[00:00:00] Speaker 04:
Case number 21-3089, United States of America versus Curtis Jenkins at balance.

[00:00:07] Speaker 04:
Ms.

[00:00:07] Speaker 04:
Goetzel for the at balance, Mr. Burney for the appellate.

[00:00:11] Speaker 01:
Ms.

[00:00:11] Speaker 01:
Goetzel, go ahead when you're ready.

[00:00:14] Speaker 04:
Good morning, and may it please the court, Cecilia Goetzel for appellant Curtis Jenkins.

[00:00:19] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:00:23] Speaker 04:
This case presents the straightforward question of whether the text of 3582 prohibits

[00:00:30] Speaker 04:
district courts from considering certain factors in determining whether extraordinary and compelling reasons warrant reducing a defendant's sentence.

[00:00:40] Speaker 04:
The district court believed that it lacked authority and discretion to consider factors dissimilar or incomparable to the guidelines criteria, including significant changes in the legal landscape.

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As this court already recognized in the United States versus Kevin Johnson,

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District courts may consider arguments based on Winstead and any other grounds the defendant presents to justify a sentence reduction.

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The only prohibition on what may satisfy the standard is clearly articulated in 28 USC section 994 T where Congress explicitly stated rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason for a sentence reduction.

[00:01:26] Speaker 01:
So you raise

[00:01:28] Speaker 01:
various arguments.

[00:01:30] Speaker 01:
Let's start with the commentary, the application note.

[00:01:36] Speaker 01:
Was the district court wrong to consider the application note as helpful guidance and expressly say that it was not bound by the application note?

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Our position is that the district court can consider the commentary, but that

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Given the posture of the commentary right now, the fact that it is application notes and the fact that it is not applicable means that the district court cannot be constrained by the commentary in the way that this district court was.

[00:02:16] Speaker 01:
Well, but she wasn't, she said, this is helpful guidance.

[00:02:21] Speaker 01:
She expressly said she wasn't bound by the commentary.

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And she didn't simply look at whether the medical and family considerations were within the four corners of the application.

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She looked to whether there were comparable medical and family issues.

[00:02:44] Speaker 01:
That seems pretty flexible.

[00:02:50] Speaker 04:
She used the commentary to the exclusion of considering

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other arguments.

[00:02:56] Speaker 01:
What did she not put aside?

[00:02:59] Speaker 01:
All right.

[00:02:59] Speaker 01:
So put aside the retroactivity and the Winstead issues for now, which are different just on considering the application.

[00:03:06] Speaker 01:
Do you think she gave it too much weight just on the, on the medical and family points?

[00:03:13] Speaker 04:
Our position is that reliance on the guidance on the commentary.

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is improper because of the reasons stated in law, that it is not a policy judgment by the United States Sentencing Commission of what constitutes the appropriate use of compassionate release in light of the First Step Act and recent changes.

[00:03:39] Speaker 04:
So our position is that the commentary is not appropriate for the court to consider.

[00:03:44] Speaker 04:
Had the court considered, had the court done what your honor just proposed without

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excluding, without excluding certain arguments, such as, for example, the court did not consider the long administrative segregation.

[00:04:06] Speaker 01:
I'm sorry, didn't consider what?

[00:04:08] Speaker 04:
The long period of administrative segregation that Mr. Jenkins was subject to because of his physical inability to work

[00:04:17] Speaker 04:
in a job that the DOP directed him to work at.

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He was in the SHU, which is Solitary Housing Unit, for almost a year, eight months, for no justifiable reason.

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And that was another reason set forth.

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And the court discussed it in the background, but then sort of ignored it in her analysis and turned only to

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is medical conditions and family circumstances.

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So it's clear from the opinion that the court was not addressing felt bound.

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It felt constrained by the types and kinds of things listed in the criteria when those types and kinds of things are not prohibited.

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The court is not prohibited from considering those under the plain text of the statute or any other

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the segregation on this point.

[00:05:18] Speaker 01:
It's what you're relying on.

[00:05:24] Speaker 01:
Also, the court can... We've got medical and family stuff, which she did consider.

[00:05:32] Speaker 01:
You have the non-retroactive change in law, which is a different point to come to.

[00:05:37] Speaker 01:
And you have the Winstead and one other case, the intervening cases, which we'll come to.

[00:05:44] Speaker 01:
Just trying to figure out, is there anything else?

[00:05:47] Speaker 04:
She appeared to believe that he had to be the only available caregiver, which is language that comes directly from the guidelines criteria in order to satisfy a standard based on family circumstances.

[00:06:06] Speaker 04:
So that those would be other indications that she felt

[00:06:11] Speaker 04:
found constrained or tethered to the guidelines commentary.

[00:06:18] Speaker 01:
So your next major point is the intervening legal changes.

[00:06:25] Speaker 01:
It's one statutory in two cases.

