[00:00:00] Speaker 03: Case number 21-3074, United States of America versus Louis A. Wilson, also known as Spatz Appellant. [00:00:08] Speaker 03: Mr. Shelley for the appellant, Mr. Sebel for the appellant. [00:00:15] Speaker 02: Good morning. [00:00:16] Speaker 02: Good morning. [00:00:16] Speaker 02: And may it please the court. [00:00:19] Speaker 02: I'm Anthony Shelley. [00:00:20] Speaker 02: Here is the court appointed provono counsel for Helen Lewis Wilson. [00:00:24] Speaker 02: Welcome. [00:00:25] Speaker 02: And I have reserved two minutes of my time for rebuttal. [00:00:28] Speaker 02: In his most recent briefing order, the court asked parties to focus on first a procedural issue about exhaustion, and then a set of substantive questions regarding whether and to what extent a change in sentencing law can be considered in the context of a motion for release under Section 3582C1A. [00:00:49] Speaker 02: On this procedural issue first, the court precisely asked whether the exhaustion requirement in the statute is jurisdictional. [00:00:57] Speaker 02: All parties agree that it is not. [00:00:59] Speaker 02: And unless the court wishes to hear further about that argument on the non-jurisdictional nature, I'd like to turn to the related matter raised here by the government of whether the exhaustion rule, even as a non-jurisdictional rule, is so mandatory that it forecloses the court from getting to the substantive issues the court has asked the parties to brief. [00:01:22] Speaker 02: The courts would be foreclosed [00:01:24] Speaker 02: from hearing that substantive issue only if Section 3582C1A mandated issue exhaustion. [00:01:33] Speaker 02: For Wilson plainly did file an exhaustion or an administrative request for release with his warden. [00:01:38] Speaker 02: He just did not present one of the particular issues, a change in sentencing law to the ward. [00:01:44] Speaker 02: As we noted in our brief, the statute says nothing about issue exhaustion, but indicates only that he make a request [00:01:53] Speaker 02: to the warden for release, which he did. [00:01:55] Speaker 02: And the text should end the matter. [00:01:59] Speaker 02: Congress knew how to state things with more detail because it did in other parts of the exhaustion sentence by saying the other alternative requires fully appealing through the administrative process. [00:02:12] Speaker 02: This one says, there's only a need to file a request and wait 30 days. [00:02:16] Speaker 02: It doesn't say, for instance, that [00:02:18] Speaker 02: The request needs to be put in detail. [00:02:20] Speaker 02: The request needs to raise certain issues. [00:02:22] Speaker 02: It just simply says you need to file a request. [00:02:24] Speaker 02: And that makes sense because Congress was somewhat upset with the Bureau of Prisons in the first place for not properly administering the statute. [00:02:35] Speaker 02: And therefore, I think gave gave prisoners a relatively easy route to present a request to the to the warden and then if it was unsuccessful, wait 30 days from when the request was filed and go immediately to court. [00:02:48] Speaker 04: But generally, when people are filing claims, [00:02:52] Speaker 04: The person on the other side of the claim, whether it be complain or claim, has the opportunity to respond. [00:02:58] Speaker 04: And so what about that opportunity of kind of hiding the ball or sandbagging, you know, later on, not to suggest that that happened here. [00:03:05] Speaker 04: But the whole point is to put the person on notice. [00:03:07] Speaker 02: But the government from the government from the beginning has been responsible for investigating [00:03:14] Speaker 02: before investigating requests for compassionate release. [00:03:18] Speaker 02: When the statute was originally enacted in 1984, it had no exhaustion requirement at all. [00:03:24] Speaker 02: The government, on its own motion, had to investigate a prisoner and bring something to court. [00:03:30] Speaker 02: So all the exhaustion requirement here is doing is saying, Bureau of Prisons warden, I'm here and I shouldn't be here. [00:03:38] Speaker 02: You need to investigate this and I need to be released early. [00:03:42] Speaker 02: And in fact, the Bureau of Prisons has a full list of considerations that the agency should go through whenever it receives a request, irrespective of what's raised by the particular prisoner. [00:03:56] Speaker 04: And do you believe that the government waived that anyway? [00:03:59] Speaker 02: I do believe the government waived it because the government insisted on getting to the issue in its briefing in the district court. [00:04:08] Speaker 02: I think it wanted the dismissal of prejudice of Mr. Wilson's claim for a compassionate release. [00:04:15] Speaker 02: And in addition, I think they wanted the district court to rule on the weighty legal issue of whether a change in sentencing law can be considered in a compassionate release case. [00:04:25] Speaker 02: And so it charged on to get to those issues. [00:04:28] Speaker 02: But in arguing, it only raised the legal question of Mr. Wilson, whether the statute forecloses consideration altogether of a change in sentence. [00:04:44] Speaker 02: The government really doesn't have any answer to our arguments based on the statute or the regulations. [00:04:51] Speaker 02: or even the sims case or the car case, except to say, well, the seventh circuit already held on this that there is issue exhaustion in the Williams case. [00:05:01] Speaker 02: But indeed, several district courts have since then rejected the seventh circuit case. [00:05:07] Speaker 02: And the Seventh Circuit relied on some regulations from the PLRA context, Prison Legislation Reform Act context, that actually do say specifically you must raise all issues. [00:05:19] Speaker 02: But in this context, there is no requirements in the regulations or the statute that even mentions the word issue. [00:05:26] Speaker 02: So we would, our belief is that Mr. Wilson needed simply to file a request on the forms provided by the BOP, which he did, [00:05:33] Speaker 02: And he checked the boxes on there that he was allowed to check. [00:05:37] Speaker 02: There was no box on there to say change in sentencing law. [00:05:40] Speaker 02: And the form says can't alter it or it won't be accepted. [00:05:45] Speaker 02: He did all that was necessary for him to do. [00:05:47] Speaker 04: And the court did consider the other