[00:00:00] Speaker 05: Case number 21-3058, United States of America versus Keith B. McGill at balance. [00:00:07] Speaker 05: Ms. [00:00:08] Speaker 05: Hughes for the balance, Ms. [00:00:09] Speaker 05: Kelly for the appellee. [00:00:11] Speaker 05: Thank you. [00:00:12] Speaker 05: Before we start, I would just like to take a moment to remember Ken Starr, who passed away yesterday. [00:00:18] Speaker 05: He was a former judge on this circuit from 1983 to 1989. [00:00:22] Speaker 05: He was a beloved colleague and friend to many in this building. [00:00:27] Speaker 05: And our thoughts are with his wife, Alice, [00:00:30] Speaker 05: and with his family. [00:00:36] Speaker 03: Thank you. [00:00:44] Speaker 04: Good morning. [00:00:52] Speaker 04: When the court sentences a defendant, [00:01:00] Speaker 04: The court's supposed to impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in 355A2. [00:01:14] Speaker 04: That is just punishment, deterrence, protection of the public, and rehabilitation. [00:01:29] Speaker 04: Mr. McGill contends the sentence he was given was far greater than necessary to achieve those purposes. [00:01:42] Speaker 04: There's two concepts that keep appearing throughout Mr. McGill's case. [00:01:52] Speaker 04: One is discretion. [00:01:54] Speaker 04: The other is rehabilitation. [00:02:02] Speaker 04: And they're both, each is problematic in its own way. [00:02:09] Speaker 04: At sentencing, the district court chose to give very little weight to Mr. McGill's rather extraordinary record of rehabilitation. [00:02:33] Speaker 04: And when I say rehabilitation has a problem, this is actually what I'm thinking of. [00:02:41] Speaker 04: Mr. McGill, during his 20 years of incarceration, has had almost no disciplinary actions at all. [00:02:53] Speaker 04: No physical involvement, fighting, nothing like that. [00:02:59] Speaker 04: All he's done is improve himself. [00:03:01] Speaker 04: In fact, for the facility where he is, he was offered a job to work in the law library to help other inmates with their legal research. [00:03:27] Speaker 04: He's also enrolled in an online university in California. [00:03:33] Speaker 04: And this is all considered under rehabilitation. [00:03:39] Speaker 04: But I would just like to make one point. [00:03:43] Speaker 04: I'm not entirely sure this is rehabilitation. [00:03:49] Speaker 04: Rehabilitation is when there was something wrong and you took steps to improve it. [00:03:59] Speaker 04: I would argue that Mr. McGill's [00:04:03] Speaker 04: Conduct as shown by all the records during his incarceration are not rehabilitation. [00:04:19] Speaker 04: They simply show the true nature of the man. [00:04:21] Speaker 04: They were there already. [00:04:23] Speaker 04: And he continues to behave in that way. [00:04:32] Speaker 05: One problem, Ms. [00:04:34] Speaker 05: Hughes, even accepting that account, can you maybe focus on where the district court abused its discretion in its decision below? [00:04:45] Speaker 05: Yes. [00:04:52] Speaker 04: District court abused its discretion by not giving sufficient weight [00:05:01] Speaker 04: to Mr. McGill's rehabilitation. [00:05:05] Speaker 04: And moreover, the district court during sentencing said he was relying upon a denial memo he had written when he denied Mr. McGill's motion for compassionate release. [00:05:22] Speaker 04: And throughout, the government basically [00:05:26] Speaker 04: took long passages from the denial memo and incorporated it into its sentencing memos. [00:05:35] Speaker 04: Here's the problem. [00:05:37] Speaker 04: Yes, you look at the same factors. [00:05:42] Speaker 04: However, in a consideration of a motion for compassionate release, the court is assessing whether or not the defendant [00:05:57] Speaker 04: to be released immediately, right then, that day. [00:06:03] Speaker 04: And in Mr. McGill's case, that would have meant a 19-year sentence. [00:06:09] Speaker 04: And the court said that's just two. [00:06:11] Speaker 04: That's not enough. [00:06:17] Speaker 04: When sentencing, at the resentencing, there was a whole array of options as far as sentence. [00:06:26] Speaker 