[00:00:00] Speaker 00: Case number 22-3021, United States of America versus Keith Matthews, also known as Bang, also known as Bane, also known as Bane, appellant. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Gatzel for the appellant, Mr. Lenners for the appellee. [00:00:17] Speaker 04: Good morning, Ms. [00:00:18] Speaker 04: Gatzel. [00:00:19] Speaker 03: Good morning, may it please the court. [00:00:21] Speaker 03: Celia Gatzel for appellant Keith Matthews. [00:00:24] Speaker 03: I'd like to reserve two minutes. [00:00:28] Speaker 03: Mr. Matthews asked his court to vacate his term of imprisonment and to vacate the discretionary conditions listed in the written judgment that were not ordered at sentencing. [00:00:41] Speaker 03: The district court did not have authority on April 5th to impose incarceration for the same conceded violations for which it had already imposed home detention months before on November 17th. [00:00:56] Speaker 03: The language of [00:00:58] Speaker 03: Section 3583, which governs supervised release is plain and clear. [00:01:03] Speaker 03: The court may order the defendant to remain at his place of residence only as an alternative incarceration. [00:01:11] Speaker 05: Can I ask, is your position at bottom an either or proposition? [00:01:18] Speaker 05: The district court can either impose imprisonment or home detention, but not both. [00:01:26] Speaker 05: Or is it at bottom a question about timing, which is the district court has to impose one sentence and it can include components of each. [00:01:38] Speaker 05: But the problem here is you think there were punishments imposed at two different times. [00:01:47] Speaker 05: So you do take the broader position. [00:01:49] Speaker 05: It's either or. [00:01:50] Speaker 03: We do take the broader position based on the clean tax statute. [00:01:56] Speaker 03: language only as an alternative to incarceration must be given some meaning. [00:02:01] Speaker 04: But why can't that mean, I'm sorry, why can't that mean that the district court could say, um, I think I'd be justified in lock up for a year, but as a matter of grace, I'm going to lock you up for six months and put you on six months of home detention. [00:02:22] Speaker 04: Why isn't that consistent with the statutory language? [00:02:26] Speaker 03: That is not the issue. [00:02:28] Speaker 03: That may be consistent with the statutory language. [00:02:31] Speaker 04: I don't want you to fight my hypothetical. [00:02:34] Speaker 04: I want you to answer my hypothetical. [00:02:36] Speaker 04: Is that consistent with the statutory language? [00:02:39] Speaker 04: Yes or no? [00:02:41] Speaker 03: We would argue that it's not consistent with the statutory language, but we do understand how it has been [00:02:50] Speaker 03: in cases as consistent with the statutory language. [00:02:53] Speaker 04: Is there any case that's held that that's not consistent with the statutory language? [00:02:58] Speaker 03: I don't believe there has been any challenge to that based on the plain text of the statutory language that I'm aware of. [00:03:09] Speaker 03: In this case, that's not what happened. [00:03:12] Speaker 05: But I mean, on that broader point that you can never do both, your best [00:03:20] Speaker 05: case in all of this is Matthews and Matthews is dispositively against you on that point. [00:03:28] Speaker 03: I'm not sure which. [00:03:29] Speaker 05: I'm sorry. [00:03:29] Speaker 05: I'm sorry. [00:03:31] Speaker 05: You're Matthews. [00:03:31] Speaker 05: Ferguson. [00:03:32] Speaker 05: I'm sorry. [00:03:34] Speaker 03: Ferguson isn't dispositively against. [00:03:39] Speaker 03: Ferguson isn't dispositively against me. [00:03:42] Speaker 05: It says you can have a component of imprisonment and a component of [00:03:48] Speaker 05: tension, and the limiting principle is that the sum total of both can't exceed the stat max. [00:03:55] Speaker 03: To the extent that Ferguson implies that you can have both, implication in Ferguson is not explained or supported by its own reasoning. [00:04:08] Speaker 05: Cuts against you, let's say. [00:04:12] Speaker 03: Well, I think [00:04:13] Speaker 03: The reasoning in Ferguson works for us. [00:04:17] Speaker 03: The conclusion that Ferguson reaches does not flow from its reasoning. [00:04:22] Speaker 03: So the statutory doesn't really make sense because there's nothing in 3583E4 in the language that the court may impose on detention only as an alternative to incarceration that [00:04:42] Speaker 03: fires the court to sentence under the statutory maximum. [00:04:47] Speaker 03: And the BOP doesn't credit home detention toward imprisonment. [00:04:56] Speaker 03: And in fact, the Supreme Court has said that home detention is not official detention that can be credited towards a term of imprisonment. [00:05:06] Speaker 03: So there's really nothing in the statute that supports the condition that Ferguson and other cases have added that where 3583 E4 would only apply to the statutory maxima. [00:05:27] Speaker 05: If it's not, if home detention is not even a big enough deal [00:05:34] Speaker 05: to trigger this offset, why would it be such a big deal to trigger your all or nothing? [00:05:42] Speaker 05: Once you do a tiny bit of one, you can't do any of the other. [00:05:46] Speaker 03: Because we're talking about supervised release here. [00:05:48] Speaker 03: The person is supposed to be released. [00:05:51] Speaker 03: The person is supposed to be getting rehabilitation on release. [00:05:54] Speaker 03: The point of supervised release is to have the person on release. [00:05:59] Speaker 03: So home detention may be