issues? [00:05:49] Speaker 02: Absolutely, it did. [00:05:50] Speaker 02: The court didn't wait any exhaustion argument against him. [00:05:56] Speaker 02: On the substantive question, the court asked whether a change in sentencing law can constitute an extraordinary and compelling reason for release. [00:06:04] Speaker 02: And the court seemingly asked this question because the government's sole argument below and here has been that as a matter of law, district court is foreclosed by the statute from considering a change in sentencing law. [00:06:16] Speaker 02: This court has no precedent on that topic and so somewhat writes on a clean slate in a sense from this circuit's perspective, but notably there's a deep split. [00:06:26] Speaker 02: in the circuits on this issue elsewhere. [00:06:29] Speaker 02: But the most compelling case is the Chen case from the Ninth Circuit that was issued just two weeks ago and has been brought to the court's attention this weekend, a 28-J letter filed by the government and then a response that we filed on Tuesday afternoon. [00:06:47] Speaker 02: The Ninth Circuit had no precedent on this topic, reviewed what all the other circuits had on the topic, and [00:06:55] Speaker 02: had the benefits of the Supreme Court's Concepcion decision. [00:07:00] Speaker 02: The other circuits didn't have Concepcion, and the Ninth Circuit said, based on looking at all the other circuits, [00:07:09] Speaker 02: and based on conceptio, the text controls and the text does not prohibit raising a change in sentencing law as an extraordinary compelling reason, and that should be the end of it. [00:07:21] Speaker 00: Well, what question though, counsel, isn't it, is what does that phrase mean? [00:07:29] Speaker 00: And you're arguing that it means that if you're [00:07:36] Speaker 00: if Mr. Wilson were to be sentenced today, the law would be different. [00:07:41] Speaker 00: But the law hasn't changed to the extent that that change has not been made retroactive. [00:07:48] Speaker 00: So don't you have a threshold question here as to whether he has even suggested that there is a change in sentencing that the district court has to consider? [00:08:03] Speaker 02: He has raised a question, Mr. Wilson, in his reply brief below at page 17, that's document 393, in his first appellate memo, the one before I became counsel at page 10, and then the government's first memo at note three, filed March 3rd, all identify the change in sentencing law that [00:08:31] Speaker 02: that Mr. Wilson believes changes the circumstances. [00:08:34] Speaker 00: I understand that counsel. [00:08:36] Speaker 00: What I'm asking you is what should this court hold? [00:08:41] Speaker 02: This court should hold that any argument made by a prisoner can constitute extraordinary and compelling circumstances in the district court's discretion unless it's foreclosed by the constitution or the statute. [00:08:58] Speaker 00: Sorry, maybe I was unclear. [00:09:01] Speaker 00: Your client is relying on a change in sentencing. [00:09:09] Speaker 00: One way to read that is simply that the crimes for which he was convicted now face different mandatory minimums or that the sentencing scope for the district court has changed. [00:09:29] Speaker 00: None of that is true in this case. [00:09:35] Speaker 00: So as to your client, were his conviction to be reversed, his sentence would have to be based on the law as it was at the time he was convicted of committing the offenses. [00:09:56] Speaker 00: Is that not correct? [00:09:59] Speaker 03: I don't think it's correct. [00:10:01] Speaker 00: Even though the basis of the argument here is that were he to commit those crimes now and be convicted, he would be facing a different sentence [00:10:18] Speaker 00: But that sentence has not been made retroactive. [00:10:22] Speaker 00: So on what basis would he be able to argue to the district court that in fact there has been a legal change in sentencing such that for the crimes of which he was convicted, he no longer can be, the district court would no longer have authority [00:10:44] Speaker 00: to impose the sentence of the length he currently faces. [00:10:52] Speaker 02: The non-retroactivity of Thay Booker and Apprendi, for instance, is not just positive. [00:10:58] Speaker 02: And the Supreme Court indicated that in Concepcion in dealing with another first step back provision where it noted that [00:11:06] Speaker 02: under the under the other provisions for gaining immediate release. [00:11:11] Speaker 02: Uh, Mr Cepcion was not, was entitled to no relief, but the court noted nonetheless, he could raise an argument that because of changes in the law that were non retroactive, he would be treated differently today. [00:11:24] Speaker 02: And that's a fairness type of consideration that the court and it's the district court and it's discretion and consider [00:11:31] Speaker 02: in determining early release. [00:11:34] Speaker 02: And here we would take that holding as the Chen court did exactly this. [00:11:38] Speaker 02: And the circuits that go our way have done instead, even if the sentence had no legal problems back in 1997, if those same circumstances exist today in a 2022 sentencing judge, we're looking at this. [00:11:53] Speaker 02: And if [00:11:54] Speaker 02: the prisoner would get a significantly different sentence lower, the district court in its discretion can put that in the basket of considerations and decide if that, with all the others, is sufficient to allow Mr. Wilson early release. [00:12:09] Speaker 00: So your argument is Concepcion plus a split in the circuits. [00:12:14] Speaker 02: My argument is the text of the statute that the extraordinary and compelling reasons has no limits other than rehabilitation alone and not constitute an extraordinary and compelling reason. [00:12:24] Speaker 02: And that's what Chen for instance says, and all the circuits that go our way say the only statutory limitation is that rehabilitation alone cannot allow for early release. [00:12:35] Speaker 00: So you agree, do you not counsel that there is a split in the circuits on this question? [00:12:43] Speaker 00: But you're reading Concepcion to answer the question. [00:12:49] Speaker 02: Yes. [00:12:50] Speaker 02: Well, I'm reading that there was a split of about five to five at this point, with only this court not yet taking a position on it. [00:13:00] Speaker 02: I guess that would make it six to five one way or the