 00:
I think here where the substantive reasonableness of the sentence is so clear, and it really isn't in doubt what factors the court was looking to, that a remand is really just pointless.

[00:29:17] Speaker 00:
There isn't anything that really needs to be said as to why the court varied upward in the way that it did.

[00:29:26] Speaker 04:
Can I just ask you, Mr. Coleman?

[00:29:29] Speaker 04:
Yes, Your Honor.

[00:29:29] Speaker 04:
You keep saying it's so clear.

[00:29:32] Speaker 04:
confusing to me about that is, first of all, we had the part one, to some extent, of the sentencing hearing in May.

[00:29:40] Speaker 04:
He imposed a sentence in September.

[00:29:44] Speaker 04:
Between that time, lots of things happened, including the probation office giving a recommendation, the sentencing in the guilty plea, I guess, or the sentencing in the other case,

[00:29:58] Speaker 04:
The parties have supplemental briefing.

[00:30:01] Speaker 04:
There's a lot of talk about the Fourth Circuit and Winstead and the other case and what its role is.

[00:30:10] Speaker 04:
So to me, as I see this record, there are lots of possibilities as to what the district court relied on in reaching 110.

[00:30:19] Speaker 04:
It's not like there really is only one factor at play.

[00:30:24] Speaker 04:
And so the 110 is plain on the record.

[00:30:28] Speaker 04:
And so I'm just concerned about your your representation that this case is such that we can any anybody with eyes can look at it and see where 110 comes from, because I don't see that in this.

[00:30:42] Speaker 00:
So, I have two responses runner.

[00:30:45] Speaker 00:
The first is again.

[00:30:47] Speaker 00:
This is a plain error case.

[00:30:50] Speaker 00:
I think to hold sort of that anytime a judge fails to give you know a sufficiently you know fulsome explanation at the time of sentencing with that you know satisfies all parties.

[00:31:02] Speaker 00:
As to the as to, you know, the sentence that the judge comes up to to say that that's essentially just per se plain error that must be reversed.

[00:31:12] Speaker 00:
I don't think, first of all, it's not consistent with this course decisions because obviously this court did not reverse in Jackson.

[00:31:18] Speaker 00:
But I think it also sort of you know absolves defense counsel of any obligation to say at the time of sentencing look, I don't think the court has addressed every factor, I don't think the court, could you please explain to me why this happened so that we don't just have seriatim reversals or remands.

[00:31:36] Speaker 00:
for the court to, over the course potentially of months, if not years, provide an explanation.

[00:31:45] Speaker 00:
If the defense wants more of an explanation, it can get one.

[00:31:48] Speaker 00:
But secondly, I think the point is that if there are potential serious errors of law or mistakes of fact that could have been at play,

[00:31:59] Speaker 00:
Or where it could well be that the substantive reasonableness of the sentence may be in question, and this court doesn't want to step in and just automatically say that's a substantively unreasonable sentence before giving the district court a chance to sort of step in and say that.

[00:32:18] Speaker 00:
If you don't have that and we submit you don't have that on this record, then there isn't a need to remand.

[00:32:25] Speaker 00:
There is nothing more that needs to be said because there is absolutely not we submit there is nothing in this record to suggest that judge Leon misapplied the law.

[00:32:35] Speaker 00:
refused to follow this court's teachings that he misapplied the law that he did not understand the facts correctly.

[00:32:42] Speaker 00:
I understand, of course, that appellant makes arguments now that the court didn't adequately consider things about his background.

[00:32:48] Speaker 00:
But the fact is, this is a defendant with a very serious criminal history.

[00:32:53] Speaker 00:
with a very serious offense at issue, and who had committed one of the more serious infractions that you can commit while pending sentencing.

[00:33:04] Speaker 00:
And in light of that record, we respectfully submit there just isn't a need, certainly, he hasn't shown the possibility of prejudice.

[00:33:14] Speaker 00:
that would justify a remand for him essentially to make further arguments to the district judge.

