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Case number 20-3058 et al.

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United States of America versus Michael Palmer, also known as Tony, also known as not, also known as James at balance.

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Mr. Zucker for the balance, Mr. Smith for the appellee.

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All right.

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Mr. Zucker, good morning.

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And you're operating under a disability here, but we can see you and hopefully we can continue to hear you.

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Very well.

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Can we start now, Judge?

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Can you hear me okay?

[00:00:29] Speaker 06:
Yes, please.

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Great.

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Jonathan Zucker on behalf of the appellant may please the court request eight minutes for rebuttal.

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In this case, if I'm inclined to submit on the 2255 issue and just argue the first step issue.

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And I think if we, what I think has to be conceded right away and acknowledged is that the decision at issue here was issued prior to the US versus white decision and the US versus white decision

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substantially changed the landscape here.

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If that had been in effect, I don't think Judge Lambert's decision would have issued as it did in this case.

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As the government concedes, the decision reflects an error of law.

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And I suggest that it's fatal to the decision and the court is required to remand this case back for Judge Lambert's reconsideration consistent with the decision in white.

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What about his alternative ruling?

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He said, in effect, if I'm wrong about his ineligibility, I deny it in an exercise of my discretion.

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Well, I don't think that's the same as an exercise of discretion.

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And I think if we look very carefully at his decision, he made that clear.

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He says on page 10 of his decision, section 3553 lays out factors to be considered

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in imposing a sentence, which is precisely what the court declines to do.

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And he acknowledges that he's declining to apply the 3553 factors.

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And then he says, even if this court were to consider the 3553 factors, I think that's a long way from saying he has applied the 3553 factors, which is what is required here.

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So Mr. Zucker, just to be clear, so is your

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the basis for your argument that we have to remand the court's failure to consider the 3553 factors or are you also saying something about the prior paragraph on page 10 where the court seems to be setting out analysis that is similar to what I think you're talking about when you say there has been an error under white.

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Well, I think it's both.

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It's A, he failed to apply them.

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B, if he applied them, he did so as the strong decision says, if you are a decision that's based on an error of law indicates an abuse of discretion.

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And that's what he did here.

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To the extent he did apply them, and I think we have to take him in his word that he didn't apply the 3553 factors, but to the extent he did, he did so under the misconception that A,

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defendant was convicted of a crime that requires life without parole because of the 8.4 versus 1500 grams disparity.

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Judge Lamberth said that even if I were to consider it, he does not get consideration because even if the 8.4 was in effect at the time, this man has, in the words of Judge Green,

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distributed hundreds, or this conspiracy distributed 100 to 200 kilos.

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And that simply was not a finding that was made.

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That was an offhand comment by Judge Green, but it is not one that satisfies the requirements.

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Based on weight, you have to be sentenced based on what you're convicted of.

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And what he was convicted of was 1,500 grams or more, which puts him in the 20 to life category.

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And that's where Judge Lambert's error lies.

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Can I just be clear about it?

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The error you're saying is that you do not believe that in the exercise of Judge Lambert's discretion, he understood that after the first death act, the new mandatory minimum was 20 years, as applicable to Mr. Lambert.

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That's certainly correct.

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Yes, that's absolutely part of the error.

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The other error was he thought that Mr. Lambert, because I'm not Mr. Lambert.

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that Mr Palmer had been convicted of the greater offense.

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Therefore, the sense would have been the same.

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I mean, he says in his decision, there's no disparity between what he was convicted of in whenever it was and what it will be applied to today.

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And that belief that there was no disparity is based on his mistaken assumption that it would have been over the 8.4.

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But what is clear from the White decision is that he was convicted of the 1500 grams and it has to go back for reconsideration on that.

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And his statement that even if I were to apply

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um it would be the same sentence reflects his mistaken belief that uh the the greater offense level what we call i think the super cce 8.4 would have been applicable which it clearly is not based on white decision all right let me just clear up because you i think you said in response to my question he did not exercise his discretion on page 10 of his order he says even if palmer were eligible under the first step act

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via the rule of lenity or on the merits.