imposed as an alternative [00:06:04] Speaker 03: incarceration in this circumstance. [00:06:07] Speaker 03: It does make sense in that way. [00:06:09] Speaker 04: Let's suppose I, even if I have some sympathy or even if I were to agree with your argument, um, I think you've got a preservation problem here that I'm surprised the government didn't make more of in its briefing. [00:06:26] Speaker 04: But the page 100 of the appendix Judge Leon after having [00:06:33] Speaker 04: you know, discussed all of this and said that he's going to place him in home detention says at the top of the page, you know, depending upon how things work out when we come back on December 15th, I'll be in a position at that point to sentence him for violations. [00:06:52] Speaker 04: So, hey, he says, I'm not sentencing him now. [00:06:56] Speaker 04: Um, [00:06:58] Speaker 04: I'll be in a position to sentence him then for violations that are proven, which also suggests that he's not revoking yet because he says that, like, we don't know what's been proven. [00:07:12] Speaker 04: And then he asks if there's any questions of government, and he asks any questions of you. [00:07:18] Speaker 04: And you say, no, Your Honor, thank you. [00:07:20] Speaker 04: And he says, is that acceptable to the defense? [00:07:24] Speaker 04: And your response was, yes, thank you. [00:07:27] Speaker 04: So having had that inner change, um, how is it preserved? [00:07:36] Speaker 04: It's an argument that he had no authority to hold him. [00:07:42] Speaker 03: So, um, my answer is twofold. [00:07:46] Speaker 03: Um, first the judge said, even though the judge said he wasn't sentencing him, it was view. [00:07:54] Speaker 03: We, [00:07:55] Speaker 03: we viewed this as him sentencing him for the admission that he had just made. [00:08:01] Speaker 03: So a sentence on the admissions to the positive drug tests. [00:08:07] Speaker 03: So Mr. Matthews had conceded that he tested positive and this was a 60 day sanction, which he says, [00:08:20] Speaker 03: He will put him on home detention for 60 days. [00:08:24] Speaker 03: That's on page 98. [00:08:26] Speaker 03: Yeah. [00:08:26] Speaker 04: And he says that we'll continue him on supervision. [00:08:31] Speaker 03: Right. [00:08:31] Speaker 03: Because when you continue on supervision, because you don't have to revoke to give someone a sanction, you don't have to formally revoke to give somebody a sanction of home detention under the statute. [00:08:46] Speaker 03: It's an alternative. [00:08:48] Speaker 03: It's an alternative to revocation and incarceration. [00:08:51] Speaker 04: So now I'm really confused because you said that he'd been revoked and he can't be revoked twice. [00:08:58] Speaker 04: Now you're saying that he's not revoked. [00:09:02] Speaker 04: It's a sanction that's allowable short of revocation. [00:09:08] Speaker 03: It's [00:09:09] Speaker 03: It was de facto, it was effectively a revocation. [00:09:14] Speaker 03: It was a sanction imposed for the conceded violations at that hearing because there was no authority to, it could only be imposed as an alternative to incarceration under the plain language of the statute. [00:09:30] Speaker 05: So- Why can't it be an E2 modification of the original conditions? [00:09:37] Speaker 03: It can't be an E2. [00:09:39] Speaker 03: to modify, it could have been a need to modification of the original conditions, but then that points you back to 3563 B19, which is the equivalent provision of the original discretionary conditions, which says the exact same thing, that you can order someone to remain at their place of residence except that a condition under this paragraph may be imposed only as an alternative to incarceration. [00:10:09] Speaker 03: So the language only as an alternative to incarceration has to mean something. [00:10:15] Speaker 03: It cannot be meaningless. [00:10:17] Speaker 04: So, so, so let me just see if I can understand this part of your argument. [00:10:23] Speaker 04: Could the district court say under 3583 D two, I'm going to modify [00:10:35] Speaker 04: conditions of supervised release and add a condition that at this point you will live at the DC jail until our next hearing. [00:10:47] Speaker 04: Does court have the authority to to to impose that as a condition of supervised release? [00:10:55] Speaker 03: No. [00:10:56] Speaker 04: Okay, so so I would assume then that that's why you're saying [00:11:02] Speaker 04: that he can't impose home detention because if he can impose incarceration and has no authority, those incarceration, you can only impose home detention as an alternative to incarceration, then you don't have authority to impose home detention as a just kind of condition of supervisor. [00:11:28] Speaker 03: release. [00:11:29] Speaker 03: Correct. [00:11:29] Speaker 03: That's her position. [00:11:30] Speaker 03: You do not have authority and that's clear from the plain language of the statute. [00:11:35] Speaker 04: The problem is when he said is this okay with you, you said yes. [00:11:40] Speaker 03: Right. [00:11:40] Speaker 03: And it was okay with us. [00:11:43] Speaker 03: We were okay with the sanction of 60 days of home detention for the conceded violation at that time. [00:11:52] Speaker 03: We object to the prison sentence that was subsequently imposed. [00:11:56] Speaker 05: Well, but when he asked [00:11:58] Speaker 05: Is this okay? [00:12:00] Speaker 05: It was more than just the home detention. [00:12:03] Speaker 05: It was his whole two-part approach to this, the temporary stopgap measure, while he then figures out whether to revoke. [00:12:13] Speaker 03: Right. [00:12:14] Speaker 03: And we understood that that was the sanction for the conceded violations at that hearing was a 60-day definitive sanction. [00:12:25] Speaker 03: And that when we came back, we would [00:12:27] Speaker 03: he would be sanctioning him for the other violations that at that time the government hadn't proven and at that time we contested. [00:12:37] Speaker 03: So we viewed the 60 day sanction as a sanction for the positive drug test that Mr. Matthews conceded at that hearing and as a definitive and final sanction for those. [00:12:52] Speaker 03: We thought we were coming back for the [00:12:55] Speaker 03: to only address the other remaining violations. [00:12:58] Speaker 03: And at that point, the court even mentioned it might be in a position to continue him on home detention for a period of 60 days. [00:13:10] Speaker 03: So the court said when it came back, it would either sentence him. [00:13:17] Speaker 04: What did you think was happening when it lasted longer than 60 days because of various delay? [00:13:24] Speaker 03: So in hindsight, [00:13:26] Speaker 03: I should have objected when there was no hearing, but I should have filed something on the record to object to the continuing home detention. [00:13:35] Speaker 03: But I assumed that the court was going to consider that period of home detention and sort of count it towards whatever sanction it ultimately imposed for the remaining violations. [00:13:49] Speaker 03: And that's not what the court did. [00:13:51] Speaker 03: consider it at all. [00:13:52] Speaker 03: So that was a mistake. [00:13:54] Speaker 03: It was a mistake on my part not to object to the sanction lasting beyond the 60 days, which would have been on January 18. [00:14:03] Speaker 03: So the two months of sanction for the positive drug test that was given at the November 17 hearing would have ended on January 18. [00:14:13] Speaker 03: And at that point, [00:14:16] Speaker 03: I kept thinking we were coming back for a hearing and then the hearing kept getting postponed. [00:14:20] Speaker 03: And I should have objected to continuing home detention because, but I assumed that the court was going to consider that time, that burden and that sanction that was under the statute an alternative to imprisonment toward the ultimate punishment that the court would impose. [00:14:40] Speaker 04: And that's just not what happened. [00:14:44] Speaker 04: Even if I were to agree with all your entire argument that you've made to this point, then wouldn't the remedy be then to send it back or maybe vacate and send it back for the district and whether or not to revoke Mr. [00:15:16] Speaker 04: violations other than the ones that were the basis for what you say was the first revocation? [00:15:23] Speaker 03: Um, no. [00:15:25] Speaker 03: Um, we we think the court should take a sentence because Mr because the condition did continue. [00:15:35] Speaker 03: It continued past the sanction. [00:15:38] Speaker 03: So the problem is that and and the other the only other [00:15:43] Speaker 03: violations that remained at issue in this litigation were missed drug tests in November and December of 2021. [00:15:51] Speaker 03: So when the sanctions continued in past January 18th, it continued until April 5th, that covered significant period of time that punished him for the violations that conceded. [00:16:07] Speaker 03: So we would argue that the court should vacate the sentence of imprisonment because [00:16:13] Speaker 03: court imposed an alternative sanction of home detention for all the violations that were issued here. [00:16:21] Speaker 04: However, I think it's in the interest of time. [00:16:24] Speaker 04: Why don't you get to the second issue? [00:16:26] Speaker 05: Can I just one question before we do that? [00:16:29] Speaker 05: Suppose it's where the same situation except your client hadn't conceded [00:16:38] Speaker 05: any violations. [00:16:40] Speaker 05: Government makes all these allegations about failed drug test. [00:16:43] Speaker 05: It's an open question. [00:16:45] Speaker 05: Judge Leon has concern. [00:16:47] Speaker 05: He wants to do something interim while figuring out whether or not there were any violations. [00:16:54] Speaker 05: Could he and in that hypothetical, could he have done this two step thing? [00:16:59] Speaker 05: Put him on home detention. [00:17:01] Speaker 03: So the court [00:17:05] Speaker 03: Probably could have put him on home detention under 3143A1 by following the procedures in 3143A1 as outlined in rule 32.1A6, which is release or detention pending revocation. [00:17:24] Speaker 05: But couldn't, on your theory, even with no concession, which makes it look more like a punishment, you say he couldn't [00:17:33] Speaker 05: He couldn't invoke either E2 or E4 to modify the conditions or impose a remain at home order that wouldn't exhaust his ability to impose the later term of imprisonment. [00:17:54] Speaker 03: No, under the plain text of the statute, the court can only impose [00:18:03] Speaker 03: home detention as an alternative to incarceration. [00:18:07] Speaker 05: We're back back to the other. [00:18:09] Speaker 03: Right. [00:18:09] Speaker 03: But the court would impose home detention as as a condition of, I guess, like supposedly pretrial release. [00:18:18] Speaker 03: That's not what happened here. [00:18:19] Speaker 03: The court didn't impose home detention pending the next hearing. [00:18:24] Speaker 04: Okay, you can. [00:18:26] Speaker 04: I'm curious that you're saying that he [00:18:29] Speaker 04: your answer to Judge Katz's last question, because the text of 3143A1 says that it applies to someone who's been found guilty of