[00:33:22] Speaker 03:
So Mr. Coleman, suppose we had a case where the maximum sentence was, you know, five years and the guidelines range was, you know, 24 to 30 months.

[00:33:39] Speaker 03:
and you know the defense asks for you know 12 months and the government asks for 48 months and the court imposes a guideline sentence of you know 30 months and gives no explanation just says says I'm imposing a guideline sentence I think that's fair and reasonable and that's all the explanation under your view of the law

[00:34:11] Speaker 03:
on plain error review, we would say that that's okay, right?

[00:34:17] Speaker 03:
Because it's clear that that's a substantively reasonable sentence because it's a guideline sentence.

[00:34:25] Speaker 03:
Even if there's no explanation for why the district court didn't go below, very downward as the defense wanted them to, or didn't vary upwards as the government wanted them to, right?

[00:34:41] Speaker 03:
That would there be no plain error if a guideline sentence were imposed in there is no explanation.

[00:34:50] Speaker 03:
That's that's under your view of the law.

[00:34:54] Speaker 00:
That is not, no, that is not our position that that's just a hard and fast rule.

[00:34:57] Speaker 00:
Because again, I think what we would need to know in your honor's hypothetical case is, for example, what were the reasons that the defense came up with for a below guideline sentence?

[00:35:11] Speaker 00:
Did he identify some factor that he thought the guidelines did not address some aspect of the case?

[00:35:18] Speaker 00:
And if he could convince this court that the district court's failure to address that

[00:35:23] Speaker 00:
seriously called into question whether or not the sentence should have been the way that it was.

[00:35:28] Speaker 00:
Or if he came to this court and said, look, there's a reason why the guidelines just would have been substantively unreasonable in my case.

[00:35:36] Speaker 00:
Here's that factor.

[00:35:37] Speaker 00:
Then perhaps he could establish plain error.

[00:35:40] Speaker 03:
Are you aware of any instance where we have said that a guideline sentence was substantively unreasonable?

[00:35:48] Speaker 00:
I'm not I don't think I can identify that offhand.

[00:35:51] Speaker 00:
But again, I'm not going to rule out the possibility that a defendant could could at least make that argument, whether he could make that showing.

[00:35:57] Speaker 00:
I don't know.

[00:35:58] Speaker 04:
So, Mr. Coleman, don't we have here the exact flip side of what you are now saying?

[00:36:05] Speaker 04:
You suggest that if a defendant in Judge Wilkins hypothetical could

[00:36:11] Speaker 04:
argued that the guideline sentence, there was some reason why it was substantively unreasonable and the judge didn't address that, that maybe we'd have a plain error problem.

[00:36:22] Speaker 04:
I see this is exactly the same in the sense that the prosecution in this case said the guideline sentence we think is not sufficient

[00:36:36] Speaker 04:
for many reasons among them, that if he were prosecuted in the Fourth Circuit, you would give him career offender, the DC Circuit got it wrong, et cetera, et cetera, right?

[00:36:47] Speaker 04:
So it's the same argument.

[00:36:48] Speaker 04:
He's saying the guidelines sentence is not enough, Your Honor, and he goes on at length as to why that is.

[00:36:54] Speaker 04:
And then ultimately the district court sentences above the guidelines.

[00:36:59] Speaker 04:
So why isn't that Judge Wilkins hypothetical exactly with respect to

[00:37:05] Speaker 04:
the failure to explain for plain error purposes.

[00:37:10] Speaker 00:
Well, I think the main difference is that that's why we aren't appellants here.

[00:37:14] Speaker 00:
We aren't here arguing that there was plain error committed essentially not in our favor by failing to give an even higher sentence than the one that the district court gave.

[00:37:26] Speaker 04:
I understand.

[00:37:27] Speaker 04:
I'm just trying to isolate the error.

[00:37:30] Speaker 04:
was from the court's perspective, regardless of who brings the argument, the question is when the district court is presented with an argument that's essentially the guideline sentence is insufficient for X reason, you say if it's the defense saying it's insufficient, it's too much, you should give me a lower sentence and the district court doesn't explain why he refuses to do that.