04: It wasn't just right now in 19 years or back you go. [00:06:31] Speaker 04: It was an opportunity to correct what we felt were errors in the original sentencing. [00:06:45] Speaker 04: And so in doing so, the analysis of the 355 3A factors is done for a different purpose. [00:06:57] Speaker 04: Most motions for compassionate release, there's really a focus on is someone a danger to the community because they'd be letting something back in. [00:07:11] Speaker 04: The other factors aren't stressed. [00:07:15] Speaker 04: And in Mr. McGill's case, the court did not [00:07:25] Speaker 04: He said he did not reassess the factors. [00:07:28] Speaker 04: He simply relied upon them as he had looked at them for compassionate relief. [00:07:35] Speaker 04: We'd say that is an abuse of discretion. [00:07:38] Speaker 04: He should have done it again. [00:07:39] Speaker 01: So what exactly is his sentence at the moment? [00:07:46] Speaker 04: At the moment, two life sentences. [00:07:51] Speaker 04: One counts, quote, [00:07:55] Speaker 04: Life on the drug conspiracy, life on the RICO conspiracy, 120 months on the violent act in aid of RICO, and 240 months on witness tampering, and then the sixth count, which is not [00:08:21] Speaker 04: Concurrent is consecutive is the 120 months. [00:08:25] Speaker 01: Is he subject to the parole, the parole commission? [00:08:33] Speaker 04: I'm sorry. [00:08:34] Speaker 04: I don't, I don't, I don't know. [00:08:36] Speaker 01: You don't know what. [00:08:38] Speaker 01: Well, when, when the district of Columbia had indeterminate sentences and in 1999, according to the government anyway, they had an indeterminate sentencing scheme. [00:08:51] Speaker 01: before the District of Columbia adopted the guidelines. [00:08:56] Speaker 01: And so his sentence on count three was what, 30 years to life, which implies at least that somebody's got to decide where in between 30 years to life he falls. [00:09:12] Speaker 01: And I have assumed, although I don't see it in the papers, [00:09:16] Speaker 01: that he's subject to the parole commission and making that determination. [00:09:20] Speaker 01: And I'm wondering whether he has ever sought parole. [00:09:26] Speaker 04: Well, actually, we did. [00:09:28] Speaker 04: We're asking this court to not this court parole commission. [00:09:34] Speaker 04: No, because it was never supposed to be 30 years to life anyway. [00:09:38] Speaker 04: That was incorrect. [00:09:43] Speaker 01: What about on the other sentences? [00:09:45] Speaker 01: Has he ever sought parole in them? [00:09:47] Speaker 04: No, he's not. [00:09:48] Speaker 04: He's not subject to parole commission. [00:09:59] Speaker 04: Mr. McGill would argue that the harshness of the sentences, basically he traded in four light sentences for two light sentences, which is a small consolation to him. [00:10:17] Speaker 04: Notwithstanding that Mr. McGill went through the same procedures, looking at the guidelines, and felt that with an offense level of 34 and criminal history of five, it would be 235 to 293 months and requested at the lower end [00:10:44] Speaker 04: 240 months, which would be 20 years. [00:10:47] Speaker 04: That's a substantial sentence. [00:10:50] Speaker 04: The government did the same calculations and came up with a level 36 criminal history five, which would be a sentence of 292 to 365 months and requested a sentence on the high end, which was 34 years. [00:11:11] Speaker 04: So not even the government was asking for a life sentence. [00:11:15] Speaker 05: Um, Miss Hughes, I see your time is up. [00:11:18] Speaker 05: Um, and if my colleagues have any questions, we'll give you some time for the bottom. [00:11:47] Speaker 03: Morning, Your Honors. [00:11:48] Speaker 02: May it please the Court? [00:11:49] Speaker 02: Katherine Kelly on behalf of the United States. [00:11:51] Speaker 02: Your Honors, in this case, the Court did [00:11:54] Speaker 02: properly and reasonably sentenced Mr. McGill as it did in August of 2021. [00:12:02] Speaker 02: As Mr. McGill's counsel has just said, the court did look at things such as the protection of the public, the