an offense and who was awaiting imposition or execution of sentence. [00:18:47] Speaker 04: And then some other language that I don't think is pertinent. [00:18:52] Speaker 04: How would that apply to somebody who is on supervised peace? [00:18:57] Speaker 03: Sure. [00:18:59] Speaker 03: rule 32 point federal rules, criminal procedure 32.1 a six. [00:19:04] Speaker 03: Um, and the notes to the committee notes to that, um, rule clarified that a judge can release or detain a person under 3143 pending further proceedings, um, supervised release proceedings. [00:19:21] Speaker 03: So that that's, um, the rule was applied. [00:19:26] Speaker 03: through 32.1 to the same, to revocation proceedings. [00:19:33] Speaker 04: Okay, well, I understand that that's what the rule says, but I don't think rules give judges authority to lock people up outside of statutory authority, but if that's your position, then we'll take that as your position. [00:19:53] Speaker 03: And if I could just briefly address the second issue. [00:19:59] Speaker 03: Yes. [00:19:59] Speaker 03: I mean, the second issue is very straightforward. [00:20:02] Speaker 03: There's a bright line rule when the oral sentence conflicts with the written one, the oral sentence controls. [00:20:09] Speaker 03: Here, the district court imposed one condition of discretionary condition of release. [00:20:15] Speaker 03: He thought it was very important that Mr. Matthews participate in drug testing. [00:20:21] Speaker 03: important he announced it at sentencing and to that is the only condition that was ordered and the court should excise the additional discretionary. [00:20:32] Speaker 05: Suppose we agree with you would we just vacate the conditions that were not orally pronounced or would we vacate the entire sentence and then let the [00:20:44] Speaker 05: district court reimpose. [00:20:46] Speaker 03: Um, the court should just vacate the conditions that weren't poorly announced. [00:20:52] Speaker 03: Um, there it's a, this is a bright line rule. [00:20:56] Speaker 05: Um, and I understand I'm, I'm positing that you win on the merits. [00:21:02] Speaker 04: I'm just focusing on remedy and I'm assuming that usv love is your authority for that. [00:21:08] Speaker 03: Yes. [00:21:09] Speaker 03: Um, and, and [00:21:11] Speaker 03: Rule 43A, the defendant has a right to be present at sentencing. [00:21:16] Speaker 03: Judgment sentencing is final. [00:21:19] Speaker 03: There's nothing that permits a court to reopen that in this circumstance, because I'm unclear as to what would permit the court to reopen that, although the court could always add or modify conditions of release when [00:21:41] Speaker 03: Mr. Matthews is on release via 3583 E2 by holding a hearing and imposing conditions of release. [00:21:49] Speaker 03: So there really is no need to send the case back for resentencing. [00:21:55] Speaker 05: If we vacate the conditions that weren't orally articulated and don't remand, you still acknowledge that the district court [00:22:11] Speaker 05: modify the conditions under E-2 to impose the standard conditions going forward? [00:22:18] Speaker 03: By following the procedures. [00:22:20] Speaker 05: Following the procedure. [00:22:21] Speaker 03: Eliminating. [00:22:22] Speaker 05: So, at a hearing. [00:22:25] Speaker 05: Yes. [00:22:25] Speaker 03: In E-2. [00:22:26] Speaker 03: In E-2 and 30, yes, 3583 E-2 and federal rule of criminal procedure. [00:22:32] Speaker 05: And could likewise consider the discretionary conditions of the mental health testing, so. [00:22:38] Speaker 03: Yes. [00:22:39] Speaker 03: Okay. [00:22:39] Speaker 03: Yes. [00:22:41] Speaker 03: And we would have, and Mr. Matthews would be present for that. [00:22:43] Speaker 03: And he would be on release. [00:22:45] Speaker 03: So it would be very pertinent to his ability to understand his conditions. [00:22:50] Speaker 03: And we would have not to object. [00:22:53] Speaker 05: So it really doesn't matter, A, whether we vacate in part or vacate entirety, or B, remand. [00:23:03] Speaker 05: We're gonna end up at the same place, which is district court. [00:23:08] Speaker 05: consider whether to reimpose the standard conditions. [00:23:11] Speaker 03: It does. [00:23:11] Speaker 03: It does matter. [00:23:13] Speaker 03: Um, it does matter because if the court, the court should vacate the conditions, they should be reconsidered. [00:23:22] Speaker 03: They were considered already. [00:23:24] Speaker 03: The court imposed just drug testing, but we wouldn't be binding the district. [00:23:29] Speaker 03: You would not be hands to impose other to modify or impose other conditions in the future. [00:23:35] Speaker 04: Judge Ralph, do you have any questions? [00:23:37] Speaker 02: I know. [00:23:38] Speaker 02: Thank you. [00:23:41] Speaker 04: We'll give you some time on rebuttal. [00:23:49] Speaker 04: You're from Council for the United States. [00:23:51] Speaker 04: Mr Leonard's. [00:23:55] Speaker 01: Thank you, Your Honor. [00:23:56] Speaker 01: Good morning and may it please the court. [00:23:57] Speaker 01: My name is Dan Lenners and I represent the United States. [00:24:01] Speaker 01: I'd like to apologize in advance if there are any technical difficulties during my argument. [00:24:06] Speaker 01: Although I represent the United States, I'm not currently in the United States, so I'm hoping all goes well. [00:24:12] Speaker 01: If I might start with Judge Wilkins' questions about preservation, we believe that the defendant preserved one and only one argument below, which is that because the district court imposed [00:24:29] Speaker 01: some term of home confinement. [00:24:32] Speaker 