other. [00:13:02] Speaker 00: No, my question, just so you're clear. [00:13:06] Speaker 00: is, is it an open question in this circuit? [00:13:12] Speaker 00: Or are you arguing that Concepcion controls? [00:13:19] Speaker 02: I think the best analysis is Chen, but also Judge Bates' analysis in a couple of decisions we cited, which is that it's an open question in this circuit. [00:13:30] Speaker 02: But given Concepcion, the necessary answer [00:13:35] Speaker 02: from the analogous situation in Concepcion is that anything not forbidden by the Constitution or the statute [00:13:42] Speaker 02: can be taken up by the district court as an extraordinary compelling reason. [00:13:47] Speaker 02: And the district court did not take this up. [00:13:49] Speaker 02: Even though Mr. Wilson raised it, the district court didn't take it up because it thought it was foreclosed on the face of the statute because the change that he argues concerning Booker and Apprendi was non-retroactive. [00:14:01] Speaker 02: Concepcion pushes that to the side and says, just because something is non-retroactive doesn't mean you can't make a fairness argument that nonetheless, you should be treated [00:14:11] Speaker 02: for in the discretion of the district judge and get the benefit of the change in the law. [00:14:16] Speaker 00: So do you read that as dictum or an actual holding? [00:14:21] Speaker 02: Well, it's holding with respect to the First Step Act provision at issue in Concepcion. [00:14:29] Speaker 02: It's not dictum at all. [00:14:30] Speaker 02: It's holding. [00:14:31] Speaker 02: The issue is because this involves a different section of the First Step Act. [00:14:36] Speaker 02: does should we just put should we do what the 7th circuit didn't said well that's a different part of the statute so let's not consider it all judge bait said the opposite 10 says the opposite and actually when you go to this court's decision in United States versus long. [00:14:52] Speaker 02: The court there very recently involving this provision of the first step back started said the others look very much like this part of the first step back. [00:15:02] Speaker 02: So we're going to borrow the case law from over there for this one. [00:15:05] Speaker 02: And that's what we would say you should do here. [00:15:09] Speaker 02: Concepcion does not involve this particular section of the first step back, but Concepcion has so much information properly stated that's helpful in our case that [00:15:22] Speaker 02: It really is, in my view, it's disingenuous of the other courts, for instance, the Seventh Circuit, to pretend that that case is just very narrow and limited to its fact. [00:15:33] Speaker 02: If I could, I know I'm well over my time, but if I could just read one part of it. [00:15:46] Speaker 02: The very first section of analysis from Consensuion says, [00:15:51] Speaker 02: And this is at page 2398, the Supreme Court site. [00:15:58] Speaker 02: From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion. [00:16:03] Speaker 02: Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them [00:16:15] Speaker 02: That discretion also carries forward to later proceedings that may modify an original sentence. [00:16:21] Speaker 02: Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence. [00:16:30] Speaker 02: And Chan, Judge Bates, and the circuits that we've, that are on our side, all take that, that presciently the circuits that reached the before conception said exactly this as well, that [00:16:42] Speaker 02: The text of the statute has to foreclose consideration of changes in the law in order for it not to be considered, even if they're not retroacted. [00:16:52] Speaker 04: Just a couple of follow-up questions. [00:16:55] Speaker 04: With respect to your argument on disparity, it appears that Mr. Wilson was just discussing that there were changes in average murder sentencing nationwide, like he didn't appear to point to something very specific about a change in the sentencing law. [00:17:14] Speaker 02: Correct. [00:17:15] Speaker 02: When he talked about disparity in his own brief, he talked about studies and statistical analyses that showed that when a judge has discretion about a sentence, that the discretion had been exercised in recent times far differently than it was in 1997, so that there are now disparities in the exercise of the discretion. [00:17:37] Speaker 02: And because the section 3553 [00:17:40] Speaker 02: A factors, use the word disparity, that was his point. [00:17:43] Speaker 02: But his change in the law argument is different. [00:17:47] Speaker 02: His change in the law argument is that the district court, Judge Norma Holloway Johnson back in 1997, [00:17:56] Speaker 02: considered facts that were not in front of the jury and that were not found by the jury in connection with a particular crime she was sentencing him on. [00:18:04] Speaker 02: And she could do that at the time, but she couldn't do that now under Apprendi and Booker. [00:18:11] Speaker 02: His first degree murder charge under a federal statute would have been a second degree [00:18:19] Speaker 02: sentence in his view. [00:18:21] Speaker 02: It's complicated, but he never got the chance to present this to the district court because she categorically held that changes in the law don't matter. [00:18:29] Speaker 04: Okay. [00:18:29] Speaker 04: And I'm trying to get to the point that in my opinion, it would be a floodgates argument if we just talked about disparity generally, like looking at stats and sentencing commission reports and things of that nature without a specific change in the law. [00:18:46] Speaker 02: Perhaps. [00:18:46] Speaker 02: Perhaps. [00:18:47] Speaker 02: If you were to hold that [00:18:49] Speaker 02: The changes in the judicial philosophy from 2022 compared to 1997 are sufficient to allow someone out of prison. [00:18:57] Speaker 02: If that was the only angle the prisoner had, that wouldn't seem to be extraordinary in the sense that it could be made by many, many people. [00:19:06] Speaker 02: But he raises a change in sentencing law argument based on Booker and Apprendi. [00:19:11] Speaker 02: He raises that disparity argument. [00:19:13] Speaker 02: But he also raises his health, his good conduct in prison, [00:19:17] Speaker 02: The fact that the victim's family also doesn't disfavor his release, COVID-19 and [00:19:26] Speaker 02: variety of other factors. [00:19:27] Speaker 04: Okay. [00:19:27] Speaker 