[00:00:00] Speaker 00: Case number 20-3012, United States of America versus Waldemar Lorenzana Lima, also known as Waldemar Lorenzana Lima, appellant. [00:00:09] Speaker 00: Mr. Zucker for the appellant, Ms. [00:00:11] Speaker 00: Rostetler for the appellee. [00:00:14] Speaker 02: Morning, counsel. [00:00:16] Speaker 02: Mr. Zucker, when you're ready, please proceed. [00:00:18] Speaker 03: Thank you very much. [00:00:19] Speaker 03: John Zucker on behalf of the appellant. [00:00:20] Speaker 03: Request five minutes for rebuttal. [00:00:22] Speaker 03: The issue before us is, well, there's essentially two issues. [00:00:26] Speaker 03: The first issue being whether or not [00:00:28] Speaker 03: there was a waiver of a sentencing enhancement during the plea proceeding. [00:00:34] Speaker 03: As the court's well aware, 11b1n requires that the court to advise when there is a sentencing waiver. [00:00:41] Speaker 03: And I will concede at the outset that the written plea agreement complies with all the requirements. [00:00:47] Speaker 03: The issue before us [00:00:49] Speaker 03: And it's the issue that arises, and I guess the lead cases in this jurisdiction are the Brown and the Godoy case, is when the inquiry or the colloquy between the court and the defendant at the time of the plea creates an ambiguity that could cause confusion. [00:01:05] Speaker 03: And we are not, again, challenging that there's an ambiguity about the entry of the plea. [00:01:10] Speaker 03: We are challenging only whether there was an ambiguity and confusion created by the court's colloquy [00:01:16] Speaker 03: in relation to the defendant waiving the sentence enhancement. [00:01:20] Speaker 03: And the court's comments at the time, respectfully, raised that issue. [00:01:27] Speaker 03: The court says if the sentence exceeded the maximum, which would be an illegal sentence, frankly, or if there was an upward departure. [00:01:34] Speaker 03: And at the time in this case, there was [00:01:38] Speaker 03: Although there was an agreement on plea, there was a dispute between the parties about the sentencing guidelines calculations, and particularly the leadership enhancement. [00:01:46] Speaker 03: And the danger here is that the court's colloquy did not apprise the defendant. [00:01:52] Speaker 03: He was waiving his right to challenge that decision from the court. [00:01:58] Speaker 05: Can I interrupt with just one question back about the plea agreement itself? [00:02:02] Speaker 05: And the plea agreement itself. [00:02:03] Speaker 05: Was he ever given a Spanish translation. [00:02:05] Speaker 05: It sounds like from the transcript that it was just explained him orally by his attorneys, but was he ever given a Spanish translation of the plea agreement. [00:02:14] Speaker 03: I don't think so. [00:02:15] Speaker 03: I don't know in all candor. [00:02:17] Speaker 03: I was not at the trial level. [00:02:19] Speaker 03: My recollection from the transcript is the same as yours that it was it was given an interpreter that did the translation, but not a [00:02:27] Speaker 03: not a printed translated copy. [00:02:32] Speaker 03: I know his lawyer was also a native Spanish speaker and I don't know if that matters, but no, I think the answer to your question is no, but I'm not sure. [00:02:39] Speaker 05: Okay, sorry to interrupt, go ahead. [00:02:41] Speaker 03: No problem. [00:02:45] Speaker 03: So anyway, the issue becomes is when the court says, the court never said to the defendant, [00:02:54] Speaker 03: an illegal sentence would only be that which exceeds the statutory maximum of 40 years. [00:02:59] Speaker 03: And as the Brown Court pointed out, we have to analyze these in the context of who is the defendant? [00:03:05] Speaker 03: What is his background? [00:03:06] Speaker 03: What is it reasonable to expect of him? [00:03:08] Speaker 03: And as the Brown Court pointed out, it's not reasonable to expect the defendant to understand the legal argo and understand the nuances of maximum upward departure versus enhancement. [00:03:19] Speaker 03: And that's why this case [00:03:21] Speaker 03: is here. [00:03:22] Speaker 03: And that's why I suggest that there was not a valid waiver during the colloquy. [00:03:26] Speaker 03: There was confusion during the colloquy, and the defendant proceeded, and his substantial rights were prejudiced. [00:03:31] Speaker 03: So if the court agrees with that, we turn to the second issue, is whether or not- Before you do that, can I have another question? [00:03:37] Speaker 05: I have another question on this. [00:03:38] Speaker 05: You're allowed to ask as many as you want. [00:03:41] Speaker 05: I know that Mr. Lorenz-Analema doesn't speak English, and so had a Spanish translator [00:03:50] Speaker 05: throughout the pre-hearing. [00:03:53] Speaker 05: Is there any transcript or recording of what the Spanish translator, the words that the translator was using? [00:04:01] Speaker 03: Not that I'm aware of and I sincerely doubt [00:04:05] Speaker 03: there would be. [00:04:07] Speaker 03: And I think it would also probably be his lawyer, that would probably be a privileged conversation. [00:04:11] Speaker 03: But as far as I know, there's no record of exactly what the Spanish translator nor I'm not sure what. [00:04:16] Speaker 05: Right. [00:04:16] Speaker 05: I'm not I don't know why the translators translation of a public proceeding would be privileged. [00:04:21] Speaker 03: It's a good question. [00:04:22] Speaker 03: If it was if it was a public proceeding, then by all means, we hear about a plea hearing. [00:04:26] Speaker 05: I'm only talking about the plea hearing itself. [00:04:30] Speaker 03: My experience is that [00:04:33] Speaker 03: The trans, well, the court reporter doesn't speak Spanish and isn't recording those conversations. [00:04:38] Speaker 03: So I don't think there could have been, you know, normally what happens is the, there's a staccato presentation where the- Yeah, I know. [00:04:47] Speaker 05: I just didn't know if there's any recording of the translation since that could be relevant sometimes. [00:04:51] Speaker 03: I would say with confidence, no, because those are traditionally not done, so no. [00:04:58] Speaker 03: And I would assume that