01: It was statutorily precluded from imposing any term of incarceration when it revoked the defendant's supervised release in April of 2022. [00:24:42] Speaker 01: All of these other arguments about whether the court could permissibly modify the conditions of the supervised release to add home detention as a condition or whether double jeopardy is implicated [00:24:57] Speaker 01: were not raised below and therefore are reviewed at best for plain error. [00:25:03] Speaker 01: And as to the defendant's argument that in November, 2021, they believed that the Judge Leon was effectively revoking supervised release and sentencing the defendant to a term of home confinement. [00:25:21] Speaker 01: And therefore that he had no power [00:25:23] Speaker 01: to then act upon the same failed drug tests that ultimately led to that decision and the subsequent revocation, that's belied by the defendant's sentencing memoranda before the April, 2022 revocation in which Matthews conceded that the district court could continue him on home [00:25:50] Speaker 01: incarceration as a condition of based on the revocation and asked merely that the court not extended beyond six months. [00:25:59] Speaker 01: So even even if Judge Leon wasn't clear which he was abundantly clear in November of 2021 that he was not revoking [00:26:07] Speaker 01: that he was punting that decision until the full scope of the violation conduct had been established, and that he was merely modifying the conditions on a temporary basis. [00:26:20] Speaker 01: That was abundantly clear at the time. [00:26:22] Speaker 04: Let me just make sure I understand kind of like all the contours of the government's position here. [00:26:32] Speaker 04: Let's suppose there had been no concession [00:26:35] Speaker 04: that any supervised release had been violated. [00:26:40] Speaker 04: Um, does the district court have authority under 35 83 to to modify conditions of release and say, um, I think that just because of how things are going here, um, I need to add a condition of incarceration. [00:27:04] Speaker 04: And so I'm going to incarcerate the defendant here and we'll come back in 30 days or something for further hearings. [00:27:14] Speaker 04: Does the district court have authority to do that? [00:27:16] Speaker 01: I don't, I don't believe so, your honor. [00:27:20] Speaker 01: And that's because of a separate statutory section. [00:27:24] Speaker 01: So one condition of probation that a district court may impose is intermittent confinement. [00:27:33] Speaker 01: That's under 3563B10. [00:27:37] Speaker 01: But in the supervised release violation statute 3583D, [00:27:46] Speaker 01: The Congress said that intermittent confinement shall be imposed only for a violation of a condition of supervised release. [00:27:57] Speaker 01: And so it's a separate reason why the answer is no, but the reason is that Congress spoke clearly in 3583D and said that intermittent confinement may only be imposed as a result of a violation. [00:28:11] Speaker 01: Congress did not include similarly clear and direct language [00:28:16] Speaker 01: in 3583 D about the home detention as a condition of probation due to a modification. [00:28:26] Speaker 01: And thus we think that that's why those two scenarios are distinguishable. [00:28:33] Speaker 04: Well, you're getting ahead of me. [00:28:35] Speaker 04: I mean, you're anticipating where I'm going with this. [00:28:40] Speaker 04: Um, but just so that we're clear, um, you agree [00:28:45] Speaker 04: the district court doesn't have authority to order incarceration, whether it's intermittent or continuous as a condition of supervised release. [00:28:58] Speaker 04: Do you agree with that? [00:28:59] Speaker 04: Yes. [00:29:01] Speaker 01: Do a modification. [00:29:03] Speaker 01: Yes, that's right. [00:29:04] Speaker 01: Do a modification. [00:29:06] Speaker 04: So then how does the district court have authority to, as a condition of supervised release, [00:29:15] Speaker 04: um, order home detention as an alternative to incarceration where the district court doesn't have the authority to order incarceration. [00:29:27] Speaker 01: I that I think depends on the language of 35 63 B 19. [00:29:35] Speaker 01: which has a separate meaning. [00:29:37] Speaker 01: That's the probation statute. [00:29:39] Speaker 01: It's not solely limited to its interaction with the supervised release statute. [00:29:46] Speaker 01: So that language has independent meaning when a judge is, for example, setting the conditions, the initial conditions of probation or revoking probation. [00:30:01] Speaker 01: In both of those instances, [00:30:03] Speaker 01: intermittent confinement under 3563B10 is something that the court has authority to impose, either as a condition of probation or due to after a revocation of probation. [00:30:17] Speaker 01: And so that language, that limiting language in 3563B19 that says that home confinement may not be imposed as an alternative to incarceration does separate work. [00:30:28] Speaker 01: It has meaning in the [00:30:32] Speaker 01: within the probation revocation context, but we don't think that it limits the court's authority to modify tough home confinement. [00:30:41] Speaker 01: But this argument was not preserved below. [00:30:45] Speaker 01: This argument is something that the defense could have and should have objected to in November of 2021 when Judge Leon said, I am temporarily [00:30:57] Speaker 01: changing the conditions of supervised release to impose home confinement while we work out all of the scope of your violations and then I sentence you. [00:31:08] Speaker 01: He could not have