[00:37:58] Speaker 04:
then we might have a plain error problem.

[00:38:01] Speaker 04:
And I'm positing if, as here, someone made an argument that the sentence is, guideline sentence is not sufficient, you should give a higher sentence.

[00:38:14] Speaker 04:
And the district court does do that.

[00:38:16] Speaker 04:
First of all, can't we assume that he relied on all of the factors that were presented, including perhaps an inappropriate one, the Winstead, et cetera.

[00:38:26] Speaker 04:
But even if we can't,

[00:38:28] Speaker 04:
Why isn't the district court charged with prejudicial plain error to the extent that he doesn't explain whether he was motivated by that argument or not?

[00:38:41] Speaker 00:
Well, right.

[00:38:41] Speaker 00:
I think it matters, first of all.

[00:38:44] Speaker 00:
That's why the prejudice component of plain error is so important.

[00:38:49] Speaker 00:
The party asserting plain error has to show how it's substantially prejudiced that party.

[00:38:55] Speaker 00:
And I don't think appellant has made anywhere close to that kind of a showing in this case.

[00:39:02] Speaker 00:
If all of the factors that have been seriously identified are ones that merit, that basically essentially say this should be a sentence above the guidelines range.

[00:39:15] Speaker 00:
And the district court was very clear in May that the whole point was this is going to go above that.

[00:39:20] Speaker 00:
Then the fact that there may have been that the fact that the district court didn't go as far as perhaps the factors should have said, again, if the party that that quote unquote prejudices in that case which it would have to be the government doesn't say.

[00:39:38] Speaker 00:
This prejudices me.

[00:39:39] Speaker 00:
And so it's a plain error.

[00:39:41] Speaker 00:
So please reverse.

[00:39:42] Speaker 00:
If the party isn't doing that, then this court doesn't have reason to do that.

[00:39:47] Speaker 00:
But here, of course, the claimant is appellant.

[00:39:49] Speaker 04:
So Judge Wilkins is correct that ultimately it reduces to whether or not the sentence imposed is substantively reasonable.

[00:39:57] Speaker 04:
Because every time you answer these questions, it comes back to as long as we

[00:40:03] Speaker 04:
believe that Judge Wilkins hit a substantively reasonable number, then the party can't claim prejudice from him not explaining.

[00:40:12] Speaker 04:
That's his question.

[00:40:13] Speaker 00:
I think it's going to be very hard to do, particularly in the case.

[00:40:16] Speaker 00:
And if I could just compare this, perhaps, to the concept of when a defendant brings a claim of plain error at trial and says, OK, I didn't object to this aspect, some evidence that came in.

[00:40:32] Speaker 00:
Or I didn't object to an instruction that was given at trial.

[00:40:37] Speaker 00:
But I think it was erroneous.

[00:40:39] Speaker 00:
I think it affected my try, you know, I think it's an error.

[00:40:43] Speaker 00:
It's plain and obvious here.

[00:40:45] Speaker 00:
he still is going to have to show prejudice.

[00:40:48] Speaker 00:
And if the evidence against him was overwhelming at trial, if the evidence of guilt was overwhelming, that is one major factor that this court would take into consideration in deciding whether substantial prejudice had been shown.

[00:41:02] Speaker 00:
And I think it applies again when the question is, ultimately, is this sentence substantively reasonable?

[00:41:10] Speaker 00:
Did the procedures somehow, was there some procedural error that either affected the substantive reasonableness or made it impossible for this court to determine that.

[00:41:19] Speaker 00:
But if it is very clear on the record that the sentence was substantively reasonable, at least from the point of view, ultimately of the defense in the sense that you don't really have any complaint to say that the sentence should have been a lot lower.

[00:41:33] Speaker 04:
And we submit that he hasn't shown that here.

[00:41:36] Speaker 04:
Isn't there prejudice both in the hamstringing effective appellate review, because we don't have the reasons, and in undermining the appearance of fairness?

[00:41:48] Speaker 04:
When the law says you have to explain at sentencing district court, and the district court doesn't do that, isn't there some prejudicial effect on not only the defendant, but also the process?