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The court would not in its discretion grant his motion for a reduced sentence.

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And then goes on and finally does talk about the 3553 factors, particularly the post-conviction factor of rehabilitation and weighs that against the minuses in his post-conviction behavior.

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So I don't know how you can say he didn't, maybe I misunderstood you, that he didn't exercise his discretion, even if- Go ahead.

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What I'm saying is he didn't exercise discretion because he was operating under an error of law that life without parole was still applicable based on the conviction.

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Now, certainly he has discretion to impose a life without parole sentence, but he operated under that mistake.

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And additionally, I think we have to take him at his word, where he says, I'm declined to consider it.

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I'm declined to consider the 3553 factors.

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But even if I were, he's not really the synonymous with saying I did consider them.

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And I think when we look at his decision, it's clear he hasn't considered some of them.

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He hasn't considered, for instance, he considered and made a passing reference to the letters of support from family and friends.

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But he did not consider all of the post-conviction rehabilitation that Mr. Palmer had done.

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He did not consider the change in the law.

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He did not consider the social science materials that were presented to him indicating that the senselessness of or the inability of these prolonged incarcerations

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to result in really a reduction of crime.

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Mr. Zucker, can I just be a little, I think we have to drill down just a little bit more because given that there was not a hearing here, I think it's unclear as to what he considered.

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It seems to me that you're suggesting that he didn't consider certain things.

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And I guess that's because he didn't mention them in the written decision, but

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Is it true that we know for a fact that he did not consider those other things?

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I think we can say that we certainly can't speak with fair assurances that he has considered them.

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And I think the Shaw decision in the brief that we cited that talked about, based on the silence, we can't infer that it was considered.

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But I think the primary thing or the primary indicia that he did not consider them, well, I guess it's two things.

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A, he doesn't mention them.

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And there is no hearing where they would have been presented to him.

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B, he was operating the whole time under a mistake of law that this should have been a life without parole sentence, regardless of the first step back.

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That was just a mistake on his part.

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And so I think because we cannot say there's indicia that he did really consider them.

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And he says, even if I were, that's not the same as doing it.

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I think in fairness, we have to remand this case or this case

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should be remanded to him to make those considerations.

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You're picking out portions.

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The very last paragraph before his conclusion says, the court has carefully considered the impressive supportive letters the court has received from Palmer's family, friends, family members, and friends.

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I don't see it.

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He said carefully, considered the impressive supportive letters,

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That tells me he's read them.

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I don't doubt that he's read them, Judge.

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I'm sorry, I didn't mean to cut you off, but I don't doubt that he's read them, but he hasn't considered them.

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I think there's no support in the record for saying that he's considered, for instance, all the post-conviction rehabilitation that was done here, which is substantial.

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I mean, this man did several drug rehab programs.

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He got an OSHA certificate.

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He was on suicide watch.

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Let me make sure I understand you at this point.

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If he doesn't mention something, he doesn't mention suicide watch, then the opinion is inadequate and has to be remanded for further consideration?

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I don't think we could splice the salami that sent judge to say if he leaves out one fact.

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However, the complete absence of a discussion of any rehabilitation and any post-conviction rehabilitation.

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the complete absence of any discussion of the social sciences literature, and the complete absence that he ever considered that the correct sentencing exposure for this man was 20 to life, not life without parole, all of which undermines confidence that there was an exercise of discretion here that was meaningful.

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Let me ask you, Mr. Zucker, do we know what these letters from family and friends said?

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I mean, from all we know, they pointed out his rehabilitation efforts and his suicide watch and so forth.

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Do we have those letters?

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In all cancer, I do not recall off the top of my head what they said.

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I think they are, and I can't even remember if they're part of the record, Judge.

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But I think we have to- Can I ask a similar- Mr. Zucker, before you go on, I had understood that it was not just letters from family and friends that he was presented with.