[00:06:28] Speaker 01:
As to the statute, why isn't the simple answer?

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There's nothing extraordinary with

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prospective application of new sentencing statutes.

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And that's exactly what Congress mandated here.

[00:06:45] Speaker 04:
The problem with that, Your Honor, is that that's putting a categorical bar on something where there is none.

[00:06:55] Speaker 01:
So Congress... It's the district court's explanation why

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prospective application of a new statute is not extraordinary.

[00:07:07] Speaker 01:
But what's wrong with that?

[00:07:08] Speaker 04:
Well, that's basically saying in no, that's the same thing as saying in no case.

[00:07:13] Speaker 04:
And because it because that's not as the court in Ruvalcaba demonstrated, I mean, explained, that's basically not making an individualized assessment that's required under the statute.

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3582, the court should make an individualized assessment of the impact of whatever perspective change in conjunction with the totality of the circumstances.

[00:07:43] Speaker 01:
I can never say this kind of thing is not exceptional.

[00:07:48] Speaker 04:
The court can find something not extraordinary or compelling in a specific case.

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That's not what the court did here, though.

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There would be nothing wrong with the court saying that

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I don't find this change in the law that Congress applied, respectively, to be extraordinary and compelling, to help show the defendant's extraordinary and compelling reasons, plural, warrants reducing this particular defendant's sentence.

[00:08:20] Speaker 04:
But that's not what the district court did here.

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The district court thought that she lacked authority.

[00:08:26] Speaker 00:
Ms.

[00:08:26] Speaker 00:
Katz, you were talking about the anti-stacking provision, is that correct?

[00:08:33] Speaker 04:
His sentence was based on a 45 year mandatory minimum.

[00:08:40] Speaker 00:
What do you mean by based on?

[00:08:42] Speaker 00:
He didn't plead to more than one discovered offense.

[00:08:46] Speaker 00:
There was no stacking.

[00:08:48] Speaker 04:
The plea was basically a Hobson's choice based on the stacking and the indictment.

[00:08:54] Speaker 00:
This is your argument that the plea was tainted by this overhang.

[00:09:04] Speaker 04:
That's correct, Your Honor.

[00:09:05] Speaker 00:
That's a non-starter for me.

[00:09:07] Speaker 00:
If we start getting into what's overhanging plea bargaining, there's no end to it.

[00:09:14] Speaker 04:
It's not just the perspective change in law that impacted the harshness of Mr. Jenkins' sentence.

[00:09:21] Speaker 04:
It is also the fact that he was subject to 22 to 27 years regardless.

[00:09:28] Speaker 04:
So on the plea that he took,

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His guidelines range was 22 to 27 years because of his career offender.

[00:09:37] Speaker 00:
And you affected this affected his negotiating position on the outcome of the plea bargain.

[00:09:41] Speaker 04:
And the imposition.

[00:09:42] Speaker 00:
I don't doubt that could happen, but I don't think it's a judicially manageable consideration.

[00:09:48] Speaker 00:
It's going to be something that's going to be not limited just to a change in statutory law for that.

[00:09:53] Speaker 00:
Lots of things might overhang.

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The negotiations in a way that burdens wants a person.

[00:09:59] Speaker 04:
And that's why the district court has broad discretion to consider things in particular cases.

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That's why the district court can look at the case as a whole.

[00:10:09] Speaker 04:
The court originally sentenced the defendant.

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It's exactly what the court said in long.

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court has broad discretion to consider in an individual case.

[00:10:19] Speaker 00:
So the defendant mistakenly thought his mother was dying of cancer and then leads to something, leads to something wouldn't otherwise have done.

[00:10:26] Speaker 00:
And then it turns out she's not dying or what have you.

[00:10:28] Speaker 00:
I mean, lots of things can affect the bargaining position.

[00:10:32] Speaker 04:
We agree, your honor.

[00:10:33] Speaker 04:
And that's why in that particular case, if a judge found that that wasn't an extraordinary or compelling reason that

[00:10:41] Speaker 04:
contributed to the totality of the circumstances that warranted a sentence reduction, there would be no abuse of discretion there.

[00:10:48] Speaker 04:
So here, the problem is that the court would not consider, it thought it was, its statutory authority was restrained or that it had no choice, no authority.

[00:11:03] Speaker 00:
And the language that the court uses- That may be, but I understand your point about feeling constrained.

[00:11:10] Speaker 00:
but what I'm focusing on is what it felt constrained not to consider.

[00:11:15] Speaker 00:
It's just to say this, please, this taint on the playbar.

[00:11:20] Speaker 00:
So I have your point.

[00:11:21] Speaker 04:
So our argument is that the district court is in the best position to consider those arguments and, um, and has broad discretion and that that we should trust district judges to exercise their discretion.

[00:11:35] Speaker 04:
And then at some point,

[00:11:37] Speaker 04:
there will be a quorum in the Sentencing Commission.