need for looking at his prior criminal history, looking at the crimes he committed, looking at the nature of Mr. McGill's history and characteristics, [00:12:24] Speaker 02: and as well, weighed Mr. McGill's rehabilitation in prison. [00:12:30] Speaker 02: In fact, at the sentencing hearing, Mr. McGill spoke, and thereafter, in explaining its sentence, the court mentioned that it was agreeing that Mr. McGill had properly mentioned his rehabilitation to the court, that it was correct for him to bring it up. [00:12:44] Speaker 02: The court's ultimate determination was that that rehabilitation, while the court considered it was not determinative, did not give a determinative weight, which the court was permitted to do in reasonably applying a sentence. [00:13:01] Speaker 02: Court applied an in-guidelines sentence, which is given a rebuttable presumption of reasonableness, where it validly explained its 3553A factor rationale in the decision it made in the compassionate release motion, but made clear at the resentencing hearing that it was [00:13:23] Speaker 02: reevaluating that decision as of the date of sentencing and that it acknowledged that it needed to look at that decision as of the sentencing date. [00:13:34] Speaker 02: And in fact, it agreed with its rationale in the compassionate release decision as of the date of sentencing. [00:13:41] Speaker 00: Ms. [00:13:41] Speaker 00: Kelly. [00:13:42] Speaker 02: Yes, Your Honor. [00:13:42] Speaker 00: I have a question about your suggested remand on Cal 3. [00:13:50] Speaker 00: I read REN to possibly [00:13:53] Speaker 00: uh, say we have the authority to do that, even though a three sentence was affirmed the appeal that was here last time. [00:14:06] Speaker 00: Yes. [00:14:06] Speaker 00: My first question is, where do you think ran got that authority? [00:14:14] Speaker 00: It seems like well, 52 merely defines plane air rather than instructs courts on when to on when it applies. [00:14:24] Speaker 00: So obviously we're bound by Wren, but why was it right? [00:14:31] Speaker 02: They cited, as your honor pointed out, rule 52. [00:14:33] Speaker 02: But I believe that the court should have authority as just a prudential matter if it sees an illegal sentence that was outside the bounds of the applicable statute at the time of the offense in this case. [00:14:47] Speaker 00: The prudential concerns don't often control jurisdiction. [00:14:53] Speaker 00: And if we affirmed the first sentence, we did not remand it to the district court. [00:15:00] Speaker 00: How was it an open question for the district court? [00:15:05] Speaker 00: And if it wasn't an open question for the district court, how could we find air with the district court's failure to do what it didn't have the authority to do? [00:15:15] Speaker 02: I believe at the re-sentencing, the district court indicated that it did not believe under rule 52 that it could touch something that this court had not addressed before. [00:15:26] Speaker 02: My recollection of the direct appeal decision is that nobody raised an issue as to count the re-sentence. [00:15:33] Speaker 02: So it wasn't a matter of this court deciding in the original direct appeal that. [00:15:39] Speaker 00: I think that means we affirmed it, though. [00:15:41] Speaker 02: I'm sorry. [00:15:42] Speaker 00: I think that means we affirmed it if it wasn't [00:15:45] Speaker 00: the sentence wasn't challenged on appeal. [00:15:47] Speaker 00: And then when the appeals over, I think it was affirmed. [00:15:51] Speaker 00: But let me ask my second question, which I think is maybe what I'm struggling with even more, which is let's say plane air test applies. [00:16:05] Speaker 00: We have to find the kind of, you know, violation of substantial justice that it would that it would take in order to [00:16:15] Speaker 00: find plain air and remand for a re-sentence on count three. [00:16:19] Speaker 00: Our cases talk about there being a violation of substantial justice when it means a defendant will be in prison longer than he would otherwise be. [00:16:33] Speaker 00: And we have the in real sealed case from I think 2009 that talks about