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At one point, it seemed as though there were at least some letters, at least one letter from corrections officials as well.

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I think there were several letters from corrections officials and from people who had supervised him in

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various programs he was in.

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I remember one in particular was the, which is referenced in our brief, I forget the name of the program, but it was a program where more than half the people don't successfully complete it.

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So this notion of the language saying letters the court has received from family members and friends could be under inclusive in terms of the letters that he actually received the court.

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It certainly, yes, it most assuredly has to be.

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If all he's mentioning is family and friends, and we know there are letters from people within the Bureau of Prisons supporting him and giving testament to his rehabilitation, then I think we would be overly reading it.

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We do have the letters.

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They're in the record.

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And they do mention his efforts at rehabilitation.

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And they are beyond letters from family and friends, as I recall.

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One letter from 53, J53, is from the drug treatment specialist.

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So apparently, Judge Lamberth was fully informed.

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Well, I'd still say that if his discretion is being exercised based on a mistake of law, it has to be remanded for that reason.

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And there's clear indication that he was operating under the assumption that this was

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a life without parole mandatory sentence, not a 20 year to life statutory exposure rate.

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And so for all those reasons.

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I don't see how that can affect, can benefit your position here because he's saying even under the misapprehension that the greater sentence was still available or I should say maybe required.

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He said he still wouldn't, he would not have reduced the sentence.

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So I'm not sure why you have a point here in saying that he didn't realize he could.

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Because he would have been required to realize he could and that he had the discretion.

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The essence of saying I believe this is an appropriate life without parole sentence and it's mandatory because the 8.4 benchmark has been exceeded indicates that he was operating under an incorrect

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um belief of what the law should be and therefore it doesn't want confidence mr zucker isn't that our our holding essentially in white i mean aren't we in the same scenario as the white case where the court uh who is doing this analysis has to be adequately or sufficiently apprised of what the range is what the actual law is and the fact

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that he thinks or says, I probably wouldn't change my mind in any event, seems like it's not sufficient.

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In white, we remanded, even though it was a very similar situation in which the court, we said the court needed to know that the relief was available, even if in his discretion he would not have

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Reduced the sentence or whatnot.

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It was still a procedural error that that we remanded for in white.

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Isn't this the same situation?

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I think white is on all fours in this case.

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I think it's almost it's virtually identical Uh, it's a different it's a different statute of conspiracy versus cce But it is the exact same scenario The court was confronted in white and it should result in the exact same

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remedy of a remand for reconsideration based on what the law is and an actual exercise in discretion on what the 3553A factors were, not that even if I would do the same.

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So yes, I agree 100% with the premise in your question, Judge, that white is on all fours and this case needs to be remanded to be consistent with white.

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To do otherwise would be error.

[00:15:46] Speaker 06:
All right, if there are no more questions, we'll give you a couple of minutes and reply.

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Mr. Smith.

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Thank you, Your Honor.

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Good morning and may it please the court, Peter Smith, on behalf of the United States.

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Appellant's First Step Act claim, the appeal of his First Step Act claim is untimely and in any event that

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claim lacks merit.

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And I'd like to go through the arguments in the order that appellant presented them this morning.

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Appellant first argued, citing a sentence or a phrase in the district court's opinion that it wouldn't consider the 3553A factors.

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And what the court actually said was,

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that it did not agree that a reduction is warranted.

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This is on Joint Appendix page 147.

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And it said Section 3553A lays out the factors.

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What the court was referring to was that it was not going to reduce appellant's sentence.

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But even if appellant's reading of that phrase is correct, the court goes on to apply those factors.

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In addition, before that, on Joint Appendix, page 146, the district court made clear that the earlier part of its ruling, which concerned eligibility, it recognized that

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it may be wrong about that ruling.

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So the court said at the beginning of the section of its order, that despite the court's suspicions of the popular interpretation of 404A, meaning whether a opponent was eligible for the reduction at all, it need not incorporate that issue into its holding.