[00:42:02] Speaker 00:
So I think, again, the prejudice, Olano is pretty clear.

[00:42:06] Speaker 00:
The third prong, the prejudice has to be against the party.

[00:42:11] Speaker 00:
It's not just prejudice against someone somewhere.

[00:42:15] Speaker 00:
And that's why there's a difference between the third prong and the fourth prong.

[00:42:18] Speaker 00:
The fourth prong, I understand, Your Honor, what one could make the argument that any time a court sort of doesn't

[00:42:24] Speaker 00:
fully carry out statutory commands or make some error of law that it has some effect on the public perception of.

[00:42:33] Speaker 04:
What about the defendant's perception, it doesn't you so your your point is that it does not prejudice criminal defendants when they are sentenced without an explanation.

[00:42:43] Speaker 04:
To them, to them.

[00:42:45] Speaker 00:
I think they have to show substantial prejudice, as Alano says.

[00:42:50] Speaker 00:
And although in the sentencing context, the showing of prejudice isn't as great as in the trial.

[00:42:56] Speaker 00:
But I still think a defendant has to really articulate and convince this court that there was substantial prejudice against his interests.

[00:43:05] Speaker 00:
I don't think Appellant has made that showing in this case.

[00:43:10] Speaker 00:
I realize that I've greatly exceeded my time.

[00:43:13] Speaker 00:
If the court had any questions about appellant's ineffectiveness claim, I would be happy to answer those.

[00:43:21] Speaker 04:
Can I just ask you one question?

[00:43:23] Speaker 04:
Your entire argument with respect to that seems to hinge on whether or not the sentence was delayed.

[00:43:34] Speaker 04:
But it seemed to me that the district court was really concerned about

[00:43:39] Speaker 04:
the plea, that it was the fact that Mr. Harrison pled guilty to the conduct in Superior Court that was really the linchpin.

[00:43:49] Speaker 04:
So hypothetically, if the defendant's argument was there was ineffective assistance of counsel because the counsel in Superior Court did not delay the plea,

[00:44:06] Speaker 04:
which happened after the district court case, would your argument be different?

[00:44:12] Speaker 00:
I, again, I'm not sure how different it would be if only because it's not, given that he pleaded guilty and that it, you know, again, I don't have the record of that case in front of this court here, but given that it doesn't seem that appellant really had a serious claim that he was innocent of the stabbing.

[00:44:34] Speaker 00:
And he admitted to it.

[00:44:37] Speaker 04:
Right, but I, it looked to me from the way the facts developed,

[00:44:42] Speaker 04:
that Judge Leon was aware of that case initially, but didn't pull off the sentencing because it was outstanding.

[00:44:52] Speaker 04:
It was pending.

[00:44:52] Speaker 04:
The defendant had not pled guilty.

[00:44:54] Speaker 04:
So he was going forward.

[00:44:56] Speaker 04:
Is that right?

[00:44:56] Speaker 04:
Wrong?

[00:44:57] Speaker 00:
No, that's not my understanding.

[00:44:59] Speaker 00:
If you look at the May hearing, I think by the time of the May hearing, he'd already pleaded guilty.

[00:45:04] Speaker 04:
Right.

[00:45:04] Speaker 04:
That's my point.

[00:45:06] Speaker 04:
That's my point.

[00:45:06] Speaker 04:
Was it ineffective

[00:45:08] Speaker 04:
for the Superior Court counsel to allow him to plead guilty while there was a pending case in district court where the judge could be concerned about the guilty plea.

[00:45:24] Speaker 00:
So appellant certainly hasn't made that showing here.

[00:45:27] Speaker 00:
I mean, it's been very hard to understand precisely what his claim is.

[00:45:32] Speaker 00:
As far as I can tell following his reply brief, he seems to have pinned down the idea that he was subjected to consecutive sentences.

[00:45:41] Speaker 00:
In other words, that because the district court was allowed to sentence second,

[00:45:45] Speaker 00:
district court ensured that the sentence in this case would be consecutive to the 90 days that he got superior court.