the translator and or the lawyer went through the plea agreement [00:05:03] Speaker 03: prior to the courtroom. [00:05:05] Speaker 03: I mean, that's certainly standard practices for a lawyer to review it. [00:05:08] Speaker 03: And I don't know, you know, if it was done with an interpreter or not, knowing the lawyer, knowing as a native Spanish speaker, I would assume he would have reviewed it in person beforehand. [00:05:18] Speaker 03: I mean, that's what we do with all our clients. [00:05:22] Speaker 01: Had you made any claim, Mr. Zucker, on behalf of your client, but for this so-called ambiguity, [00:05:30] Speaker 01: and the meaning of it, that he would not have pled guilty. [00:05:35] Speaker 03: No, I don't think the issue is whether or not he would have pled guilty. [00:05:38] Speaker 03: I think the issue is whether he would have waived the sentencing enhancement appeal. [00:05:43] Speaker 03: That's, I think, what the issue is. [00:05:44] Speaker 03: We're not seeking to withdraw the plea here. [00:05:47] Speaker 03: And we're not complaining that there was a constitutional defect or any other defect in the plea itself. [00:05:54] Speaker 03: Our error that we're alleging is that the waiver of the sentencing [00:05:59] Speaker 01: um challenges was not appropriately done so just so i understand under the plea agreement there were only two circumstances in which an appeal would be allowed of the sentence right one is if it if there was an upward departure from the guideline range and and two if it if the sentence exceeded the statutory maximum [00:06:27] Speaker 03: Yes, your interpretation of the of the written plea agreement is correct. [00:06:32] Speaker 01: OK, and neither neither neither one of those circumstances is materialized. [00:06:40] Speaker 01: Is that correct, too? [00:06:41] Speaker 01: Yes. [00:06:42] Speaker 01: And I agree. [00:06:43] Speaker 01: And yet he question that he says he I mean, your your position then is nevertheless, he still can appeal. [00:06:50] Speaker 03: Yes, he can appeal because there was an ambiguity in the colloquy with the court during the plea hearing. [00:06:55] Speaker 03: It's the exact situation as in Brown, as in N'Gadoy, where during the colloquy, with all due respect to the trial court, confusion was created about the waiver of the sentencing enhancement. [00:07:08] Speaker 03: Can I ask about that, about the colloquy? [00:07:11] Speaker 01: Mr. Zucker, is it this statement that, so if it was unlawful or involuntary, [00:07:18] Speaker 01: or some other fundamental defect of a constitutional nature, you can appeal that? [00:07:23] Speaker 01: Is that the ambiguity? [00:07:24] Speaker 01: Is that the sentence? [00:07:26] Speaker 03: Well, I think it's several of them. [00:07:27] Speaker 03: It's that. [00:07:27] Speaker 03: It's also the lines about what you could appeal if the sentence exceeded the maximum without defining that the maximum is the statutory maximum rather than the guidelines. [00:07:35] Speaker 01: But a few pages earlier, he did say the statutory maximum, didn't he? [00:07:42] Speaker 03: I believe that's correct. [00:07:44] Speaker 03: But then the ambiguity is created in terms of the last part of it where he says, okay, but you can appeal. [00:07:50] Speaker 01: Well, let me just ask you about the sentence that I read to you. [00:07:53] Speaker 01: So if it was on, I'm sorry, I don't have that part of the transcript, which, which one are you relying on? [00:08:00] Speaker 01: It's in the supplemental appendix of page one or two to one or three, one or three. [00:08:05] Speaker 02: It's you rely on it. [00:08:08] Speaker 01: Yeah. [00:08:08] Speaker 02: It's at the top of 103. [00:08:10] Speaker 03: Forgive me. [00:08:11] Speaker 03: I don't have it printed out. [00:08:12] Speaker 03: If you could read it. [00:08:13] Speaker 01: All right. [00:08:13] Speaker 01: Well, I'll read it to you again. [00:08:14] Speaker 01: So if it was unlawful or involuntary or some other fundamental defect, you can appeal that. [00:08:22] Speaker 01: How can a sentence be involuntary? [00:08:25] Speaker 01: How could anybody possibly understand that line? [00:08:30] Speaker 01: Can you think of a voluntary sentence? [00:08:33] Speaker 03: That's really not the part I'm focusing on that created the confusion, Judge. [00:08:36] Speaker 03: I would direct the court, it's on page 79 of the appendix, where it says, but you can appeal if the sentence exceeded the maximum, which would be an illegal sentence, frankly, or if there was an upward departure that the court imposed. [00:08:49] Speaker 02: But I thought you were making two different arguments in your briefing, at least. [00:08:52] Speaker 02: One was that you get some ambiguity out of the maximum part, which is what you've been focusing on this morning. [00:08:57] Speaker 02: But then another one was that you get some ambiguity out of the sentence that Judge Randolph just read to you. [00:09:03] Speaker 02: I thought you were making two different ambiguity arguments. [00:09:06] Speaker 02: And if we just put to one side for the moment, the maximum argument, I know you don't agree with me, but let's just assume for this purpose, that maximum means statutory maximum. [00:09:16] Speaker 02: And we just focus on the other source of ambiguity that you identified in your briefing, which is the sentence that Judge Randolph identified. [00:09:23] Speaker 02: And on that, do you have a response to the question about the use of the word involuntary? [00:09:33] Speaker 03: I guess I have a response to saying he certainly wasn't voluntarily conceding to the enhancement because that was being contested throughout. [00:09:42] Speaker 02: Now- I guess the question is this. [00:09:45] Speaker 02: So the sentence, just to refresh your memory, is so if it was unlawful or involuntary as some other fundamental defect of a constitutional nature, you can appeal that. [00:09:52] Speaker 02: And it seemed like both you and the government are rightly focused on that sentence. [00:09:55] Speaker 02: And it seems like there's common ground on the following, that if [00:09:59] Speaker 02: If the word it was replaced by plea, that would be one thing. [00:10:04] Speaker 02: If the word it was