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So the district court is expressly saying that there wasn't any sort of spillover from- But I'm sorry, Mr. Smith, even though he may have said that as sort of,

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prefatory language on page 147 in the paragraph that I'm actually most interested in, which begins, even if Palmer were eligible, he seems to import the erroneous consideration of the amount, the actual amount of the drugs rather than what White says one has to do.

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Now in fairness, White came later, so he wasn't rejecting

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this court's holding in that regard, but in this world that we find ourselves in with respect to appellate review of a First Step Act issue, I'm concerned that the court actually did make the same kind of analysis in the context of his discretionary review and that that is procedural error under what.

[00:18:47] Speaker 00:
So can you speak to that?

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I can have two responses your honor first of all under white I think it was entirely appropriate for the court to consider the large quantity of drugs that opponents conspiracy distributed more than 150 kilograms was the district court's finding.

[00:19:05] Speaker 04:
White makes clear that the court can consider various factors.

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And it says may consider.

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It doesn't require the court to consider any particular factor.

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It says may.

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I'm sorry, can I just be clear?

[00:19:21] Speaker 00:
So your suggestion is that in exercising discretion, the district court did not have to have an accurate assessment of what the actual mandatory minimum was.

[00:19:35] Speaker 00:
Doesn't he have to, even if he considers various factors, and I agree that he could consider the actual amount of drugs as a part of his discretionary review.

[00:19:45] Speaker 00:
Don't we say in Lawrence, and isn't it the case that the district court has to have the correct baseline in terms of an assessment of what the actual mandatory minimum is.

[00:20:01] Speaker 04:
I guess my response, your honor, is that this isn't a de novo sentencing.

[00:20:05] Speaker 04:
So the law that says that the district court's got to start out with properly calculating the current guideline range is not applicable.

[00:20:14] Speaker 04:
I do not read.

[00:20:15] Speaker 00:
No, I'm sorry.

[00:20:16] Speaker 00:
I'm not talking about the guidelines.

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I'm talking about the statutory mandatory minimum.

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When a court exercises their discretion to determine, in this case, whether to reduce a sentence that has been previously imposed

[00:20:30] Speaker 00:
and they're looking at the various factors, which is what you're talking about, doesn't one of those factors have to be what the mandatory minimum is accurately?

[00:20:42] Speaker 00:
What is the mandatory minimum in this case at this moment?

[00:20:46] Speaker 00:
Doesn't he have to assess that?

[00:20:49] Speaker 04:
I guess my answer is, it seems like it should be yes, but I think that what the court was doing here, and so maybe, I guess I'll answer it this way.

[00:21:00] Speaker 04:
What the court was doing in that section of the order the court has identified was saying that were appellant to be tried today, he would have been charged on the basis of this larger quantity of drugs.

[00:21:13] Speaker 00:
No, no, wait, can I, I'm sorry, before you do, I don't want to, I'm not asking you what Judge Lamberth was doing.

[00:21:20] Speaker 00:
I'm asking you a principle of law.

[00:21:22] Speaker 00:
When the court undertakes to exercise discretion of this nature to determine whether or not to reduce a sentence or change a sentence under the fair step act.

[00:21:34] Speaker 00:
Haven't we said, and isn't it the law that as a procedural matter, they have to know

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and consider what the mandatory minimum is, the new mandatory minimum.

[00:21:49] Speaker 00:
How could he possibly exercise his discretion without knowing, right?

[00:21:56] Speaker 00:
There's been a change in the law.

[00:21:57] Speaker 00:
The mandatory minimum has shifted.

[00:22:00] Speaker 00:
I know it's now 20 years, for example, but I've decided in the exercise of my discretion I'm going to give him the same sentence doesn't he have to know that first part about what the new mandatory minimum is.

[00:22:16] Speaker 04:
I mean, I'm not sure about that because of the way White is written.

[00:22:19] Speaker 04:
It says that the court may consider that factor.

[00:22:23] Speaker 00:
No, I'm talking about Lawrence.