04: And then to take that point further, are you agreeing that a change in the law alone is not sufficient for the change in sentencing, that it should come with other factors in consideration? [00:19:38] Speaker 02: I don't agree with that, but I don't think you need to reach that here because he has raised several other factors, his health, his age, his good behavior. [00:19:46] Speaker 04: Why don't you agree that a change in the law alone is not sufficient? [00:19:51] Speaker 02: because I think that the statute doesn't say that the statute does not say a change in the law alone may not constitute an extraordinary and compelling reason. [00:20:00] Speaker 02: Unlike it does say the change that it does say rehabilitation alone and not be a extraordinary and compelling reason. [00:20:06] Speaker 02: And I could foresee a case where a person in their twenties, for instance, or thirties like Mr. Wilson was sentenced to life in prison, which can be a 70 year sentence potentially as a result for some lists of their nineties or the fair sentencing act. [00:20:20] Speaker 02: Correct. [00:20:20] Speaker 04: Okay. [00:20:21] Speaker 02: And if the law changed so that that person might get 20 years, a 50 year difference is a very unique situation for that person. [00:20:30] Speaker 02: That sole factor could be extraordinary. [00:20:33] Speaker 04: And then where is the re-sentencing occurring? [00:20:36] Speaker 04: Are we looking to First Step Act or are we looking to 3553A factors? [00:20:40] Speaker 02: The way the case law plays out currently, the court looks to [00:20:47] Speaker 02: 3582C1A to determine if there's an extraordinary compelling reason for him to be out. [00:20:53] Speaker 02: And he would say the constellation of factors in his favor here, including the changes in law, should allow him, does get him through the threshold of extraordinary compelling reasons. [00:21:03] Speaker 02: And then the courts look at the factors under 3553A to determine how much the reduction should be. [00:21:11] Speaker 02: would argue they all weigh in. [00:21:13] Speaker 02: All the considerations sort of meld together here. [00:21:15] Speaker 02: And he should, having served 26, 27 years at this point and being no risk and being unhealthy, all the factors, even under the 3553A, move him down to release now. [00:21:28] Speaker 04: And is there any reason that the court based on this record could not make the decision if we were to rule with you that the change in the law in consideration of some of your arguments was sufficient? [00:21:39] Speaker 02: I don't think this court could make that decision because, uh, under long and under conception, it's, it's the district court's discretion that needs to be, that needs to be exercised. [00:21:49] Speaker 02: And the, um, after, after development of the argument and the argument was not developed because the district court held that as a matter of law, it couldn't be raised. [00:21:58] Speaker 02: So what we have to, I don't think on this current record that's in this appeal, [00:22:02] Speaker 02: this court or even the district court could just answer the question right now. [00:22:07] Speaker 02: Instead, the district court would have to have further proceedings in which Mr. Wilson proved his claim that among all the different factors, they weigh in favor of his release. [00:22:20] Speaker 00: I have one other question then. [00:22:24] Speaker 00: Do you concede that harmless error applies? [00:22:31] Speaker 02: I think harmless error applies in most, it does generally apply in appellate cases, but this isn't a harmless error. [00:22:38] Speaker 02: You can't even judge if it's harmless because the argument was never considered by the district court. [00:22:45] Speaker 00: And the district court- So what I'm getting at council is suppose we assume merit to Mr. Wilson's argument on that point, [00:23:01] Speaker 00: could not this court still conclude that any error was harmless in light of the factors the district court did identify. [00:23:13] Speaker 00: In other words, what I'm getting at is there's still a lot of discretion among district court judges in sentencing. [00:23:24] Speaker 00: And the fact that [00:23:26] Speaker 00: a defendant is young at the time he commits his offenses is certainly no bar as we know from even recent sentences to the district court exercising its discretion to impose life or near life given the defendant's age. [00:23:49] Speaker 00: So here, the district court [00:23:53] Speaker 00: had a very different take on the factors that your client did raise, or the client whose case you're amicus. [00:24:06] Speaker 00: So that's what I'm trying to understand. [00:24:10] Speaker 00: In other words, we take the length of sentence, all right? [00:24:16] Speaker 00: But the district court, who's an experienced district court judge, [00:24:24] Speaker 00: and in the state court as well, decided the heinous nature of these offenses and the factors raised in the district courts view did not present [00:24:51] Speaker 00: the type of case for which the statute was designed and therefore denied relief. [00:25:06] Speaker 02: My position is that the district court came to that conclusion without consideration of one of the factors [00:25:14] Speaker 02: on the merits that Mr. Wilson raises, and whether the district court, when considering the factors that she herself found were in favor of Mr. Wilson, plus this additional factor, which should be assumed, as you noted, Judge Rogers, for your question, should be assumed in his favor, whether all those factors put outweigh the, as you put it, the heinous nature of the crime. [00:25:38] Speaker 00: We don't know. [00:25:39] Speaker 00: But did the district court not say [00:25:42] Speaker 00: that considering what he had presented and argued, that was simply not enough in the district court's view to allow the type of narrow relief that the statute contemplated. [00:26:06] Speaker 00: This is not, oh, let's empty the prisons, but rather for [00:26:12] Speaker 00: particular defendants, either because of health or something like that, basically out of the defendant's control, there can be relief. [00:26:27] Speaker 00: But that is not this case the district court found. [00:26:32] Speaker 00: I'm just trying to understand why this court is barred from affirming in those circumstances. [00:26:42] Speaker 02: Is the district court. [00:26:43] Speaker 02: when it considered this change in