[00:11:39] Speaker 04:
And the Sentencing Commission, this is only a temporary moment in time.

[00:11:42] Speaker 04:
The Sentencing Commission will explain the appropriate use of 3582 and promulgate guidelines in light of the current events and in light of the change in the statute.

[00:11:55] Speaker 04:
And until that happens, the district court is not prohibited from considering changes in the law.

[00:12:04] Speaker 01:
On your Winstead,

[00:12:06] Speaker 01:
Those are arguments not about intervening legal change in the sense there's a new statute, nor about the typical compassionate release case, which is an intervening factual change, which makes the defendant sympathetic candidate for release.

[00:12:30] Speaker 01:
They are arguments about legal error

[00:12:35] Speaker 01:
in the sentence itself.

[00:12:38] Speaker 01:
District court just made an error in the sentencing.

[00:12:44] Speaker 01:
Why is that appropriately subject for compassionate release as opposed to just a plain vanilla 2255 argument?

[00:12:57] Speaker 01:
You're collaterally attacking the sentence.

[00:12:59] Speaker 01:
You're not arguing that something has happened post-sentencing.

[00:13:05] Speaker 04:
So it may be proper through a 2255, but that's not, but first of all, Mr. Jenkins wasn't moving for compassionate release based solely and compassionate release is not actually, those are not actually words that appear in the statute.

[00:13:24] Speaker 01:
Fair enough.

[00:13:25] Speaker 01:
Fair enough.

[00:13:25] Speaker 01:
That's usually what we think of.

[00:13:27] Speaker 04:
Agree.

[00:13:28] Speaker 04:
I understand your honor.

[00:13:29] Speaker 04:
So it is a sentence relief mechanism.

[00:13:32] Speaker 04:
It was contemplated as a safety valve.

[00:13:35] Speaker 04:
There is nothing in the statute or in 2255 that prohibits a court from considering the original sentence in deciding whether to reduce a sentence.

[00:13:48] Speaker 04:
So there is no textual bar for considering it.

[00:13:53] Speaker 01:
There are a lot of cases that stand for the proposition that if you're challenging the duration of confinement,

[00:14:05] Speaker 01:
reflected in a sentence, you must bring that claim exclusively through habeas, and 2255 is the reasonable substitute for habeas.

[00:14:16] Speaker 04:
Mr. Jenkins was not challenging the lawfulness of his sentence.

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He was not seeking to have his sentence vacated and have a resentencing.

[00:14:25] Speaker 04:
He was not challenging the constitutionality of his sentence.

[00:14:30] Speaker 04:
He was

[00:14:32] Speaker 01:
Well, except, I mean, your Winstead argument is precisely a challenge to the lawfulness of the sentence.

[00:14:44] Speaker 04:
Respectfully, Your Honor, we weren't challenging the lawfulness of the sentence.

[00:14:48] Speaker 04:
We were asking the district court to consider the sentencing error in considering whether she should reduce the sentence for not saying that the

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Under 2255, if the sentence is unlawful or unconstitutional, the court must correct it.

[00:15:03] Speaker 04:
There is no discussion.

[00:15:06] Speaker 04:
Now, there are procedural bars, but if the sentence is unconstitutional and unlawful, the district court must correct it.

[00:15:13] Speaker 04:
That is not what 3580.

[00:15:14] Speaker 04:
3582 is a totally separate procedural mechanism.

[00:15:20] Speaker 04:
It's a sentencing modification.

[00:15:21] Speaker 04:
It's a relief.

[00:15:22] Speaker 04:
It's a safety valve.

[00:15:24] Speaker 04:
It was contemplated as that.

[00:15:26] Speaker 04:
There is no reason why a district court is barred from considering the totality of the circumstances, including Section 3553A matters when the court is considering whether extraordinary and compelling reasons warrant reducing a defendant's sentence because 35, I mean, the Winstead error is,

[00:15:53] Speaker 04:
would be viewed under 35-53A.

[00:15:55] Speaker 04:
Courts that have said that district courts cannot consider changes in the law have said that courts can consider these changes when they get to the 35-53A factors.

[00:16:07] Speaker 04:
But the 35-53A factors overlap with reasons that can be extraordinary and compelling.

[00:16:14] Speaker 04:
The 35-53A factors are all encompassing.

[00:16:18] Speaker 04:
They include the personal history and characteristics of the defendant, rehabilitation,

[00:16:23] Speaker 04:
Congress contemplated that those factors, including what the proper sentence would be, would be considered as part of the extraordinary and compelling reasons analysis.

[00:16:35] Speaker 04:
And that's clear from its prohibition of rehabilitation alone being an extraordinary and compelling reason.

[00:16:45] Speaker 02:
Do you think his sentence was lawful?

[00:16:49] Speaker 04:
Your Honor, that's not what we've

[00:16:52] Speaker 04:
His sentence was imposed based on a career offender range that did not apply.