replaced by sentence, that would be another thing. [00:10:07] Speaker 02: If it was sentence, then it would favor you. [00:10:09] Speaker 02: If it was plea, it would favor the government. [00:10:12] Speaker 02: And the question would be, if it's sentence, [00:10:15] Speaker 02: it also uses involuntary in the same sentence. [00:10:18] Speaker 02: So why, why is not the inference from that, that one would understand her to have been referring to the plea rather than to the sentence. [00:10:27] Speaker 02: You may well have an answer to that. [00:10:28] Speaker 03: I mean, I'm just curious about the plea, but I think what I would focus on, I'm sorry, what did you say? [00:10:32] Speaker 02: I didn't, I didn't hear it. [00:10:33] Speaker 03: I'm not sure which the court was referring to on the, so that could be, that's really part of the confusion and ambiguity. [00:10:39] Speaker 03: But the, the other portion of this was, [00:10:44] Speaker 03: the confusion between upward departure and enhancement and the unlawfulness. [00:10:48] Speaker 03: It would be unlawful to enhance a sentence, I'm sorry, yeah, to apply the leadership enhancement absent a factual predicate for it. [00:10:56] Speaker 03: And I think that's where part of the ambiguity lies here or the central part. [00:11:01] Speaker 02: We also have a due process argument, right? [00:11:03] Speaker 02: I thought part of your argument was that there's a due process problem with relying on the proffer statements when [00:11:10] Speaker 02: that your client was not, when the defendant was not allowed access to the proffer statements? [00:11:16] Speaker 03: Yes. [00:11:17] Speaker 03: I mean, certainly that was the, that is the due process. [00:11:19] Speaker 03: And those proffer statements were incorporated into, I mean, the government claims that it was a trial transcript, but much of what they're relying on doesn't occur in the trial transcript. [00:11:28] Speaker 03: And we've gone through the facts on that, but the proffer statements were incorporated into the pretrial services report. [00:11:36] Speaker 03: I mean, that's where they get their facts from. [00:11:38] Speaker 03: is what the government disclosed in their interpretations or their summaries of the proffer statements. [00:11:48] Speaker 03: So that's a due process argument. [00:11:50] Speaker 03: Judge Randolph, did I answer your question? [00:11:53] Speaker 03: I'm not sure I responded. [00:11:55] Speaker 01: Yes or no. [00:11:56] Speaker 01: I think that you answered the question, but I don't know if you did it satisfactorily. [00:12:04] Speaker 01: So, but, you know, one of the other things that strikes me is that the plea agreement itself said the manner in which the judge imposes the sentence cannot be challenged on appeal. [00:12:18] Speaker 03: Well, but the question is, when the plea colloquy injects confusion into it, [00:12:28] Speaker 03: uh what what is controlling and i and i and i look at the i think it's a good oil case it says look if we could look at a plea colloquy to interpret and rectify an omission in the plea agreement that we have to look at the plea colloquy to see if that infects um confusion or or misunderstanding and i i suggest that's what occurred here you know what especially if i just complete especially when we're talking about [00:12:56] Speaker 03: somebody with this background, second grade education, another country, not familiar with the nuances of our law, let alone sentencing guidelines, and the distinction between an upward departure versus an enhancement. [00:13:09] Speaker 01: Yeah, your argument reminds me of something that philosopher Karl Popper used to talk about. [00:13:15] Speaker 01: And one of his principles was that if you have to define your terms before you can speak, [00:13:22] Speaker 01: Nobody could speak because more definition doesn't lead to greater clarity. [00:13:29] Speaker 01: It leads to infinite regression. [00:13:31] Speaker 01: And if every time the word it is used in a plea colloquy, the judge has to define it, it's going to lead to infinite regression because when you define something, you use words. [00:13:43] Speaker 01: And when you use words, you have to define those words. [00:13:47] Speaker 03: All right. [00:13:48] Speaker 03: I'm not going to quarrel with you. [00:13:51] Speaker 03: I think with all due respect to the trial court, it created confusion rather than clarity. [00:13:59] Speaker 03: And I think how they summarize it to say, Haji said, okay, the maximum I'm talking about here is the staff story maximum, not the guidelines, for instance, or Haji clarified [00:14:11] Speaker 03: upward departure versus enhancement for somebody in his, in, in my client's position, those are confusing terms. [00:14:18] Speaker 03: And we couldn't, it's unfair to expect him to understand the nuances and differences between them based on the colloquy that was getting his lawyers said that he did understand them as a lawyer was the lawyer under oath. [00:14:32] Speaker 03: Well, I mean, the lawyer could give his understanding. [00:14:37] Speaker 03: I don't, [00:14:39] Speaker 03: And the lawyer, I think, could only comment on what occurred in terms of interpreting the plea agreement. [00:14:44] Speaker 03: But it was when the court tried to clarify or tried to summarize, I guess, during the plea colloquy that I think the confusion was created. [00:14:53] Speaker 03: Because you said, you can appeal these issues. [00:14:56] Speaker 03: And these issues, if there's a constitutional defect or there's an upward departure. [00:15:00] Speaker 03: And so this person, to expect him to understand the nuanced difference between an upward departure and an enhancement, [00:15:08] Speaker 03: is unrealistic. [00:15:11] Speaker 05: Can I ask you on your second issue? [00:15:14] Speaker 05: I just want to make clear something. [00:15:15] Speaker 05: Are you raising a Jencks Act argument? [00:15:18] Speaker 05: You talk about that they didn't give you information about the folks whose testimony was being used. [00:15:28] Speaker 05: But I wasn't clear from your brief if you were still pursuing the Jencks Act argument. [00:15:33] Speaker 03: You definitely have to focus on the property. [00:15:36] Speaker 03: I