sentencing law or disparity argument said, I will not consider a change in sentencing law, except I will in the factors analysis look to the length of his sentence. [00:26:55] Speaker 02: And if he served about 95% of the sentence, maybe that would weigh in his favor. [00:27:00] Speaker 00: What I'm getting at is that a number of circuits have not read this law to bar consideration of the 553A factors. [00:27:12] Speaker 00: at the first step, and why should we? [00:27:14] Speaker 02: I don't think you should. [00:27:17] Speaker 02: I don't think you should. [00:27:17] Speaker 02: I think all the considerations need to be considered by the district judge. [00:27:23] Speaker 02: In fact, the statute says that the 3553A factors must be considered in addition to all the arguments raised by the applicant, and here the district judge [00:27:35] Speaker 02: left one section out that Mr. Wilson raised. [00:27:38] Speaker 02: And we can't know the answer to how she would have reached this, what the conclusion she would have reached if instead of the lesser number of factors and considerations she considered, whether the result would be exactly the same if she had this additional factor that she wrongly thought was off limits. [00:27:58] Speaker 00: Well, that's what I'm getting at. [00:28:03] Speaker 00: I don't see her saying that. [00:28:05] Speaker 00: And is your critique really that the district court never expressly said, even considering a change in law, as Mr. Wilson argues, in my view, the factors do not balance ultimately in his favor. [00:28:37] Speaker 02: But the factors need to be balanced by the district court, not respectfully, not the Court of Appeals and conceptually arguing in my question. [00:28:48] Speaker 00: What is it in the district court's opinion specifically? [00:28:55] Speaker 00: That tells you that the district court never considered. [00:29:02] Speaker 00: How? [00:29:06] Speaker 00: a change in sentencing in the liberal way that we've been discussing it in your answers, would entitle him to relief. [00:29:18] Speaker 00: As I read her opinion, she viewed his crimes as particularly heinous, and the mere fact of his health, she just, [00:29:32] Speaker 00: She said that was not persuasive given he's been vaccinated and no one else at the facility has an infection. [00:29:42] Speaker 00: And he hasn't really pointed to anything else. [00:29:50] Speaker 02: So, Your Honor, so on page six of the district board's opinion. [00:29:56] Speaker 02: The lower court said the length of time served factor will be addressed in connection with consideration of the 35 53 a factors as it does not in and of itself constitute an extraordinary and compelling circumstance. [00:30:08] Speaker 02: So at the gate, the judge said, you know, [00:30:11] Speaker 02: In reality, I can't even get to the 3553A factors unless you prove extraordinary and compelling reasons. [00:30:18] Speaker 02: And your argument about changing the law or the amount of time you've served would be different now. [00:30:23] Speaker 02: That I can't even consider as extraordinary and compelling. [00:30:27] Speaker 02: That's what she held on. [00:30:28] Speaker 00: Why do we read the district court's opinion in that way to assume legal error? [00:30:39] Speaker 02: Well, I think it's plainly there. [00:30:41] Speaker 02: She thought, and this was the government's argument that she accepted, which is that a change in sentencing law, a change in sentencing law cannot be part of the extraordinary and compelling reasons. [00:30:52] Speaker 02: consideration. [00:30:53] Speaker 02: I think it's clear. [00:30:54] Speaker 00: So I understand you keep relying on the government. [00:30:57] Speaker 00: And if I were in your shoes, I would too. [00:31:00] Speaker 00: But this court is not bound by either counsel's view. [00:31:03] Speaker 00: And I'm trying to get you to look beyond at what in the district court opinion convinces you that A, she could not, in the first step, look at the 3553A factors. [00:31:23] Speaker 00: in deciding that even if there had been a change in sentencing. [00:31:33] Speaker 02: So I wouldn't disagree that if she had looked at his arguments in connection with the factors, [00:31:40] Speaker 02: Or in this part of her decision in the extraordinary and compelling reasons analysis, if she had looked at his change in sentencing law argument in either place, that might suffice. [00:31:51] Speaker 02: But when on page 6, he says, I'm not considering it here in the extraordinary and compelling reasons. [00:31:55] Speaker 02: And then when you get to the factors analysis, she doesn't consider it. [00:31:59] Speaker 02: For instance, on page 10 is where she gets to it. [00:32:01] Speaker 02: She doesn't consider it there either. [00:32:03] Speaker 02: She reads it not that a change in sentencing law can be considered. [00:32:08] Speaker 02: What she says is, I'll consider a length of sentencing argument if you serve the vast majority of your sentence, which is another argument, of course, but it's not the argument he made. [00:32:20] Speaker 00: Well, why don't we take her at her word is what I'm getting at. [00:32:27] Speaker 02: I wish you would, excuse me, take her for her word, because I think she did. [00:32:31] Speaker 00: You want to give her words in the most negative way is what I'm getting at. [00:32:38] Speaker 00: And she says, alone, it's not enough. [00:32:45] Speaker 00: So then she says, but I'm going to consider the factors. [00:32:49] Speaker 00: And then I'll decide. [00:32:52] Speaker 00: I mean, I think she was clear about the argument [00:32:55] Speaker 00: Mr. Wilson was making about a change in sentencing law. [00:32:59] Speaker 00: She wasn't even getting into this sort of technical argument that were posed by my questions earlier. [00:33:09] Speaker 02: Well, I just, I guess, would repeat my answer just to summarize it, which is that she rejected the idea that change in sentencing law can be an extraordinarily compelling reason. [00:33:19] Speaker 02: She did say she would consider it. [00:33:21] Speaker 00: Alone. [00:33:21] Speaker 00: Alone. [00:33:22] Speaker 00: That's all I'm getting at. [00:33:23] Speaker 00: Yeah. [00:33:24] Speaker 02: Well, alone, she says that. [00:33:26] Speaker 02: But yes, alone, she says that. [00:33:28] Speaker 02: She does then cite the District of Kansas case, which follows the circuits that are negative altogether. [00:33:35] Speaker 02: But she then