[00:16:58] Speaker 04:
So to say something is lawful or not lawful in the context of habeas and various other things is a very complicated matter.

[00:17:06] Speaker 04:
So he hasn't brought a habeas motion.

[00:17:09] Speaker 04:
He's not saying that he must be released from his sentence because it is unlawful.

[00:17:15] Speaker 04:
Here, he is saying that a totality of the circumstances warrant reducing his sentence and asking the court

[00:17:21] Speaker 04:
to consider the error that was made at sentencing.

[00:17:25] Speaker 02:
When the district court imposed the sentence, did the district court commit error?

[00:17:30] Speaker 04:
Yes.

[00:17:33] Speaker 04:
Because Winstead says the district court committed error.

[00:17:36] Speaker 02:
And that sounds an awful lot like you're challenging the legality of the sentence.

[00:17:40] Speaker 04:
We're not challenging the legality of the sentence.

[00:17:43] Speaker 04:
We didn't bring a 2255.

[00:17:46] Speaker 04:
We didn't say that the court.

[00:17:47] Speaker 02:
Maybe part of the reason you didn't bring a 2255 is that actually

[00:17:52] Speaker 02:
Among them, you waived your right to bring a 2055 as part of the bargain that you struck.

[00:18:00] Speaker 02:
And the collateral attack waiver in his plea deal seems all the more reason to be somewhat skeptical now of whether the passion of a lease statute allows you to, in effect, do the same thing.

[00:18:19] Speaker 04:
Respectfully, the district court could consider those arguments in finding that in this particular case, Mr. Jenkins' sentence or the reasons that he proffered are not extraordinary and compelling, but it can't categorically bar considerations of all of the original sentence in determining

[00:18:46] Speaker 04:
whether extraordinary and compelling reasons warrant a sentence.

[00:18:49] Speaker 02:
You think a waiver of future compassionate release motion is something that could be put into a plea deal?

[00:18:57] Speaker 04:
Your honor, the DOJ currently has a policy that it will not do that because of

[00:19:04] Speaker 04:
because the compassionate release statute is a relief mechanism.

[00:19:08] Speaker 04:
It's a sentence reduction mechanism and district courts can see through.

[00:19:13] Speaker 04:
District courts have the ability to see in individual circumstances to determine whether they think something is unusual and convincing to them that compels them to reduce someone's sentence and doesn't, but that's not what happened here.

[00:19:27] Speaker 01:
Do you think DOJ might take a different position on that if we were to hold that

[00:19:33] Speaker 01:
compassionate any legal error in the sentence can be challenged through compassionate police theory that you're not saying it compels relief as a matter of law.

[00:19:47] Speaker 01:
You're just saying it's a factor to be considered.

[00:19:50] Speaker 04:
Your honor, we're not asking the court and that's not the decision before the court to say that all legal error can be challenged

[00:20:00] Speaker 04:
through compassionate release.

[00:20:02] Speaker 01:
There will be a- That's your theory.

[00:20:06] Speaker 04:
Our theory is that the court must consider a totality of the circumstances.

[00:20:09] Speaker 01:
It can't- Including any legal error in the sentence?

[00:20:15] Speaker 04:
Including any legal error in the sentence as part of a totality of the circumstances analysis.

[00:20:22] Speaker 04:
So we're not saying that, and perhaps, I mean, courts have found that legal error alone

[00:20:31] Speaker 04:
Legal error alone with nothing else cannot be extraordinary and compelling.

[00:20:36] Speaker 04:
But to say that legal error in all cases as a matter of law cannot be extraordinary and compelling, it prohibits authority where there is no bar of authority in the statute.

[00:20:52] Speaker 04:
So there is no bar in the statute for courts to consider legal error.

[00:20:58] Speaker 04:
So the courts that have said that courts can't consider legal error have invented a prohibition, a categorical prohibition, and they shouldn't do that because the sentencing commission is tasked and it's in the best position to study the appropriate use of compassionate release and create guidelines that explain its appropriate use.

[00:21:19] Speaker 04:
And it hasn't had an opportunity to do that, and it will do that.

[00:21:23] Speaker 04:
The court, by doing that, these other circuits have

[00:21:28] Speaker 04:
have you served the discretion of the district judge and of the sentencing commission?

[00:21:34] Speaker 01:
Okay, thank you.

[00:21:37] Speaker 01:
We'll give you a few minutes on rebuttal.

[00:21:56] Speaker 03:
Good morning.

[00:21:57] Speaker 03:
Good morning, Your Honor.

[00:21:58] Speaker 03:
May it please the court to come over into the United States.

[00:22:01] Speaker 03:
I'd like to begin with the Long issue and the standard, because that's where we began with Helen's argument.

[00:22:09] Speaker 03:
And just first, the trial court clearly demonstrated that it understood the correct legal standard and that it did not consider itself bound by Long.