that. [00:16:39] Speaker 00: Here, it's a little different because [00:16:43] Speaker 00: Even if we remand on count three or the sentence to be 15 years to life, as you suggest, he still has the other life sentences. [00:16:53] Speaker 00: So. [00:16:55] Speaker 00: Since he's going to, if we affirm on the other counts. [00:17:00] Speaker 00: And that would mean he'll be serving life sentences, regardless of whether we remand on number three count three. [00:17:07] Speaker 00: So why is why does substantial justice require us to remand count [00:17:15] Speaker 02: Because each count is individually sentenced. [00:17:19] Speaker 02: And even though counts one and two will provide a life sentence in this case, so practically is not getting out. [00:17:27] Speaker 02: And he already hasn't gotten out in 15 years, frankly. [00:17:31] Speaker 02: It's important that the sentences individually be legally accurate. [00:17:36] Speaker 00: And our precedents say it's important that they be accurate so that [00:17:40] Speaker 00: I know that even if the defendant spends a day longer in prison than he should, here, though, why is it important? [00:17:50] Speaker 02: It may be that the fourth prong of a line of the fairness and integrity of the judicial proceedings would probably be the most at point on that. [00:18:02] Speaker 02: And I honestly don't believe that that, of course, doesn't require the court to do a full resentencing or anything else. [00:18:08] Speaker 02: It's just a matter of correcting the low end of that count three sentence. [00:18:16] Speaker 02: So it would certainly indicate that, just to show the fairness and integrity of the court, that technically a legal sentence not remain on his judgment. [00:18:28] Speaker 02: If the court has no other questions. [00:18:31] Speaker 02: I'm sorry. [00:18:31] Speaker 05: Do you think that the Supreme Court's decision in Rosales Marillis requires us to find plain error here? [00:18:40] Speaker 05: Because if a mis-sentencing under the guidelines, which are discretionary, is usually plain error, then here we have, you know, arguably a statutory error of sentencing, which is more serious perhaps than a guidelines error. [00:18:58] Speaker 02: And this too is a DC code offense as well, because it's assault with intent to murder. [00:19:03] Speaker 02: So it's a little different than a guidelines sentence. [00:19:08] Speaker 05: But wouldn't the reasoning of that case apply even with more force to a statutory violation? [00:19:14] Speaker 02: I don't know, Your Honor. [00:19:16] Speaker 02: I'm not completely familiar with the cases I stand here. [00:19:24] Speaker 02: The court has no further questions. [00:19:26] Speaker 02: We respectfully submit that the district court did not abuse this discretion in resentencing Mr. McGill, and we respectfully request that the court affirm the district court's judgment. [00:19:36] Speaker 02: Thank you. [00:19:42] Speaker 05: Ms. [00:19:42] Speaker 05: Hughes will give you two minutes for rebuttal. [00:19:51] Speaker 04: As to count three, [00:19:57] Speaker 04: 15 to life would be indeterminate. [00:20:00] Speaker 04: However, I think it would still be indeterminate. [00:20:04] Speaker 04: But the actual sentence was supposed to be 10 to 30, no more than 30 years. [00:20:14] Speaker 04: And that would have been subject to parole. [00:20:28] Speaker 04: court did reexamine 355 3A factors for Mr. McGill's resentencing. [00:20:40] Speaker 04: It did not. [00:20:43] Speaker 04: There's no evidence of it on the record. [00:20:47] Speaker 04: Again, he simply relied upon what he had done previously. [00:21:10] Speaker 04: Did the court want us to address in any way the motion for reassignment? [00:21:17] Speaker 04: Nothing further. [00:21:17] Speaker 04: Pardon? [00:21:20] Speaker 05: Do you have anything further? [00:21:21] Speaker 05: No. [00:21:27] Speaker 05: Thank you. [00:21:28] Speaker 05: Ms. [00:21:28] Speaker 05: Hughes, you were appointed by the court to represent the appellant in this case, and the court thanks you for your assistance. [00:21:37] Speaker 05: Thank you. [00:21:37] Speaker 05: Case is submitted.