don't think we presented it as that because I don't think Jenks would have applied. [00:15:39] Speaker 03: I don't know, but I assume trial counsel was given the Jenks of the witnesses that did testify. [00:15:48] Speaker 03: I think there were other witnesses that related to the proffer that weren't called, and I think that was the basis. [00:15:55] Speaker 03: Actually, I'm wrong on that. [00:15:56] Speaker 03: Can I have a quick moment to consult? [00:16:03] Speaker 03: But was there additional Jenks that wasn't disclosed? [00:16:06] Speaker 03: Apparently, I misspoke. [00:16:12] Speaker 03: There was a Jenks request that was not complied with. [00:16:15] Speaker 03: But I think it related to aspects of the witnesses' cooperation that weren't relevant, particularly to sentencing. [00:16:27] Speaker 02: Is that correct? [00:16:28] Speaker 02: You can also clarify it on rebuttal if you'd like. [00:16:30] Speaker 02: OK. [00:16:32] Speaker 02: That's a better idea. [00:16:35] Speaker 02: I thought that the principle argument you're making, I didn't see you make an exact argument actually in your briefing. [00:16:39] Speaker 02: I know you noted it. [00:16:40] Speaker 02: I didn't. [00:16:43] Speaker 02: I didn't. [00:16:44] Speaker 02: I'm just responding to Judge Miller's question. [00:16:46] Speaker 02: Sure. [00:16:46] Speaker 02: Sure. [00:16:46] Speaker 02: No, absolutely. [00:16:47] Speaker 02: Yeah. [00:16:47] Speaker 05: I'm just trying to clarify. [00:16:48] Speaker 05: Okay. [00:16:49] Speaker 02: Yeah. [00:16:49] Speaker 02: And appropriately. [00:16:49] Speaker 02: No, no. [00:16:50] Speaker 03: Our contention was that there was a due process violation because the proffer statements weren't disclosed in advance. [00:16:57] Speaker 03: And there was a factual, there was just an interpretation [00:17:02] Speaker 03: Let me try and phrase that better. [00:17:03] Speaker 03: The leadership enhancement should not apply based on the facts that were presented because Laurenzina Lima didn't have control over anybody. [00:17:11] Speaker 03: He had control only over the property. [00:17:15] Speaker 03: He didn't negotiate anything. [00:17:16] Speaker 03: He couldn't fire anybody. [00:17:17] Speaker 03: He didn't set any prices. [00:17:18] Speaker 03: He didn't do anything except to say, yes, you can use my property. [00:17:23] Speaker 03: And he consented to that. [00:17:25] Speaker 03: And he wasn't even involved in the negotiations. [00:17:27] Speaker 03: His kids took care of all that. [00:17:29] Speaker 02: Got it. [00:17:30] Speaker 02: Okay. [00:17:30] Speaker 02: Let me just make sure my colleagues don't have further questions for you at this point. [00:17:33] Speaker 02: We'll give you a little time for rebuttal. [00:17:34] Speaker 02: Thank you. [00:17:36] Speaker 02: Okay, thank you. [00:17:37] Speaker 02: Miss Hostetler, we'll hear from you now. [00:17:39] Speaker 04: Your honor, may it please the court. [00:17:41] Speaker 04: I'm Kelly Brooke Hostetler and I represent the United States. [00:17:44] Speaker 04: Lorenzano Lima waived his right to challenge to bring these claims when he pleaded guilty. [00:17:48] Speaker 04: He acknowledges that this is covered by the written plea agreement and nothing in the plea colloquy causes conflicts with that written plea agreement. [00:17:55] Speaker 04: As he went into the start of the plea colloquy, the district court asked him to let him know if anything that he said contradicted what he understood from his attorneys prior to the start of the plea colloquy. [00:18:09] Speaker 04: When he signed the plea agreement, he said that he understood it. [00:18:13] Speaker 04: his attorneys attested that they had fully explained all of the consequences of it. [00:18:18] Speaker 04: And the statements that the district court made were not ambiguous. [00:18:22] Speaker 02: And to the extent there was- Can I ask you about that? [00:18:23] Speaker 02: Just because I think it's at least common ground, I think, between you and the defendant's counsel that even if the plea agreement was totally clear, that things can happen in the course of the colloquy that [00:18:38] Speaker 02: injects sufficient ambiguity into the dynamics such that the individual is not bound by the plea waiver anymore, right? [00:18:45] Speaker 02: I mean, that's common ground under our decisions. [00:18:47] Speaker 02: So then the question becomes, what exactly happened during the colloquy? [00:18:50] Speaker 02: And on pages supplemental expenditure 102 to 103, the ones we were speaking to Mr. Zucker about earlier, the district court starts out by saying there's two kinds of appeals. [00:19:02] Speaker 02: There's an appeal based on the statute, and you're giving up those rights. [00:19:05] Speaker 02: And I'll go over those in a moment. [00:19:07] Speaker 02: And then it seems like she switches to the second kind of appeal, because she laid out there's going to be two kind of appeals. [00:19:12] Speaker 02: The second kind of appeal is your right to appeal any constitutional defects you're not giving up. [00:19:17] Speaker 02: And so why isn't the right way to understand that, or at least a reasonable way to understand that, that there's statutory defects you could be appealing about, and then there's constitutional defects you could be appealing about. [00:19:31] Speaker 02: And then the constitutional defects, you're not giving those up. [00:19:33] Speaker 02: The statutory ones, you did give those up. [00:19:36] Speaker 02: And he is making a constitutionally grounded sentencing appeal here in that he's saying that there's a due process problem with relying on proffer statements that were never given to me. [00:19:49] Speaker 04: Almost immediately after that sentence from the district court, she goes on to explain the statutory sentencing right that he's giving up. [00:19:57] Speaker 04: But as part of that, where she says he's giving up his right to appeal his sentence, she also says, [00:20:02] Speaker 04: you're giving up the right to include any challenges to the constitutionality of the sentencing guidelines. [00:20:07] Speaker 02: So it can't have been that the first was just all about constitutional challenges and the second was just about- Well, but there's