[00:45:52] Speaker 00:
I don't think that and you know before that to the extent it was hard for me to tell from his opening brief if what he was saying is that it somehow increased his criminal history score which didn't because he hadn't you know again it didn't get calculated as part of his criminal history score.

[00:46:08] Speaker 00:
The fact that he did commit the stabbing you know that was

[00:46:12] Speaker 00:
that that happened the moment that he did it.

[00:46:14] Speaker 00:
And the court was going to be aware of that by the government.

[00:46:18] Speaker 04:
Yes, but judges, when they sentence, don't do so in light of pending allegations.

[00:46:23] Speaker 04:
They do so in light of established convictions in other jurisdictions.

[00:46:29] Speaker 00:
And so my question is- I'm not entirely sure that that's always the case.

[00:46:36] Speaker 00:
Certainly, Judge Leigh Ann would not have abused his discretion.

[00:46:39] Speaker 00:
Even if appellant hadn't formally pled guilty, let's say by September.

[00:46:46] Speaker 00:
And instead you had the allegations and the government had come in and said, he stabbed another inmate and appellant essentially just remained silent and said like, well, those are just allegations.

[00:46:57] Speaker 00:
But then the government came in and said, look, here's the evidence, your honor.

[00:47:00] Speaker 00:
Here's what shows that he in fact committed the stabbing.

[00:47:03] Speaker 00:
And if Judge Leon had decided certainly he only really has to do so by a preponderance for purposes of sentencing at most.

[00:47:11] Speaker 00:
But if he'd looked at those allegations said look this looks very serious to me.

[00:47:15] Speaker 00:
You haven't really denied this.

[00:47:17] Speaker 00:
And, you know, I honestly I think the evidence is overwhelming that you did stab another inmate.

[00:47:23] Speaker 00:
I don't think it's an abusive discretion for him to take that into consideration.

[00:47:28] Speaker 00:
But again, Appellant hasn't really identified what it was for, you know, he hasn't, he hasn't even really identified a specific attorney that should have been, you know, that was ineffective here, whether it was district court counsel for allowing sentencing to be delayed, or whether it was superior court counsel for not

[00:47:49] Speaker 00:
delaying further the plea or the sentencing.

[00:47:53] Speaker 00:
I mean, he's focused mostly on the sentencing.

[00:47:56] Speaker 00:
He has not really said that the plea, he has not, as far as I can tell, articulated that on appeal.

[00:48:02] Speaker 00:
Council, I'm sorry.

[00:48:03] Speaker 04:
I've kept you over quite a bit.

[00:48:05] Speaker 04:
I just have one final, Judge Wilkins, with your permission.

[00:48:08] Speaker 04:
One final question, which is there was something in the defendant's brief about knowing involuntary and the extent to which

[00:48:19] Speaker 04:
the plea itself in this case was problematic.

[00:48:24] Speaker 04:
And in looking at the record, it's pretty clear that not all of the rule 11 requirements in terms of the district court qualico was followed.

[00:48:34] Speaker 04:
And I know in previous cases, the DC circuit has admonished the US attorney's office to make sure that they have practices and policies in place to assist the district court.

[00:48:47] Speaker 04:
And I'm just wondering about the status of that.

[00:48:49] Speaker 04:
Is there training on this attorney's office.

[00:48:53] Speaker 00:
What is going on with that, we have endeavored to do so.

[00:48:56] Speaker 00:
It is sometimes a little difficult here.

[00:48:59] Speaker 00:
The judge Leon did address the appeal waiver that which is the only

[00:49:05] Speaker 00:
the only thing at issue in the real in the role of in colloquy and again that's just answer as to whether he can even get this court to review that particular claim and obviously for the reasons we cite in the brief, we don't think it has substantive merit, even if this court were to reach it on plain error review.

[00:49:21] Speaker 04:
appeal waiver itself appeal as to sentence.