[00:22:24] Speaker 00:
I'm talking about Lawrence, which is a more recent case in which we discussed the procedural requirements.

[00:22:32] Speaker 00:
If I can find it here.

[00:22:35] Speaker 04:
Under the First Step Act.

[00:22:39] Speaker 04:
You're talking about under the First Step Act and not.

[00:22:43] Speaker 00:
If I can find it.

[00:22:45] Speaker 00:
I mean, I just don't I don't understand.

[00:22:47] Speaker 04:
I mean, I understand the court's point and I guess it would be helpful to move on.

[00:22:53] Speaker 04:
I this court in its 2017 opinion.

[00:22:57] Speaker 00:
Recognize I'm sorry to interrupt you.

[00:23:01] Speaker 00:
I found Lawrence.

[00:23:02] Speaker 00:
And it says to that end, the district court must consider all relevant factors, including not only the factors outlined in 3553A, but potentially also new statutory minimum or maximum penalties.

[00:23:19] Speaker 00:
So it seems to me that the law is really clear

[00:23:23] Speaker 00:
that he needed to understand accurately what the new statutory minimum penalty was and exercise his discretion in light of that baseline.

[00:23:35] Speaker 00:
And if I'm right about that, where in this opinion is it clear that he actually did understand that there was a new statutory minimum penalty as a result of the First Step Act?

[00:23:49] Speaker 04:
Well, I think it's clear because appellant is urging him to apply that new the new minimum and the court is rejecting that argument.

[00:23:58] Speaker 00:
And the court is rejecting that in terms that suggests that he believes that there is no difference.

[00:24:04] Speaker 00:
That's the problem, right.

[00:24:05] Speaker 00:
He's rejecting it.

[00:24:07] Speaker 00:
I think not because he, you know,

[00:24:12] Speaker 00:
appreciates the difference, but it seems from this language in the paragraph that I'm talking about, that the court says, no, no, no, uh, Mr. Palmer, I'm rejecting it because it would make no difference.

[00:24:24] Speaker 00:
There's no difference in the mandatory minimum under this circumstance.

[00:24:29] Speaker 00:
Yeah.

[00:24:30] Speaker 00:
About that.

[00:24:31] Speaker 00:
Why isn't that procedural error that needs to be corrected on remand?

[00:24:38] Speaker 04:
Right, I understand the court's point.

[00:24:40] Speaker 04:
I think that what Judge Lamberth is saying is that he's in his exercise of discretion.

[00:24:46] Speaker 04:
He's saying that he can consider the fact that if appellant were tried today, he would have been charged with a larger quantity and he would have gotten the same sentence.

[00:24:56] Speaker 00:
Okay, but he doesn't say that in this opinion either.

[00:24:59] Speaker 00:
Number one, I don't see anything about if he would have been tried today, he would be charged and White

[00:25:06] Speaker 00:
forecloses that as a possible basis.

[00:25:10] Speaker 00:
In white, we say very clearly that the whole point, the reason why you go to the statute and you figure out the amounts in the statute is because the court can't get in a time machine and figure out what would have been charged during the time.

[00:25:28] Speaker 00:
So if you're resting on that argument, I don't know that it gets you very far.

[00:25:33] Speaker 06:
And let me follow up and ask

[00:25:36] Speaker 06:
of you, Mr. Smith, how do you read the sentence in the paragraph that Judge Jackson is talking about, the sentence that flat out says Palmer faces no disparity between the mandatory minimum he was sentenced under and the one he would have faced if sections two and three so forth?

[00:25:57] Speaker 04:
Yeah, I'm sorry, Your Honor.

[00:26:01] Speaker 04:
I believe that in the beginning of the order,

[00:26:04] Speaker 04:
The court explains that if a parent were tried today he would face the same sentence and I believe that he is in that sentence Judge Henderson just read he was referring to that I was just looking and I don't I can't find offhand.