a difference between the constitutionality of sentencing guidelines and a constitutional claim relating to the sentence, to the administration of the sentence, right? [00:20:19] Speaker 02: And so even if that's true, even if subsequent statements, it would be one thing if a judge said, [00:20:27] Speaker 02: And I'm not saying that any judge could be expected to do this on the fly. [00:20:30] Speaker 02: I think this is a really difficult thing to do. [00:20:32] Speaker 02: I don't mean to slight what a district judge faces here, but [00:20:35] Speaker 02: It'd be one thing if a judge said, let me just scratch what I just said. [00:20:39] Speaker 02: Let me start over. [00:20:40] Speaker 02: Here's a clarified understanding. [00:20:42] Speaker 02: And it would be another thing to go on and elaborate in a way that doesn't necessarily, in the defendant's eyes, clarify what had been said before. [00:20:49] Speaker 02: And so even if later on there's a reference to constitutional challenges to the sentencing guideline, that wouldn't necessarily ameliorate an indication from prior comments that you can raise constitutional defects. [00:21:02] Speaker 02: Or would it? [00:21:04] Speaker 04: I think looking at everything in context, I mean, starting with where the defendant would have been when he came into the plea colloquy, which is understanding that he can't appeal his sentence as long as it's not about the statutory maximum or is an upward departure, has been told that if he hears anything that conflicts with this, he should let the district court know. [00:21:23] Speaker 04: And then he hears, you know, if there's any concern or question at that point in time about, oh, maybe I could bring a constitutional challenge to my sentence, she goes on to, to, [00:21:34] Speaker 04: to clarify that saying, no, no, no, this is not just A, constitutional challenges and B, statutory challenges. [00:21:40] Speaker 04: We're really talking about appealing the conviction versus appealing the sentence with her later clarification, which comes almost immediately after. [00:21:48] Speaker 02: And if you have any- Can I just ask this question and then I'll stop this line of questioning, which is if the colloquy stopped after [00:21:57] Speaker 02: your right to appeal any constitutional defects, you're not giving up, you're not waiving that. [00:22:01] Speaker 02: So if it was unlawful or involuntary or some other fundamental defect of a constitutional nature, you can appeal that. [00:22:07] Speaker 02: And if it just stopped there, then at that point, you would agree that there was ambiguity. [00:22:12] Speaker 02: But then what you're relying, is that right or am I wrong? [00:22:15] Speaker 02: And what you're relying on is subsequent statements that clarified what she was saying. [00:22:21] Speaker 04: I think the subsequent statements are really helpful and really important. [00:22:25] Speaker 04: But if we are presented just with that, I'm not entirely sure that would be ambiguous either for the reasons Judge Randolph said, because of this phrase of involuntary, which makes it seem like we really are talking about the plea there and not the sentence. [00:22:38] Speaker 04: But here, we don't have to parse that, because we do have the immediately thereafter clarifying statements. [00:22:45] Speaker 04: And the same thing with the second statement. [00:22:47] Speaker 05: Can I follow up on that, just to follow up? [00:22:51] Speaker 05: that that sentence that you were just now referencing the unlawful involuntary is preceded by you're giving up all your rights to appeal. [00:23:00] Speaker 05: And I assume that language includes both challenging the plea and the sentence. [00:23:06] Speaker 04: Yes. [00:23:07] Speaker 05: All your rights. [00:23:08] Speaker 05: And then she says there's two kinds for all your rights. [00:23:11] Speaker 05: There's statutory and constitutional. [00:23:14] Speaker 05: She hasn't narrowed it yet from all your rights. [00:23:16] Speaker 05: So the constitutional defects must refer back to including [00:23:21] Speaker 05: constitutional defects in the sentencing. [00:23:24] Speaker 05: And that's when she says, you're not giving up or waiving those. [00:23:29] Speaker 05: And then we have this, so if it was unlawful. [00:23:32] Speaker 05: And I had asked, is it your understanding, too, that there's no recording of the translation that's done by the Spanish translator? [00:23:42] Speaker 04: That's my understanding as well, but I am not positive. [00:23:45] Speaker 05: Well, it's just because we all talk about it. [00:23:47] Speaker 05: But in Spanish, there's different words for it. [00:23:51] Speaker 05: depending on the noun that that pronoun is referring to. [00:23:57] Speaker 05: And it could very well, at least on some translations, it's different whether it's talking about an agreement or a sentence. [00:24:10] Speaker 05: So I think it's a little hard to rely on the singular English meaning of this, it. [00:24:16] Speaker 05: that we are thinking about, we have to understand that in Spain, we have to look at this from the perspective of the defendant with a second grade education, that there's not a single it in Spanish. [00:24:28] Speaker 05: And if all the language up to that sentence was about waiving all appeal rights except constitutional defects, which were both plea and sentence, and then you have one word that seems to describe a sentence and one that could describe the plea, I don't understand the argument [00:24:46] Speaker 05: that we suddenly know because of it, that everything in that sentence was only talking about the plea when nothing before it was narrowed down to just the plea. [00:24:56] Speaker 04: Well, again, I do think you can look at what comes after it, where the court makes clear that you just can't bring any constitution. [00:25:02] Speaker 05: Well, what comes after that is, do you understand, you're willing to give up these rights? [00:25:06] Speaker 05: And he says, I didn't understand that on 104. [00:25:09] Speaker 05: And then she gives a super high level, just understand you're giving up these statutory rights. [00:25:14] Speaker 05: And she says, I agree with that. [00:25:16] Speaker 05: So you gotta, if we're gonna look