been clearer that that was a modification. [00:31:10] Speaker 01: The defense as you noted. [00:31:13] Speaker 05: Sorry, are you done with the thought? [00:31:17] Speaker 05: Yeah, sure. [00:31:20] Speaker 05: The same language [00:31:23] Speaker 05: only as an alternative to incarceration, so appears in 3583 E4. [00:31:30] Speaker 05: And in that context, alternative raises the question, alternative to what? [00:31:44] Speaker 05: Incarceration E4 would seem to be the alternative to [00:31:51] Speaker 05: the term of imprisonment authorized in E3, which brings this question right into the heart of the supervised release question. [00:32:08] Speaker 05: You can't just say, well, this is just about B10 versus B19 in a probation-only world. [00:32:18] Speaker 01: Yes, Your Honor, for purposes of the supervised relief revocation statute, we understand the language in E4 to implicate the statutory cap set forth in E3. [00:32:30] Speaker 01: Meaning if the cap is two years of incarceration, then home confinement plus incarceration cannot exceed two years. [00:32:40] Speaker 01: That's how every court, as I understand it, to have looked at this question [00:32:44] Speaker 01: understands it. [00:32:46] Speaker 01: And it makes sense. [00:32:48] Speaker 01: The supervised release is a period in which the court supervises the defendant during his transition to society. [00:32:58] Speaker 01: Congress has made clear that it wants courts to have broad discretion in fashioning the conditions of supervised release, not to limit them. [00:33:07] Speaker 01: And it works as a plain language understanding because alternative [00:33:13] Speaker 01: in the defendant's view means you either have four apples or four oranges, because apples are an alternative to oranges. [00:33:20] Speaker 01: But they're still an alternative if you have two oranges and two apples. [00:33:25] Speaker 01: Apples in that context are still an alternative. [00:33:27] Speaker 05: And that's what we do. [00:33:30] Speaker 05: That all makes sense to me. [00:33:33] Speaker 05: And that seems like a perfectly good response to [00:33:41] Speaker 05: broadest argument on the other side, which is you. [00:33:44] Speaker 05: If you do any of one, you can't do the other. [00:33:49] Speaker 05: But what about? [00:33:50] Speaker 05: I think this is Judge Wilkins point on the timing question, which is only as an alternative to incarceration. [00:34:03] Speaker 05: Seems to presuppose that. [00:34:07] Speaker 05: Incarceration. [00:34:09] Speaker 05: Is is an option. [00:34:12] Speaker 05: Right. [00:34:13] Speaker 05: And that wasn't true at the time of the first hearing when Judge Leon imposed the home detention, right? [00:34:23] Speaker 05: Because he hadn't adjudicated the violation. [00:34:28] Speaker 05: He was reserving all of that. [00:34:33] Speaker 01: It's true that he was reserving it. [00:34:34] Speaker 01: It was certainly on the table, given the defendant's concession. [00:34:38] Speaker 01: The defendant had conceded a violation that put [00:34:41] Speaker 01: revocation and incarceration on the table. [00:34:45] Speaker 01: But this is why I think the interaction between E2 and E3 is important and the waiver issue is important or the plain error issue, which is that alternative to incarceration in E4, that goes to whether that affects the ability to modify in E2, which then takes you to 3563 B19. [00:35:09] Speaker 01: and that the defendant did not preserve. [00:35:12] Speaker 01: They did not preserve the argument in November of 2021 that you may only put me on a home confinement now if you are in fact revoking. [00:35:22] Speaker 05: Suppose I think it's preserved, what's your answer on the merits to this narrow point that of course you can mix and match, but you can only do it after you've adjudicated [00:35:38] Speaker 05: the violation that establishes, um, incarceration as one possible. [00:35:48] Speaker 01: I think the answer to that, Your Honor, is that this alternative to incarceration does not limit the court's power under e two to modify the conditions of supervised release that the e two has no limitation [00:36:05] Speaker 01: It has no required finding of probable cause. [00:36:09] Speaker 01: It doesn't have to find a supervised release violation in order to modify. [00:36:13] Speaker 01: It simply needs to take into account the 3553A factors. [00:36:18] Speaker 01: And that because home incarceration is one of the permissible conditions of [00:36:25] Speaker 01: probation and supervised release under 3563 that the court nonetheless has that power. [00:36:33] Speaker 02: Under 3563, though, there's also the condition of it being only as an alternative to incarceration. [00:36:44] Speaker 01: And yes, your honor. [00:36:45] Speaker 01: And I think that my understanding of that language is that it modifies the court's ability in the probation context [00:36:54] Speaker 01: to impose home confinement versus intermittent incarceration, but doesn't do separate work in the supervised release context. [00:37:03] Speaker 04: Congress added that language. [00:37:05] Speaker 04: It added it in three separate places. [00:37:07] Speaker 04: It added the identical language for probation, supervised release and role. [00:37:15] Speaker 04: So shouldn't it mean the same thing in all three places? [00:37:20] Speaker 04: Why wouldn't the language mean the same thing and Congress have the same intent for it to have the same effect in all three contexts and do the same work in context? [00:37:33] Speaker 01: I have two answers to that, Your Honor. [00:37:35] Speaker 01: One is it could, and nonetheless, our interpretation could be