[00:22:19] Speaker 03:
And we have the relevant quotes in our opposition.

[00:22:22] Speaker 03:
I'm not going to belabor this point unless there are any questions.

[00:22:26] Speaker 03:
But it's laid out very clearly and very early when it's laying out the legal standard.

[00:22:33] Speaker 03:
The court says on J 243, for instance, it recognizes long sites long.

[00:22:40] Speaker 03:
It cites other cases that have recognized that 1B1.13 is not controlling, but then says, even though it's not binding, I can still inform the analysis.

[00:22:50] Speaker 03:
And then the court goes on 244 of the joint appendix to say the court finds it useful to consider the suggestions as general guidance.

[00:22:59] Speaker 03:
So the court clearly understood what the legal standard was.

[00:23:01] Speaker 03:
The court does need to start from somewhere.

[00:23:03] Speaker 03:
I mean, circuit courts have been very clear that extraordinary compiling does not mean that district courts can just do whatever they want.

[00:23:10] Speaker 03:
And so that's what the court was doing.

[00:23:11] Speaker 03:
It was starting from somewhere.

[00:23:12] Speaker 03:
It was just using the commission guidelines as sort of a starting point to reach the very arguments that a parent was making regarding his health conditions, regarding COVID, regarding his mother, and then moving on to the sentencing issues as well, which we'll discuss.

[00:23:29] Speaker 01:
But I think it was very, it was very fact bound on the family and health issues.

[00:23:37] Speaker 01:
It then said categorically, I shouldn't, I can't or shouldn't consider the intervening statute that was made prospective for the two intervening judicial decisions.

[00:23:54] Speaker 01:
So what's, what do you, how do you answer your friend's argument that those considerations should have been assessed case by case?

[00:24:06] Speaker 01:
Throw everything into the hopper, I guess.

[00:24:09] Speaker 01:
How bad was the sentencing error versus how bad was his disease?

[00:24:15] Speaker 03:
So we disagree with appellant on that.

[00:24:17] Speaker 03:
We don't think that the district courts in general should consider those factors.

[00:24:22] Speaker 03:
I would say too, as I start this question, I think that the district court was doing two things.

[00:24:29] Speaker 03:
And so in the section that your honor referred to, and that's why we briefed it the way that we have, we're trying to tease out both of those things.

[00:24:36] Speaker 03:
I think the district court is first of all saying.

[00:24:38] Speaker 03:
I shouldn't be considering these things.

[00:24:41] Speaker 03:
These things are not appropriate for passion release.

[00:24:44] Speaker 03:
But the district court is also engaging with.

[00:24:47] Speaker 03:
Appellants arguments about how harsh the sentence was and she goes into some detail about that.

[00:24:53] Speaker 03:
He talks about what she said at sentencing.

[00:24:56] Speaker 03:
She acknowledges that perhaps it could be considered harsh.

[00:25:00] Speaker 03:
And she goes through the exact numbers.

[00:25:01] Speaker 03:
So she goes through the fact that it was a C1C plea, it was 96 to 144 month range, the sentence at the bottom.

[00:25:08] Speaker 03:
And so I think she's saying, she's also basically saying, even if I thought that these were proper considerations,

[00:25:20] Speaker 03:
They're just not enough to show extraordinary and compelling circumstances in this situation, where he was not sentenced as a career offender.

[00:25:29] Speaker 03:
He was not sentenced under ACA.

[00:25:31] Speaker 03:
Where do you get that alternative?

[00:25:36] Speaker 01:
I didn't read it that way.

[00:25:38] Speaker 03:
So if you go to the order, which is at... I have it.

[00:25:43] Speaker 03:
Right, at JA... Sorry, at JA 245.

[00:25:47] Speaker 01:
Right.

[00:25:50] Speaker 01:
sentence itself was largely driven by the 60-year mandatory minimum.

[00:25:54] Speaker 03:
Right, which I think that's a typo, 60-month mandatory minimum.

[00:25:58] Speaker 03:
And then she goes on, you know, the grass concludes that the original sentence was harsh.

[00:26:02] Speaker 03:
She acknowledges that his circumstances of his incarceration, talking about, Paolo was talking about solitary confinement.

[00:26:09] Speaker 03:
He seems to be acknowledging that as well.

[00:26:11] Speaker 03:
And then she goes on to say, as I think this is the point your honor is making,

[00:26:16] Speaker 03:
says that the compassionate release statute was not intended to serve as a second chance and there's more language along those lines.

[00:26:22] Speaker 03:
Then in the next paragraph she's talking about an agreed 96 to 144 months of incarceration.

[00:26:28] Speaker 03:
So I agree with your honor that she is more squarely saying I shouldn't be considering these facts.

[00:26:35] Speaker 01:
And she may well be right about that but it does seem like it's a category that part of the analysis is categorical.

[00:26:42] Speaker 01:
That's correct.