at the whole transcript, which I agree we should, we gotta look at the before and the after. [00:25:24] Speaker 05: And then this is, I think we have to look all the way to when his lawyers say, look, this has been very difficult. [00:25:30] Speaker 05: He said he just wants to play and he'll sign anything we put in front of them. [00:25:34] Speaker 05: I mean, there's a lot, this is one of the most extraordinary plea transcripts I have ever read. [00:25:39] Speaker 05: It's deeply troubling, honestly, so the efforts to just find some magic formulation of words that he would agree to. [00:25:48] Speaker 05: And I don't think these other clarifications you're talking about, they're not right next to it. [00:25:54] Speaker 05: They come pages later. [00:25:56] Speaker 05: So what are we to do with that? [00:25:59] Speaker 04: Well, first of all, the difficulty in getting him to agree was on the articulation of the facts. [00:26:04] Speaker 04: That was what the real sticking point was. [00:26:06] Speaker 04: It was not on the waiver of the rights. [00:26:08] Speaker 05: But it was in that context that the attorney said, look, this guy wants to plead, and he'll sign anything we put in front of him and was never even given his own Spanish translation of the plea agreement. [00:26:19] Speaker 05: And so I think that was not limited to the facts. [00:26:24] Speaker 05: They were talking about his state of mind and how he was approaching this whole process. [00:26:29] Speaker 04: Yes, although I don't read from the transcript any reservation on his part in terms of the rights he was waving but only in terms of what responsibility he would have and what whether he would be exposed to the leadership enhancement and whether he would have responsibility or whether the responsibility would be attributed to his sons. [00:26:47] Speaker 04: And I would also point out, I mean, we, there is that immediate clarification on page 103 of the government's appendix, but also later on, there is that discussion of the statutory maximums at page 147 [00:27:00] Speaker 04: 49 where the district court clearly defines what any legal sentence would be and makes clear that it's referring to a statutory maximum. [00:27:07] Speaker 05: I would also point out that I'm not to provide. [00:27:09] Speaker 05: Oh, I'm sorry. [00:27:10] Speaker 05: You want to finish your point. [00:27:11] Speaker 05: Go ahead. [00:27:12] Speaker 04: I just want to say I would also point out that in the middle of the play college where he did have almost 30 minutes with his attorneys in private. [00:27:18] Speaker 04: So if there were issues about the rights he was waiving at that point in time, it would have been an opportunity for him to [00:27:23] Speaker 05: discuss any confusion that he had and to clarify with his attorneys at that point in time, if there had been things that were- Well, there was a lot of water under the bridge by that point, and it seemed like the attorneys were just trying to figure out some formulation of words that he would be able to say yes to. [00:27:35] Speaker 05: Is it normal not to give a Spanish translation to a Spanish speaker of the plea agreement itself? [00:27:41] Speaker 04: I don't know why that wasn't provided in this case. [00:27:43] Speaker 05: It's normal, right? [00:27:45] Speaker 05: Isn't that the normal? [00:27:45] Speaker 05: I thought, you see many more of these than I do, so I won't, I'm just, in my experience, it's generally been, we've been informed that they've been given a Spanish translation, so I was confused here. [00:27:56] Speaker 04: I don't know, I don't know why there wasn't one given. [00:27:59] Speaker 05: But that is more, the more ordinary practice is to do so. [00:28:02] Speaker 04: I don't know, Your Honor, what the normal practice is. [00:28:05] Speaker 05: Oh, you don't know? [00:28:06] Speaker 04: I don't know. [00:28:07] Speaker 05: Oh, okay. [00:28:09] Speaker 05: All right. [00:28:11] Speaker ?: Okay. [00:28:11] Speaker 02: Can I take you past the waiver, then, just for arguments? [00:28:15] Speaker 02: I know your argument is that we shouldn't get to the merits at all. [00:28:18] Speaker 02: But if we get to the merits, unless my colleagues have further questions on the waiver, I just want to go to the merits for a second. [00:28:25] Speaker 02: So on the merits, on the part of the argument that's made by the defendant to the effect that both the government and the district court relied on Linares Cordon's indication that [00:28:42] Speaker 02: Lorenzana Lima was the leader and was largely deferred to. [00:28:47] Speaker 02: And as I read your brief, your argument on that is harmless error, because it doesn't sound like you really take issue with the notion that there wasn't trial testimony that supported that proposition. [00:28:57] Speaker 02: It would have had to have come from the proffer statements if it came at all. [00:29:01] Speaker 02: And so you're not disputing for our purposes the notion that that part of it came from the proffer statement. [00:29:06] Speaker 02: The only question is whether, even if that was erroneously injected into the equation, that it was harmless. [00:29:12] Speaker 04: Your honor, I'm not even sure that that comes from the proffer statements. [00:29:14] Speaker 04: It's not clear from the summary proffers. [00:29:17] Speaker 04: It just seems like it was a conclusory statement that got in there and then got repeated. [00:29:21] Speaker 02: Right, exactly. [00:29:22] Speaker 02: And it was injected by the government, to be fair, initially. [00:29:25] Speaker 02: And then the district court picked up on it. [00:29:27] Speaker 02: And so then the question becomes, is that harmless? [00:29:29] Speaker 02: As you rightly, I think, surmise in your brief, that's where we should point to on that. [00:29:34] Speaker 02: And on that, the district court did say in its opinion [00:29:41] Speaker 02: It did rely on it in its opinion in imposing the leadership enhancement. [00:29:46] Speaker 02: It did say at 324 of the appendix, the government asserts that both Herrera Garcia and Linares Cordon acknowledged Mr. Lorenzana Lima as leader of the DTO. [00:29:57] Speaker 02: So that seems to be a reference to it. [00:29:59] Speaker 02: Then