doesn't consider it as part of the extraordinary and compelling reasons at all. [00:33:41] Speaker 02: So whether she thought it couldn't be alone or even in conjunction with the other considerations for extraordinary and compelling is obvious. [00:33:49] Speaker 02: because she didn't consider it there. [00:33:51] Speaker 02: When she gets to the factors, she doesn't consider it there either, because the only thing she considers there, she matches how much time is served against the life sentence that he was originally given. [00:34:02] Speaker 02: That's not his argument on the change in law. [00:34:04] Speaker 02: His argument is that he wouldn't have been given a life sentence in 2022 based on what happened during the trial. [00:34:10] Speaker 02: He would have been given 25 years. [00:34:12] Speaker 00: Thank you. [00:34:12] Speaker 00: Sorry to belabor the questioning. [00:34:14] Speaker 02: Of course. [00:34:15] Speaker 04: Thank you. [00:34:16] Speaker 04: I'll still allow you to reserve two minutes in rebuttal. [00:34:18] Speaker 02: Thank you. [00:34:19] Speaker 04: Okay. [00:34:20] Speaker 04: And just so you, uh, all parties will know, uh, Judge Silverman will not be present today, but he'll be relying on the briefs, the record and of course, the transcript of this proceeding. [00:34:29] Speaker 04: Thank you. [00:34:30] Speaker 04: Government. [00:34:37] Speaker 01: Yeah, please. [00:34:37] Speaker 01: Court Davis table on behalf of the United States. [00:34:39] Speaker 01: Good morning, Judge Charles Rogers. [00:34:42] Speaker 01: Uh, [00:34:44] Speaker 01: Judge Rogers is absolutely right that we should take Judge Paola Cattelli at her word. [00:34:48] Speaker 01: She said, ECF 399, in her denial of the motion to reconsider, that she had discussed in her earlier order, Mr. Wilson's arguments that the sentence he received would be shorter if he was sentenced now, and how this should be considered by the court as an extraordinary and compelling circumstance. [00:35:10] Speaker 01: She considered it, and she made it very clear in the order [00:35:14] Speaker 01: that her legal ruling was that a non-retroactive change in sentencing law could not alone constitute an extraordinary and compelling circumstance, which is the view of not only six circuits, but also the four circuits that have said it can be considered in combination. [00:35:34] Speaker 01: There is only one circuit, the fourth, that has said it could be considered alone. [00:35:39] Speaker 01: So any error, if there was error, we don't think there was, would be harmless for the additional reason that although Mr. Wilson said, yes, I have these other reasons I want you to consider. [00:35:49] Speaker 01: I'm hypertensive. [00:35:50] Speaker 01: I have early stage kidney disease. [00:35:52] Speaker 01: The court found that they were all unsupported. [00:35:56] Speaker 01: So if all those decisions are unsupported, the only thing he's left with here on appeal is an unvarnished claim that I would be sentenced [00:36:05] Speaker 01: to a shorter sentence if I were re-sentenced now, which is not cognizable, even if it were, and Judge Childs, you asked this question, I think Judge Rogers, you did as well. [00:36:16] Speaker 01: We didn't have the PSR at the time, but his claim is, as I understand it, an uprending claim. [00:36:21] Speaker 01: He was convicted of killing a federal witness in the first degree. [00:36:27] Speaker 01: He was also convicted of first degree murder while armed as a D.C. [00:36:32] Speaker 01: co-defense, which codifies [00:36:34] Speaker 01: common law. [00:36:35] Speaker 01: There's no appending problem here. [00:36:38] Speaker 01: There is no change in sentencing law and the statute, not Booker, not the guidelines. [00:36:42] Speaker 01: The statute still says that if you will be sentenced today, you would get life or death. [00:36:49] Speaker 01: So I think we're here. [00:36:51] Speaker 01: I didn't do a very good job of briefing this, but we're here for a defendant who's got no legs to stand on on his change in sentencing claim. [00:37:02] Speaker 01: Now, so that's why I think the claim is it would be harmless. [00:37:07] Speaker 01: I'm just touching briefly on the exhaustion of remedies before we get to the statutory threshold question. [00:37:15] Speaker 01: As the judge, as the court knows, when we briefed [00:37:19] Speaker 01: We brief a claim. [00:37:20] Speaker 01: We brief our procedural arguments. [00:37:21] Speaker 01: We brief our merits arguments. [00:37:23] Speaker 01: We don't want the judge to come back to us and say, Mr. Savo, we don't like your merit procedural arguments. [00:37:28] Speaker 01: How about another brief on the merits? [00:37:29] Speaker 01: We do it all at once. [00:37:30] Speaker 01: We're not waiving our procedural arguments when we do that. [00:37:33] Speaker 01: But we haven't waived. [00:37:34] Speaker 01: We asserted our exhaustion of remedies argument. [00:37:38] Speaker 01: It's a mandatory claims processing role. [00:37:40] Speaker 01: We're entitled to have a ruling on that. [00:37:43] Speaker 01: On the issue preclusion issue, the Seventh Circuit said, [00:37:48] Speaker 01: that there's an issue of collusion and distinguish the cases that Mr, that appellant is relying on. [00:37:53] Speaker 01: I'm not going to say any more about that. [00:37:55] Speaker 01: You can read the case. [00:37:56] Speaker 01: The third circuit in an unpublished opinion has followed it and Judge Bates has followed it here in this, in this court. [00:38:02] Speaker 04: What about in Car B Saul, which is a Supreme court 2021 indicating that administrative exhaustion does not require exhaustion of every issue. [00:38:12] Speaker 01: I'm sorry. [00:38:12] Speaker 01: What was that case again? [00:38:13] Speaker 01: Your honor? [00:38:13] Speaker 04: Car B Saul, S A U L. [00:38:19] Speaker 01: I haven't read that, Your Honor. [00:38:21] Speaker 01: I remember the Sims case, the case that I thought it was relying on, and it was distinguished in Williams. [00:38:27] Speaker 01: I would have to rely on that and get back. [00:38:29] Speaker 01: That may be in Williams, I'm not sure. [00:38:33] Speaker 01: Turning to the extraordinary and compelling reasons question. [00:38:41] Speaker 01: When Congress created this very narrow exception to the presumed finality of legally imposed judgment, [00:38:49] Speaker 01: It imposed statutory question of extraordinary and compelling reason. [00:38:54] Speaker 