[00:26:43] Speaker 03:
I do think she's definitely saying that.

[00:26:45] Speaker 03:
And so just starting on that first point, the government agrees with that.

[00:26:51] Speaker 03:
And I think the government would point this court to Andrews.

[00:26:53] Speaker 03:
That's a very good case on that.

[00:26:55] Speaker 03:
But it's not just Andrews.

[00:26:56] Speaker 03:
It's Jarvis.

[00:26:57] Speaker 03:
It's Dacher.

[00:26:57] Speaker 03:
There are other cases.

[00:27:00] Speaker 01:
This is the point that you have to go through 2255 to challenge.

[00:27:04] Speaker 03:
That's definitely part of it.

[00:27:06] Speaker 03:
And Dacher says that squarely.

[00:27:08] Speaker 03:
So we would agree with that.

[00:27:10] Speaker 00:
Do you see that in the opinion?

[00:27:12] Speaker 00:
In fact, or yes, it doesn't say that in the in the judge, Mr. Judges.

[00:27:16] Speaker 03:
The judge did not discuss 22 55.

[00:27:18] Speaker 03:
It's an alternative, but what we would submit that is an alternative that defendants can avail themselves of.

[00:27:25] Speaker 01:
I mean, it may be implicit.

[00:27:30] Speaker 01:
In her statement.

[00:27:32] Speaker 01:
It may be it may be a.

[00:27:36] Speaker 01:
It may follow from her statement, the compassionate release statute was not intended to serve as a second chance to address the sentence.

[00:27:45] Speaker 01:
The corollary of that is that kind of argument.

[00:27:49] Speaker 01:
She says categorically, don't raise it through compassionate release.

[00:27:54] Speaker 01:
The suggestion might be, do raise it through 2255.

[00:27:58] Speaker 01:
It is pretty cryptic.

[00:28:01] Speaker 01:
That's right.

[00:28:02] Speaker 03:
I acknowledge that.

[00:28:03] Speaker 03:
She doesn't mention 2255 explicitly.

[00:28:05] Speaker 01:
Is that in Andrews, the case she cites?

[00:28:07] Speaker 01:
Does Andrews talk about 2255?

[00:28:09] Speaker 03:
I don't believe so, but Backer does.

[00:28:11] Speaker 03:
And I think the district court cited Backer as well, if I'm remembering correctly.

[00:28:15] Speaker 00:
It seems to me what you just said about the district judge is not inconsistent with the defendant's argument here, the petitioner's argument here, that this is not an attack on the Senate.

[00:28:31] Speaker 00:
Tax on the sentence have to be rooted through 2255, let's say.

[00:28:36] Speaker 00:
But something that says, well, look, the sentence was lawful.

[00:28:38] Speaker 00:
I understand that.

[00:28:40] Speaker 00:
I'm not saying it was unlawful.

[00:28:42] Speaker 00:
It was when it was imposed.

[00:28:45] Speaker 00:
It hasn't become unlawful.

[00:28:47] Speaker 00:
I'm asking for compassionate release with respect based upon post-sentencing developments.

[00:28:58] Speaker 00:
Well,

[00:28:59] Speaker 00:
I think there's a lot of references around these cases to the point that it is about post-sentencing developments.

[00:29:10] Speaker 00:
That's why the Judd Department wouldn't rule that out in an agreement, right?

[00:29:14] Speaker 00:
I mean, it wouldn't make sense to say you can't raise something that hasn't yet happened.

[00:29:19] Speaker 03:
Well, I think, yes, the compassionate release statute

[00:29:25] Speaker 03:
inherently is about post-sentencing developments, but I think cases like Andrews and Jarvis and Thacker are suggesting those developments do not deal with the length of somebody's sentence.

[00:29:39] Speaker 03:
So, for example, a post-sentencing development, the compassionate release statute, would be designed for

[00:29:45] Speaker 03:
would be terminal illness, for instance.

[00:29:48] Speaker 03:
Health conditions, like COVID.

[00:29:50] Speaker 03:
And here, of course, we would submit, we've briefed it this way, that appellants' health conditions did not rise to that level.

[00:29:58] Speaker 03:
And the district court explains, I think, why that is.

[00:30:00] Speaker 03:
I won't spend much time on that.

[00:30:02] Speaker 03:
But

[00:30:05] Speaker 03:
Pieces like Andrews and Thacker and Jarvis, and there are others.

[00:30:09] Speaker 03:
I frankly ran out of space on our opposition, but there's Hunter.

[00:30:12] Speaker 03:
There's a case in Crandall in the Eighth Circuit.

[00:30:14] Speaker 03:
There are other cases.

[00:30:16] Speaker 03:
Other circuits have made clear that there's nothing extraordinary about later law that makes a prospective change in career offender status, what qualifies.

[00:30:29] Speaker 03:
There's nothing extraordinary about that.

[00:30:32] Speaker 03:
I think Andrew says that very squarely.