correct. [00:37:40] Speaker 01: In all three contexts, it could implicate the statutory caps on the amount of incarceration a court may impose due to a violation. [00:37:49] Speaker 01: There are statutory caps in the supervised release context. [00:37:53] Speaker 01: statutory caps in the probation context, and I believe in the parole context, although I'm less familiar with parole. [00:38:02] Speaker 05: Including one in B10, right? [00:38:06] Speaker 01: Yes, B10 itself has its own cap, which is no more than a year or the maximum term of incarceration or something. [00:38:16] Speaker 01: I don't have the exact language in front of me, but B10 itself has a statutory cap [00:38:21] Speaker 01: on the amount of intermittent confinement a court may impose. [00:38:29] Speaker 01: And so in that respect, they would all have the same meaning. [00:38:32] Speaker 01: And that's how Judge Owens understood it in her concurrence in Paladar, the Fifth Circuit case. [00:38:40] Speaker 04: How would it work in the parole context? [00:38:46] Speaker 01: I don't do much parole work, your honor. [00:38:49] Speaker 01: And so I don't have an answer to that. [00:38:50] Speaker 01: I'm sorry. [00:38:51] Speaker 01: I know there's some, you know, the parole would be revoked and then a defendant would be re-paroled and there would be credit for time served, but not for street time. [00:39:03] Speaker 01: And I don't know exactly how the statutory caps would work in the parole context. [00:39:09] Speaker 05: Is there a statutory cap? [00:39:11] Speaker 05: I mean, your theory sort of hangs together if [00:39:15] Speaker 05: Within probation, the alternative to incarceration is the intermittent custody in B10, which has its own cap. [00:39:26] Speaker 05: And within supervised release, the alternative to incarceration referenced in E4 is the incarceration authorized in E3, which has its own cap. [00:39:36] Speaker 05: I don't know what the analog in parole is. [00:39:40] Speaker 05: Yes, your honor. [00:39:42] Speaker 05: But that's sort of that's where you're that's where you're going with it. [00:39:47] Speaker 01: That's where I'm going with it. [00:39:49] Speaker 01: I don't have the answer for how it works in the full context. [00:39:56] Speaker 04: All right. [00:39:56] Speaker 04: Any other questions, Judge Rell? [00:39:59] Speaker 02: Yes, Mr. Leonard's on the on the second point. [00:40:04] Speaker 02: If we were to agree with the defendant about the oral pronouncement of the conditions, do you do you agree that the remedy is the same whether we vacate and then remand for resentencing or we allow the district court to impose conditions of supervised release in a subsequent hearing? [00:40:28] Speaker 01: I would agree. [00:40:29] Speaker 01: I would urge the court not to agree with the defendant. [00:40:32] Speaker 01: We cited a couple of cases from the Ninth and Second Circuits that find at least the standard conditions to be implicit when the court imposes supervised release. [00:40:42] Speaker 01: But if the court disagrees with me, then we would urge the court to follow the approach taken by the Fourth Circuit and the Seventh Circuit in this context, which is to remand for resentencing [00:40:56] Speaker 01: on the conditions of supervised release. [00:41:00] Speaker 01: I think on the theory that there is ambiguity between the courts placing the defendant on supervised release, the fact that the sentencing guidelines have these standard conditions that seem to be implicit, but the fact that the court didn't orally pronounce it. [00:41:18] Speaker 01: As I understand those courts, they said there's an ambiguity there. [00:41:21] Speaker 01: And this court in love says when there's an ambiguity, [00:41:26] Speaker 01: remand for that to be clarified. [00:41:29] Speaker 01: The defense is, I believe, correct that if this court took the approach that the Fifth Circuit takes, albeit with some question in their en banc decision applying the oral pronouncement rule to the supervised release context, they dropped a footnote questioning the wisdom of this rule. [00:41:49] Speaker 01: But if the court were to simply vacate all of the standard conditions [00:41:55] Speaker 01: and all of the special conditions, I think what would happen is the government would have to move for modification of the conditions of supervised release and ask the court to reimpose both the standard and the special conditions. [00:42:14] Speaker 01: I'm not aware of any legal [00:42:18] Speaker 01: impediment to the court doing so, it would simply mean that the defendant would be on supervised release with no conditions except for the mandatory conditions until that issue was resolved. [00:42:30] Speaker 05: Sorry, you're, you're asking us to vacate the entire sentence and remand for re-sentencing? [00:42:41] Speaker 01: No, Your Honor, I'm sorry. [00:42:42] Speaker 01: I believe Judge Rao asked if, if the court agrees that [00:42:48] Speaker 05: There are no conditions. [00:42:50] Speaker 05: Assume we agree with the fifth and fourth circuits on this. [00:43:00] Speaker 05: The conditions in the written sentence that weren't orally reversed are currently invalid. [00:43:08] Speaker 05: What do we do? [00:43:10] Speaker 01: Remand for re-sentencing as to the conditions of supervisor. [00:43:14] Speaker 01: Without faketure? [00:43:22] Speaker 01: Yes, without vacatur. [00:43:24] Speaker 05: That's a little odd. [00:43:25] Speaker 05: The consequence of our ruling that the written sentence has a bunch of conditions that are valid. [00:43:36] Speaker 05: And I mean, we have a remand without vacatur doctrine in administrative law. [00:43:43] Speaker 05: I don't ever applied it to a criminal sentence that we found invalid in part. [00:43:52] Speaker 02: Are you aware of cases in which we have remanded without vacator after finding that a sentence was unlawful? [00:44:01] Speaker 01: I am not, Your Honor, and I admit that I'm on uncertain ground here. [00:44:05] Speaker 01: We would urge the court to follow the Seventh and Fourth Circuit, which mandates a new proceeding for the court to re-sentence, rather than the Fifth Circuit, which requires the government to move for a modification. [00:44:20] Speaker 01: But I think you're probably right that under either scenario, vacating the written judgment, it would be appropriate. [00:44:30] Speaker 05: Why wouldn't we just vacate the offending conditions? [00:44:35] Speaker 05: And I would think the more technically correct remedy and the one that's more in the government's interest in most cases is we tailor the [00:44:48] Speaker 05: remedy to the violation only give as applied relief. [00:44:53] Speaker 05: The judgment is fine. [00:44:55] Speaker 05: In part and in part, we only knock out the portions that are invalid. [00:45:03] Speaker 01: Yes, your honor. [00:45:04] Speaker 01: I'm sorry. [00:45:04] Speaker 01: I was speaking quickly in shorthand. [00:45:06] Speaker 01: That's what I mean here. [00:45:07] Speaker 01: That's virtually every condition. [00:45:09] Speaker 01: The only conditions that were if the court mandatory ones and the drug testing, the drug testing [00:45:18] Speaker 01: A condition that the court orally imposed in love this court found that in the supervised release conditions context, the court can use the written judgment to clarify. [00:45:30] Speaker 01: conditions such as this, and we think that when the court said I impose drug testing. [00:45:37] Speaker 01: and then put more like specific conditions on it in the written judgment that that's permissible under love. [00:45:46] Speaker 01: And so the court would be vacating everything but the mandatory statutorily required conditions. [00:45:51] Speaker 05: And the term of imprisonment. [00:45:54] Speaker 01: And the term of imprisonment. [00:45:55] Speaker 05: Assuming we agree with, assuming we're with you on the first point. [00:45:59] Speaker 05: Yes, Your Honor. [00:46:02] Speaker 05: And then would we remand? [00:46:04] Speaker 05: Would we remand? [00:46:05] Speaker 05: Does it matter whether we remand for the district court to pick up the ball in the context of this case or whether we set aside the conditions, we're done with everything, but of course that doesn't prevent a future modification that just starts on its own. [00:46:30] Speaker 01: I think this is where the government would request a remand so that there is a proceeding in place for the district court to consider the imposition of new conditions rather than it having to be through a modification. [00:46:45] Speaker ?: Okay. [00:46:50] Speaker 04: All right, Judge Rowan. [00:46:51] Speaker 04: Any other questions? [00:46:53] Speaker 02: Thank you. [00:46:56] Speaker 04: All right, thank you, Mr. Linertz. [00:47:02] Speaker 04: Getzel, we will give you two minutes in rebuttal. [00:47:05] Speaker 03: Thank you. [00:47:08] Speaker 03: As an initial point, plain error, if it applies here, is easily met. [00:47:14] Speaker 03: An unlawful sentence is always plain error. [00:47:18] Speaker 03: And we're arguing that the sentence is unlawful. [00:47:21] Speaker 03: The second point I want to make is that the timing in this case [00:47:25] Speaker 03: It matters and it's crucial. [00:47:27] Speaker 03: So even in the cases that say you can combine home confinement and imprisonment in a combined sentence, the judge sentences and says it's sentencing to a term of imprisonment, but it's exercising leniency by making part of it home detention. [00:47:47] Speaker 03: That is not what happened here. [00:47:49] Speaker 03: So the timing of, [00:47:52] Speaker 03: And in all of those other cases, it's imprisonment followed by home detention. [00:47:57] Speaker 03: That's not what happened here. [00:47:58] Speaker 03: It was home detention, a sanction, and then I'm putting you in prison for the same exact thing. [00:48:05] Speaker 03: And that is [00:48:07] Speaker 04: violates due process, it violates 3583, and it violates... But the order that we have in front of us is not the order that placed them in home detention, it's the order that placed them in incarceration, right? [00:48:22] Speaker 03: Correct, Your Honor. [00:48:23] Speaker 03: That's why the incarceration was unlawful, because home detention had already been imposed for the same thing. [00:48:30] Speaker 03: And the last point I want to make about the supervised release conditions is that it's terribly inefficient to send a case back when the conditions can just be vacated. [00:48:41] Speaker 03: Courts in the future will announce the conditions at sentencing. [00:48:50] Speaker 03: Otherwise, there are countless cases getting sent back when conditions weren't announced. [00:48:57] Speaker 03: And the government just wants it sent back so they don't have to do anything. [00:49:02] Speaker 03: And that's unfair to Mr. Matthews. [00:49:06] Speaker 03: It basically means it gets remanded for him to get a harsher sentence and more conditions that he currently doesn't have that the district court did not deem important to impose. [00:49:18] Speaker 03: And so we would ask the court to vacate. [00:49:20] Speaker 03: In the alternative, we would ask for a full remand on the entire budget. [00:49:26] Speaker 03: Thank you. [00:49:27] Speaker 04: Thank you. [00:49:27] Speaker 04: We will take the case under advisement.