01: It's a threshold question that calls on this court, if you address it, to construe the statute. [00:39:01] Speaker 01: This is not a question of judicial discretion in sentencing. [00:39:04] Speaker 01: This is a question of what did Congress mean when it said extraordinary and compelling? [00:39:09] Speaker 01: What do we know about what's extraordinary? [00:39:11] Speaker 01: Well, first of all, we know that Supreme Court has said it's the ordinary practice [00:39:17] Speaker 01: when a legally imposed sentence is imposed, that it remain in effect. [00:39:22] Speaker 01: So a change in sentencing law is imposed ordinarily, affects defendants who have not yet been sentenced, is not applied to the sentence who have already been sentenced. [00:39:32] Speaker 01: That's the ordinary practice. [00:39:34] Speaker 01: So the ordinary practice cannot be extraordinary. [00:39:38] Speaker 01: The plain meaning of extraordinary cannot be applied to legally imposed sentence. [00:39:43] Speaker 01: And what we have here is an ordinary legally imposed [00:39:47] Speaker 01: That's what number of the circuits have said. [00:39:49] Speaker 01: And I think the best construction of this that I've read would be the Andrews case out of the third circuit. [00:39:55] Speaker 01: Second issue is that we do have guidance from the commission and this court has said, well, that guidance is not binding, but even the circuits that have said that guidance is not have not binding have looked at to it as a guy. [00:40:09] Speaker 01: Why? [00:40:10] Speaker 01: Because Congress doesn't legislate against it back. [00:40:12] Speaker 01: You know, Congress, [00:40:15] Speaker 01: changed the law in 2018 and said, this is a law that's been in place for 40 years, you, the inmates who file a motion, not just the BOP, but it didn't change the exhaustion of remedies provision and it didn't change the extraordinary and compelling reasons provision. [00:40:33] Speaker 01: And we know that, and it didn't say anything about creating this freewheeling sentencing mechanism. [00:40:42] Speaker 01: We know the guidance refers to health conditions. [00:40:45] Speaker 01: It can refers to age, it refers to risk, it refers to family circumstances. [00:40:51] Speaker 01: It gives no indication that there would be any, that change in sentencing law is cognizable. [00:40:58] Speaker 01: Congress never said anything about this. [00:41:01] Speaker 01: It doesn't make sense to think that when Congress amended the law in this small way in 2018, it was creating this huge change in what the statutory remedy was and said nothing about it. [00:41:13] Speaker 01: That's not the way Congress works. [00:41:15] Speaker 01: It doesn't hide the elephant in the mouse hole. [00:41:18] Speaker 01: Moreover, in that very statute in 2018, Congress said, hey, those crack sentencing guidelines, yeah, we're going to make those retroactive. [00:41:29] Speaker 01: But it didn't say anything about making any other sentencing changes retroactive. [00:41:32] Speaker 01: So it's an end run around congressional intent. [00:41:36] Speaker 01: It just doesn't make sense to construe extraordinary and compelling reasons in this circumstance. [00:41:42] Speaker 01: as anything as encompassing the sentencing, uh, changes in sentencing law, which we don't even have here. [00:41:50] Speaker 04: Well, then how do you read concepts? [00:41:52] Speaker 01: Concepcion is a case where it was undisputed that Concepcion was eligible for sentencing. [00:41:59] Speaker 01: And so it was a question of what is the court's broad discretion in sentencing. [00:42:03] Speaker 01: And so Concepcion would be applicable as a number of courts have said, if we were at the 35, if we're in 3553 A land, yes, that's what we're talking about. [00:42:11] Speaker 01: Concepcion. [00:42:13] Speaker 01: the court considers the entire person, can consider everything. [00:42:16] Speaker 01: That's where Concepcion is pertinent. [00:42:18] Speaker 01: Concepcion says nothing about what the statutory term extraordinary and compelling means. [00:42:25] Speaker 01: The holding of Concepcion pertains to a different statutory provision, and the dicta pertains to 3553A. [00:42:33] Speaker 01: It has nothing to do with the threshold question of what this term means. [00:42:40] Speaker 01: And there just isn't any reason to go out and say, well, this term means something completely different than what it has been interpreted by the agency and by the courts to mean for 40 years. [00:42:54] Speaker 04: Is there any circumstance under which the government would accept that a change in sentencing law can be considered extraordinary and compelling? [00:43:06] Speaker 01: It's a difficult question to answer. [00:43:10] Speaker 04: But for example, when we, um, I mentioned earlier, the fair sentencing act, I changed the ratio from 100 to one to 18 to one. [00:43:18] Speaker 02: Yes. [00:43:18] Speaker 04: Would that be considered something that even if it were not retroactive that a district court could consider? [00:43:25] Speaker 01: It's tough to say. [00:43:27] Speaker 01: Certainly some of those cases have emotional appeal, but my answer would be twofold. [00:43:31] Speaker 01: Your honor. [00:43:31] Speaker 01: First of all, [00:43:33] Speaker 01: Congress creates these narrow exceptions and it didn't create one for these other reasons. [00:43:37] Speaker 01: It created it for some, but not for others. [00:43:39] Speaker 01: Maybe that's unfair, but that's what Congress did. [00:43:41] Speaker 01: And the second thing is, if there is such a case, this isn't the case. [00:43:46] Speaker 01: Mr. Wilson killed a federal witness and was convicted of first degree murder while armed. [00:43:52] Speaker 01: There isn't an Apprendi problem. [00:43:54] Speaker 01: There isn't a Booker problem. [00:43:56] Speaker 01: There isn't a change in sentencing law here. [00:43:59] Speaker 01: And I think Judge Childs, you were talking to counsel about [00:44:02] Speaker 01: Well, what about changes in sentencing philosophy? [00:44:06] Speaker 01: None of these cases, there are about 15, 16 cases in the various circuits. [00:44:12] Speaker 01: None of these cases say anything about changes in sentencing philosophy. [00:44:15] Speaker 01: They all involve changes in sentencing law. [00:44:18] Speaker 01: They're non-retroactive, like stacked sentences is the most common one. [00:44:22] Speaker 01: Or the change in underlying