[00:30:34] Speaker 03:
In fact, the ordinary rule is that it doesn't apply retroactively, it applies prospectively.

[00:30:40] Speaker 00:
Well, with respect to the sense of the lawfulness of the sentence, suppose something is decriminalized, then after the sentence is imposed, the person is serving the sentence.

[00:30:51] Speaker 00:
In other words, society has taken a different view, changed its view of the nature of the conduct.

[00:30:59] Speaker 00:
That strikes me as something that fits so nicely with the 3553 fact.

[00:31:04] Speaker 00:
asking about whether the sentence is consistent with needs for deterrence.

[00:31:14] Speaker 00:
There are at least two factors that would seem to take that directly into account.

[00:31:18] Speaker 00:
Are you saying they can't raise it?

[00:31:20] Speaker 03:
Well, they could raise it if they establish some other independent, extraordinary, and compelling reason.

[00:31:26] Speaker 03:
I just want to focus on the decriminalization hypothetical, that specific one.

[00:31:31] Speaker 03:
Congress almost always, when they decriminalize something, they have a retroactivity activity provision in the statute.

[00:31:37] Speaker 00:
Well, deal with my case.

[00:31:38] Speaker 03:
Right.

[00:31:39] Speaker 03:
Well, let's say that they did it, right?

[00:31:40] Speaker 03:
So in that case, the court would consider that under the 3553 factors, but that wouldn't be an extraordinary and compelling circumstance.

[00:31:51] Speaker 00:
They can't get there unless it is, right?

[00:31:53] Speaker 00:
Can't get to the 35th.

[00:31:55] Speaker 00:
Unless something is.

[00:31:57] Speaker 03:
Right, unless there's something else, some serious health condition or something like that.

[00:32:01] Speaker 03:
Well, or maybe this.

[00:32:04] Speaker 03:
Well, I mean, I think our position would still be that that's not an extraordinary and compelling circumstance.

[00:32:12] Speaker 03:
But I also think, I understand your honor's point, likely Congress, likely it would not become an issue because Congress would make some sort of issue.

[00:32:22] Speaker 00:
are where the motion is not a habeas motion, but also is not viewed as an attack on the Senate.

[00:32:40] Speaker 03:
Yeah, I'm not aware of any other situation like that either.

[00:32:42] Speaker 00:
I think this is unique in that regard.

[00:32:45] Speaker 00:
There's no opportunity out of bounds to attack the legality of the Senate.

[00:32:51] Speaker 00:
It's not on the table.

[00:32:52] Speaker 03:
Well, through this mechanism, yes.

[00:32:54] Speaker 03:
But again, we would say that you could attack it through a 2255.

[00:32:57] Speaker 00:
I understand that.

[00:32:59] Speaker 00:
I'm saying through this mechanism, it is not a threat to the legality of the sent.

[00:33:02] Speaker 03:
Right.

[00:33:03] Speaker 00:
I understand.

[00:33:04] Speaker 03:
I see I'm running out of time.

[00:33:06] Speaker 03:
I don't want to take up any more of the court's time.

[00:33:10] Speaker 03:
I can respond to any other questions.

[00:33:12] Speaker 03:
If not, I'll just

[00:33:13] Speaker 03:
Include there.

[00:33:14] Speaker 03:
We were just asking you for the district court's order.

[00:33:16] Speaker 00:
Thank you.

[00:33:17] Speaker 00:
Thank you.

[00:33:18] Speaker 00:
Well, I guess only one second council.

[00:33:20] Speaker 00:
I'm back in your brief.

[00:33:21] Speaker 00:
I didn't see you taking a position on the circuits.

[00:33:23] Speaker 00:
Is that correct?

[00:33:25] Speaker 00:
Well, we noted in a footnote, um, that one that says in the alternative, it's, uh, your honor to it, but it's discussing these cases like this stack or Andrew's.

[00:33:38] Speaker 01:
I'm sorry.

[00:33:38] Speaker 01:
Is this is on the question of,

[00:33:42] Speaker 01:
intervening statutes that are by their terms perspective or intervening judicial decisions that, of course, are retroactive.

[00:33:51] Speaker 03:
We definitely deal with the first.

[00:33:53] Speaker 01:
Yeah, I thought there's a split on the first question.

[00:33:57] Speaker 03:
That's correct.

[00:33:58] Speaker 03:
And our position is basically these cases are right.

[00:34:01] Speaker 03:
These cases provide even more basis to affirm the district court's order.

[00:34:05] Speaker 00:
And that's in your brief?

[00:34:07] Speaker 03:
Well, I can bring up the exact language and I'll point your honor to the footnote.

[00:34:16] Speaker 03:
Okay, it's footnote five, starts on page 20.

[00:34:23] Speaker 03:
So the cases, the service split that the appellant is focused on, those cases, Andrews, Jarvis, and Thacker are dealing squarely with 924-C stacking.