on [00:30:00] Speaker 02: 327, there's a statement. [00:30:05] Speaker 02: He, being the defendant, was seen by his co-conspirators as the leader and point person in control. [00:30:10] Speaker 02: And I don't think we're talking about the sons there. [00:30:11] Speaker 02: I think we're talking about Herrera and Linares because the sons are referred to separately. [00:30:15] Speaker 02: And then in concluding, there's the statement on 329, both Herrera Garcia and Linares Cordon deferred to him, as did his sons. [00:30:24] Speaker 02: And so there was at least some reliance on the notion that [00:30:28] Speaker 02: Linares-Cordon had identified Lorenzana Lima as the leader, i.e. [00:30:33] Speaker 02: somebody to be deferred to, that seems to have made its way into the decision in a few places. [00:30:40] Speaker 02: And the question becomes, if that's true, then how is it harmless beyond a reasonable doubt, assuming that that's the right standard? [00:30:48] Speaker 04: Yes. [00:30:49] Speaker 04: I think the evidence is overwhelming that the district court points to you based on just Herrera Garcia's testimony alone, which she carefully documents in the written order. [00:30:59] Speaker 04: Also, again, in her sentencing colloquy, at sentencing, she goes through her reasoning again. [00:31:05] Speaker 04: And there, she specifically says she went back and checked the transcripts, and they are correct. [00:31:11] Speaker 04: And there's no reference to Linares Cordon and his deference at sentencing. [00:31:17] Speaker 04: just looking at the evidence based on Herrera Garcia fully demonstrates that Lorenzo Annalimo was a leader or organizer. [00:31:28] Speaker 02: Even if she, that may be true as a matter, that could, in other words, I mean, if it was a sufficiency challenge, then you could say that, yeah, the evidence was definitely sufficient. [00:31:36] Speaker 02: But in terms of the way she characterized her finding that the leadership enhancement was met, [00:31:44] Speaker 02: There's multiple places in her written rendition of it that reference the exact thing that we have to assume for our purposes came from the proffer. [00:31:53] Speaker 04: Yes, but but she cites to the train. [00:31:56] Speaker 04: She doesn't cite to the transcripts there again. [00:31:58] Speaker 04: Those are also very perfunctory and conclusory statements. [00:32:02] Speaker 04: Whereas where she's relying on the evidence, it's all said it to Herrera Garcia, except for one small reference to Linares-Cordon in terms of the scope of the conspiracy for which she was an appropriate witness. [00:32:15] Speaker 04: And when you look at what she says at sentencing, there is no mention of Linares-Cordon, and she sets out the evidence there as well, clarifying her, if there was any question, clarifying what her decision-making was. [00:32:29] Speaker 05: Yeah. [00:32:29] Speaker 05: That sort of struck me. [00:32:30] Speaker 05: I'm sorry, you? [00:32:31] Speaker 00: No, go ahead. [00:32:33] Speaker 05: It struck me that the language, you say the evidence was abundant from Herrera Garcia, who was a cooperating co-conspirator. [00:32:43] Speaker 05: But all the language seemed to be in terms of he had concerns, he suggested, he advised. [00:32:52] Speaker 05: That's not language at least I'm used to seeing in these types of enhancements. [00:32:58] Speaker 05: If I'm meeting with my law clerks on how to deal with a case and they [00:33:04] Speaker 05: make suggestions to me and have concerns that are expressed about a certain course of actions and provide me with some advice. [00:33:13] Speaker 05: And I follow that. [00:33:15] Speaker 05: Are they leaders in this chamber? [00:33:18] Speaker 04: No, Your Honor, but very oftentimes senior members. [00:33:22] Speaker 05: If I go to a case conference afterwards after an argument and my colleagues have concerns and advice and suggestions, [00:33:33] Speaker 05: that I find persuasive and decide to go along with. [00:33:37] Speaker 05: That doesn't make them leaders of me, it makes them peers, right? [00:33:41] Speaker 05: Correct. [00:33:42] Speaker 05: The language here seems to be one of, at best maybe a peer or someone who, it's his property, they're gonna hear him out and every now and then he says some things. [00:33:54] Speaker 05: But Herrera Garcia, who was like the point person for the Sinaloa cartel in Guatemala, he was a huge player in this conspiracy. [00:34:02] Speaker 05: He was a big leg. [00:34:04] Speaker 05: And the notion that he was taking orders from this farmer just because he had concerns or advice about avoiding local police, it just strikes me as, [00:34:19] Speaker 05: very odd way to think about things. [00:34:22] Speaker 05: The evidence, I'm curious how you wrapped your head around that concept of leadership rather than how can we tell that he wasn't simply just, probably peer is probably too much of a word, but simply another person that he would listen to now and then. [00:34:37] Speaker 04: A couple of things, Your Honor. [00:34:39] Speaker 04: First, senior personnel in an organization often speak in software language. [00:34:45] Speaker 04: They don't necessarily say, I am ordering you to do something. [00:34:47] Speaker 04: They sometimes speak in more polite language. [00:34:50] Speaker 04: even though everyone understands that it is a direction. [00:34:53] Speaker 05: It's not the godfather here. [00:34:54] Speaker 05: I mean, you really think that Herrera Garcia, with his position in this conspiracy, was being ordered around when Mr. Lorenzana Lima said, I'm concerned about these really large trucks coming into this small town. [00:35:14] Speaker 05: Maybe we should [00:35:15] Speaker 05: Try another location that was an order rare Garcia interpreted that as an order, did he say anywhere that he interpreted that as an order. [00:35:24] Speaker 04: He didn't say that specifically, but I would give an example with respect to his efforts to expand production, the transport from El Salvador that before he he finalized any agreements in El Salvador. [00:35:37] Speaker 04: He spoke with Lawrence on a Lima to make sure that it was okay so I think it was okay as in like permission or something to get his advice to make sure this