convictions, which renders somebody not a career offender if they were resentful. [00:44:29] Speaker 01: So the ordinary, again, [00:44:40] Speaker 03: for its brief indulgence. [00:44:45] Speaker 04: But you have a circuit split. [00:44:47] Speaker 04: So how do you suggest that that be handled? [00:44:50] Speaker 01: Right. [00:44:50] Speaker 01: So six circuits have said changes in sentencing law cannot be considered at all. [00:44:57] Speaker 01: Two of those circuits say so in part because they believe that the policy guidance is binding. [00:45:03] Speaker 01: So maybe an asterisk goes by two, but it's six, two is an asterisk. [00:45:08] Speaker 01: Four, say, in combo with other factors, it's OK. [00:45:11] Speaker 01: And one, only one, says, as a freestanding basis for relief, that would be the four circuit, that it's OK. [00:45:18] Speaker 01: And that was a stacked sentence. [00:45:23] Speaker 01: Obviously, you read those cases. [00:45:24] Speaker 01: You're going to read those cases. [00:45:25] Speaker 01: You're going to decide which is the most relevant cases. [00:45:28] Speaker 01: I think this court's well aware that for the first time in years, thankfully, the Sentencing Commission has a quorum. [00:45:36] Speaker 01: And if the Sentencing Commission [00:45:38] Speaker 01: has new guidance, then the guidance will, of course, be required because the statute does require consistency with applicable policy guidance. [00:45:48] Speaker 01: And so hopefully that will be the case. [00:45:50] Speaker 01: This is an issue that will not be around for a long time. [00:45:56] Speaker 01: But again, we do think that that policy guidance shouldn't be a guide for this court. [00:46:00] Speaker 01: And there's no indication that guidance would reach out to [00:46:05] Speaker 04: I still don't hear in your answer which way this circuit should go. [00:46:09] Speaker 01: Oh, this circuit should absolutely say, I'm sorry, thank you, because my supervisor has really killed me if I didn't answer that question. [00:46:16] Speaker 01: The answer is, of course, this circuit should say that changes in sentencing law are not cognizable, are not by themselves. [00:46:27] Speaker 01: The district court's opinion was, by itself, a change in sentencing law is not an extraordinary compelling reason. [00:46:34] Speaker 01: It did not raise the question of in combination with other factors. [00:46:39] Speaker 01: So to affirm on this particular point, the court would be on the side of 10 circuits and only disagreeing with the fourth. [00:46:46] Speaker 01: That is the right view. [00:46:50] Speaker 01: If there are no further questions, we would ask that the judgment of the district court be affirmed. [00:46:54] Speaker 04: Judge Rogers, do you have anything else? [00:46:56] Speaker 00: Thank you. [00:46:57] Speaker 00: No. [00:46:59] Speaker 01: Thank you. [00:47:00] Speaker 01: Have a good day. [00:47:08] Speaker 02: Your honor, I just want to make a few points. [00:47:10] Speaker 02: Mr. Sabel indicated that none of the other factors that Mr. Wilson raised were accepted by the district courts so that he'd be standing alone on this change in sentencing law argument. [00:47:21] Speaker 02: That's demonstrably wrong. [00:47:23] Speaker 02: The district court did find he was overweight, did find that he was of advanced age where COVID could be a greater risk. [00:47:29] Speaker 02: It did find he had an exemplary prison record. [00:47:32] Speaker 02: It did find he had an exemplary work record. [00:47:35] Speaker 02: And so there are factors. [00:47:37] Speaker 02: when added to a change in sentencing law, make this a multifaceted case as opposed to one where he's relying solely on a change in sentencing law. [00:47:47] Speaker 02: Mr. Sable also now gets to the merits of Booker and Apprendi, though he's never done it in any of his briefs and didn't do it below. [00:47:54] Speaker 02: His whole argument till now has been that extraordinary and compelling reasons cannot include a change in sentencing law, and even the factors should be looked at in a certain way that is negative here. [00:48:06] Speaker 02: And now he is arguing on the merits [00:48:08] Speaker 02: that Mr Wilson would have no argument under Booker and Apprendi. [00:48:13] Speaker 02: That's a complicated issue that was never developed alone. [00:48:15] Speaker 02: He should be deemed to have waived. [00:48:17] Speaker 02: The government should be deemed to have waived it by not raising it here. [00:48:19] Speaker 02: And the last thing I wanted to say is to get back to Judge Rogers question about the text of the the [00:48:29] Speaker 02: lower court's decision noting that she didn't consider this argument. [00:48:33] Speaker 02: And I turn to page, the bottom of page nine where the courts, this is the sum total of what the court says about this argument. [00:48:40] Speaker 02: Defendant spends a significant amount of time arguing that the sentence that he received would be shorter if he was sentenced now and that this should be considered as an extraordinary and compelling circumstance. [00:48:51] Speaker 02: circumstance. [00:48:52] Speaker 02: This court notes that the purpose of compassionate release is not a revisiting of a defendant's term of incarceration, although a court may look to the length of time served versus the length of time imposed. [00:49:04] Speaker 02: And then she cites two cases where if you basically serve 95% of your time, maybe that would weigh in your favor under the factors. [00:49:11] Speaker 02: That is not a consideration at all of this change in sentencing law. [00:49:15] Speaker 02: She rejected that that could be considered an extraordinary and compelling side and therefore only considered this [00:49:22] Speaker 02: different arguments of, did he serve almost all of his life sentence? [00:49:26] Speaker 02: We'll never know. [00:49:26] Speaker 02: We don't know how long he will live. [00:49:28] Speaker 02: So thank you. [00:49:29] Speaker 02: We'd ask that you vacate the decision of the district court and remanded back for consideration of all the factors that he did raise plus this raised low. [00:49:38] Speaker 02: And he also raised this one, but also consideration of the change in sentencing argument that he has raised. [00:49:45] Speaker 04: And thank you, Mr. Shelley. [00:49:46] Speaker 04: We understand that you've been court appointed and we appreciate your service. [00:49:49] Speaker 04: Thank you so much.