[00:34:33] Speaker 03:
That was the issue with those cases.

[00:34:35] Speaker 03:
And we say, because no stacking occurred in this case, this court need not address the issue here.

[00:34:40] Speaker 03:
And this also, by the way, gets to your honor's question about the fact that he didn't receive these career offender ACCA sentences.

[00:34:48] Speaker 03:
But we then say these decisions do, however, provide further support for the proposition that the district court did not err in rejecting these arguments.

[00:34:56] Speaker 03:
Now we say, instead, the arguments are misplaced on other grounds.

[00:35:00] Speaker 03:
But that's why I want to convey to the court that I think we have two independent arguments for why the district court feels this way.

[00:35:06] Speaker 00:
Ordinarily, I think you would agree we do not, as a practice, resolve a matter that we have to resolve, even a statute.

[00:35:16] Speaker 03:
Right, so I...

[00:35:17] Speaker 03:
I think there are two different ways the district court's decision could be affirmed on this.

[00:35:23] Speaker 03:
The first is Andrew Jarvis Dacker, because even though those did deal with 924C, there's a lot of broad language in there about how there's nothing extraordinary about the change in these types of considerations.

[00:35:33] Speaker 01:
Even with intervening cases?

[00:35:35] Speaker 03:
Even with intervening cases.

[00:35:37] Speaker 03:
So that's one way this court could affirm.

[00:35:40] Speaker 03:
The other way this court could affirm is feeling more

[00:35:43] Speaker 03:
what Judge Ginsburg's question was earlier, he wasn't sentenced under these provisions, right?

[00:35:47] Speaker 03:
And I do think that the district court understood that, and the opinion, the orders, pieces that out, even though I acknowledge, as I was responding to Judge Paxson's questions, that it more squarely seems to be saying, I shouldn't be considering this.

[00:36:04] Speaker 00:
Let me send a message back to the department.

[00:36:06] Speaker 00:
As I understand it, in a circumstance like this, you're not obliged to engage

[00:36:12] Speaker 00:
observe the formalities, some of the formalities that we ordinarily expect under our rules.

[00:36:18] Speaker 00:
The defendant is excused from that.

[00:36:19] Speaker 00:
The petitioner is excused from that as well.

[00:36:21] Speaker 00:
It would still be useful for the court if the government did have such things as a summary of its argument on the table of its cases.

[00:36:31] Speaker 00:
I understand your honor.

[00:36:32] Speaker 00:
Thank you.

[00:36:32] Speaker 00:
I'll take that back.

[00:36:33] Speaker 00:
Thank you.

[00:36:34] Speaker 00:
Thank you.

[00:36:47] Speaker 04:
I just want to make two points quickly.

[00:36:50] Speaker 04:
One about the government's arguments and its lack of arguments, and one about addressing Judge Ginsburg's question about other statutory mechanisms.

[00:37:01] Speaker 04:
First of all,

[00:37:02] Speaker 04:
Both of the government's positions that it just took, the first, that the court should follow Jarvis Backer and those cases, the government did not brief on appeal.

[00:37:12] Speaker 04:
The second position that the government takes, that he wasn't sentenced under these provisions, the government did not brief to the district court.

[00:37:20] Speaker 04:
So the government never presented the arguments that it makes in its brief year to the district court, for the district court to consider whether

[00:37:32] Speaker 01:
We can affirm on any ground supported by the record.

[00:37:36] Speaker 01:
That's correct, your honor, but the district court, regardless of whether or not there was an alternative case specific holding, there's clearly a holding that as a general matter, you shouldn't be considering intervening legal changes.

[00:37:54] Speaker 04:
That would be the government's

[00:37:57] Speaker 04:
First, the argument that the government is saying where the court should follow Jarvis and Factor where it didn't brief that on appeal.

[00:38:06] Speaker 04:
The argument that the court, that the government did brief on appeal was that there are no extraordinary and compelling reasons in this case because it claims that there was no prejudice.

[00:38:19] Speaker 04:
He wasn't sentenced under these statutes.

[00:38:21] Speaker 04:
It didn't say that in the district court.

[00:38:23] Speaker 04:
All it said, it only addressed his medical issues in the district court.

[00:38:27] Speaker 04:
And the second thing to answer Judge Ginsburg's question is that 3582C2 provides a sentence relief mechanism.

[00:38:36] Speaker 04:
Section 404B provides a sentence relief mechanism.

[00:38:41] Speaker 04:
The inquiry isn't quote unquote out of bounds.

[00:38:46] Speaker 04:
It's discretionary.

[00:38:48] Speaker 04:
So it's discretionary, and the Sentencing Commission is tasked with determining the appropriate use, and it will.

[00:38:57] Speaker 04:
and courts will be bound by that.

[00:39:02] Speaker 01:
Thank you very much.

[00:39:04] Speaker 01:
Thank you.