is workable because he's the guy on the ground to get his okay because the operations couldn't start, they couldn't expand until Lawrence on a Lima gave his okay. [00:35:57] Speaker 05: Sorry, the evidence leads in the record was we're talking about sort of picking the start date or something. [00:36:03] Speaker 05: The evidence was quite ambiguous whether that was simply when it would first start versus every single time. [00:36:08] Speaker 05: I would have thought, this is a massive conspiracy. [00:36:10] Speaker 05: And if this guy was a leader, I certainly would have thought there'd be more evidence in the record of him somewhere ordering someone subordinate to him. [00:36:20] Speaker 05: And I guess you wouldn't say Herrera Garcia was subordinate to him, would you? [00:36:24] Speaker 04: I would say with respect to Lorenzana Lima's property that Herrera Garcia was subordinate in terms of how they were using it. [00:36:30] Speaker 04: And I would also point to the specific instance in which Lorenzana Lima instructed, according to Herrera Garcia, instructed that the warehouse be renovated. [00:36:39] Speaker 05: So there were people- Did he instruct Herrera Garcia? [00:36:42] Speaker 05: Or it was Herrera Garcia who wanted it renovated, right? [00:36:46] Speaker 05: Correct. [00:36:46] Speaker 04: And Lorenzana Lima instructed personnel, so he was a leader organizer, even if it's [00:36:51] Speaker 04: doesn't believe that Lauren's only supervise the construction. [00:36:55] Speaker 04: He ordered his personnel to renovate the warehouse, which is he only has to have control over one person under the guidelines and guidelines to be eligible for for those for those. [00:37:07] Speaker 05: Okay. [00:37:09] Speaker 05: Thank you. [00:37:12] Speaker 02: Thank you. [00:37:12] Speaker 02: If my colleagues don't have any further questions, we'll hear from Mr. Zucker for his rebuttal. [00:37:19] Speaker 02: Thank you, Ms. [00:37:20] Speaker 02: Hassettler. [00:37:21] Speaker 02: Thank you very much. [00:37:22] Speaker 02: Mr. Zucker, we'll give you two minutes for your rebuttal. [00:37:24] Speaker 03: Appreciate it. [00:37:25] Speaker 03: To respond to your question regarding the Jenks, the Jenks was not provided, it was requested, but the reason the court gave was because the witnesses weren't testifying themselves, therefore Jenks didn't apply, which is, so anyway, I hadn't been spoken earlier. [00:37:38] Speaker 03: I'd also like to note that Judge Miller, you talked about, I think it was you that talked about there was the point where [00:37:48] Speaker 03: The defendant said, I don't understand that part of the waiver, or I don't understand. [00:37:52] Speaker 03: And then there was a re-instruction, which was really just a repetition. [00:37:55] Speaker 03: And then there was that pause where he takes a break. [00:37:58] Speaker 03: The counsel says, can he take a break? [00:38:01] Speaker 03: And I think all of that kind of indicates some of the confusion, some of the stress, and should cause some concern about the defendant's [00:38:11] Speaker 03: appreciation and understanding of exactly what the nuances were here. [00:38:15] Speaker 03: I think you make a good point when you talk about there was, I'm not sure where it fits in exactly terms of the waiver, but this whole plea colloquy was troubling in the sense, number one, the lawyers didn't [00:38:32] Speaker 03: were opposed to the defendant entering the play. [00:38:34] Speaker 03: And it was like everybody was kind of struggling to make it go down. [00:38:38] Speaker 03: At one point, the trial judge says, well, it's bare bones, but I guess it'll do. [00:38:42] Speaker 03: I guess we've met the elements. [00:38:45] Speaker 03: There was the whole issue about whether or not the defendant was part of a conspiracy to distribute to the United States when he had no involvement with the United States. [00:38:53] Speaker 03: And they said, well, okay, but he was paid in dollars. [00:38:55] Speaker 03: So from that, he could have inferred that the drugs were going to the United States. [00:38:59] Speaker 03: The only other point I'd like to make in terms of the leadership is I think the case that's [00:39:04] Speaker 03: clearest here and it should be controlling is the shoo decision where they said leadership enhancement was given to a tavern owner who allowed drugs to be distributed in his tavern and had control over who came in and did it and and that was reversed saying he didn't control anybody he controlled the property he didn't set the prices he didn't do the negotiations he didn't tell anybody what they could or could do he just gave them permission to use his premises that's not enough for leadership and that is directly analogous to what um [00:39:33] Speaker 03: Lorenzana Lima's control was of his property. [00:39:37] Speaker 03: He could control his property, but everything else. [00:39:39] Speaker 01: So Mr. Zucker, your point on the leadership is that the facts that the district court relied upon are unsupported. [00:39:48] Speaker 01: Is that it? [00:39:50] Speaker 03: Yes. [00:39:51] Speaker 03: That's certainly it in terms of the factual determination. [00:39:54] Speaker 03: And then there's, of course, also the due process violation. [00:39:56] Speaker 01: By it, I meant the district court's findings. [00:40:01] Speaker 03: Yes. [00:40:02] Speaker 03: Thank you for defining it in this context. [00:40:05] Speaker 03: And I would say we would allege both those its are the error. [00:40:09] Speaker 03: One, that there was not a factual predicate, and two, that there was constitutional violation in admitting the proffered stuff, relying on stuff without allowing the defendant access to it and the ability to challenge it. [00:40:22] Speaker 02: OK. [00:40:23] Speaker ?: Thanks. [00:40:23] Speaker 03: Is that it? [00:40:24] Speaker 03: Anything else? [00:40:24] Speaker 03: All right. [00:40:25] Speaker 03: Thank you. [00:40:26] Speaker 02: Thank you, counsel. [00:40:27] Speaker 02: Thank you to both counsel. [00:40:28] Speaker 02: Mr. Zucker, you're appointed by the court to represent the appellant in this case, and the court thanks you for your assistance. [00:40:35] Speaker 02: We'll take this case under submission.