[00:49:25] Speaker 00:
not appeal as to conviction right and he did the appeal waiver well no no no it's both it said the appeal waiver as written if you look at the written um he it says he's uh he is giving up his right to appeal his conviction or his sentence or to challenge in the collateral attack except for ineffectiveness grounds written the problem is that the judge

[00:49:48] Speaker 04:
The judge did not break that out, correct?

[00:49:54] Speaker 00:
So the judge specifically addresses and says, look, the only thing you're going to get to appeal is if the sentence here goes above the maximum bylaw.

[00:50:05] Speaker 00:
You are correct, Your Honor, that the judge doesn't address one specific clause of the written plea, the appeal waiver, which says you cannot challenge, you cannot raise a claim that your conduct does not fit within the scope of the statute.

[00:50:21] Speaker 00:
Okay.

[00:50:22] Speaker 00:
It would have certainly have been preferable under this court's case law for the judge to have expressly mentioned that.

[00:50:29] Speaker 00:
As for the training, I can say that for prosecutors, we have certainly tried to ask them to make sure that all aspects of an appeal waiver are mentioned orally at the Rule 11 colloquy.

[00:50:42] Speaker 00:
I think that training is ongoing.

[00:50:43] Speaker 00:
That's my understanding.

[00:50:45] Speaker 00:
And so, you know, but there are going to be cases, unfortunately, where sometimes, perhaps the prosecutor doesn't realize that the judge hasn't mentioned all aspects.

[00:50:55] Speaker 00:
And I think it is difficult for district judges, as other judges of this court have noted, to try to walk the fine line between summarizing an appeal waiver provision in a way that

[00:51:09] Speaker 00:
the lay person can understand, or just reading it verbatim, which may not be very helpful anyway.

[00:51:15] Speaker 00:
And so I think you know that that's still an ongoing process as to figure out sort of how to walk that line.

[00:51:21] Speaker 00:
This court, I think ultimately, even if this court decides that perhaps it doesn't want to enforce the appeal waiver on that point for the reasons we described in our brief, there just isn't any substantive merit to appellant's claim that he didn't commit a 924C offense because a felony punishable under the Controlled Substances Act includes carrying a weapon in connection with a narcotics conspiracy.

[00:51:48] Speaker 00:
If there are no further questions, we would respectfully submit that the judgment of the district court should be affirmed.

[00:51:53] Speaker 00:
Thank you.

[00:51:55] Speaker 03:
All right.

[00:51:55] Speaker 03:
Thank you, Mr. Coleman.

[00:51:57] Speaker 03:
Mr. Ornberg, we'll give you two minutes for rebuttal.

[00:52:01] Speaker 02:
Thank you, Judge Wilkins.

[00:52:03] Speaker 02:
I think Judge Jackson hit the nail on the head when she said in a couple of different ways that Judge Leon did not tell us what he relied upon when sentencing Mr. Harrison in this case.

[00:52:18] Speaker 02:
You know, traditionally in a sentencing in this district and in the district of Maryland where I practice, a district court judge will go through the 18 U.S.

[00:52:26] Speaker 02:
Code 3553A factors, each of the seven factors and explain or describe under each of those seven factors why he's going to impose the sentence that he or she eventually imposes.

[00:52:41] Speaker 02:
That did not happen in this case and that has left us

[00:52:44] Speaker 02:
in a very uncomfortable posture.

[00:52:48] Speaker 02:
I think this court, at least Judge Jackson, has some concerns about the way that the district court conducted itself with respect to sentencing procedures.

[00:52:59] Speaker 02:
We don't know how he arrived at the 110 month

[00:53:02] Speaker 02:
final decision as to a sentence for Mr. Harrison.

[00:53:07] Speaker 02:
There's just speculation that it was halfway between this point and that point.

[00:53:12] Speaker 02:
That's all we have is speculation.

[00:53:14] Speaker 02:
We do not have an enumeration of the factors under 3553A or the specificity as required by 3553C2.

[00:53:23] Speaker 02:
And unless the court has any other questions, I will submit on the briefs.

[00:53:31] Speaker 03:
All right, thank you, Council.

[00:53:33] Speaker 03:
We will take the matter under advisement.