[00:26:23] Speaker 04:
the part of the order where Judge Lamberth says that, I'd be happy to provide the court with a follow-up letter after the argument.

[00:26:30] Speaker 04:
I do believe that he explains that's why he thinks that, that he is saying that that's the mandatory minimum or that that's the required sentence, because if appellant were charged today, that's what he would face under, because he distributed so many drugs.

[00:26:48] Speaker 00:
And under white- Can I ask you, Mr. Smith, if you're right about that, if he's referencing back

[00:26:52] Speaker 00:
Isn't that an error I thought the government conceded that after white.

[00:26:58] Speaker 00:
He's wrong on that point, not about what would have been charged but he's wrong that you reference the amount that is actually the issue in this case, as opposed to the charging documents.

[00:27:10] Speaker 04:
Yeah, what the government was saying was that we agree and following White, it's clear that appellant is eligible for relief, but the court can still consider in its discretion that the large quantity of drugs appellant distributed, if he were charged with that quantity today would result in the same sentence appellant got back in

[00:27:34] Speaker 04:
you know, in the 1980s, so that there wouldn't be a change.

[00:27:38] Speaker 04:
And so that's why.

[00:27:39] Speaker 00:
How could he do that consistent with white?

[00:27:43] Speaker 00:
White said you can't, you know, prosecutors make decisions.

[00:27:48] Speaker 00:
There's bargaining decisions.

[00:27:50] Speaker 00:
There's no way the court can hypothesize what he would have been charged with.

[00:27:56] Speaker 00:
That was the, that was the reason why in white, we stick to the, we stick to the charging document and we don't go into this sort of hypothetical analysis, but your argument keeps coming back to that.

[00:28:08] Speaker 04:
And I don't know your honor I think we need to separate the eligibility determination, which I think is.

[00:28:16] Speaker 04:
I would agree with the court that that you can't consider that as to eligibility, but on the back end when the court is exercising its discretion and consider white makes clear that the court may consider the current guideline range, it may consider.

[00:28:37] Speaker 00:
these different things but it doesn't have to and it may consider may consider what it thinks the hypothesizes that the prosecutor may have done in the future about this it may consider the the hypothetical charging determinations of the prosecutor i think that it well i think what the court is doing is it's using its discretion

[00:29:02] Speaker 04:
based upon the large quantity of drugs that appellant distributed.

[00:29:07] Speaker 04:
And I think that it is within the court's discretion to consider what appellant would be charged with today if you were charged today.

[00:29:16] Speaker 04:
I think that is within the court's discretion.

[00:29:19] Speaker 04:
And I read that portion of White where White lists the various factors, including the 3553A factors, but beyond that,

[00:29:29] Speaker 04:
So I would point to that paragraph in the court's decision as allowing Judge Lamberth to have done this.

[00:29:36] Speaker 04:
And I understand the court's point about hypothesizing, but I think that that portion of White is talking about eligibility, not about exercising discretion in determining the ultimate sentence.

[00:29:53] Speaker 04:
The court can't hypothesize

[00:29:55] Speaker 04:
in determining whether something is a cover defense, for example, but the court later can think about what appellant would be charged with today based upon the large quantity in its exercise of discretion.

[00:30:11] Speaker 00:
So from your review of the opinion, where do you see the kind of hypothesis you're

[00:30:22] Speaker 00:
Is it in the sentence that Judge Henderson read?

[00:30:25] Speaker 00:
Because he does not say, as far as I can tell, that what I'm doing is hypothesizing what he would have been charged with today.

[00:30:35] Speaker 04:
I think that in Judge Lambert's order, that's in the earlier part of his order where... But that's the eligibility part.

[00:30:42] Speaker 00:
You can't have it both ways.

[00:30:44] Speaker 00:
So where does he say it?

[00:30:46] Speaker ?:
Here.

[00:30:46] Speaker 04:
I think he's, I think that read as a whole, he's referring back to that, but I understand your honor's point.

[00:30:52] Speaker 04:
He doesn't say that in that sentence, but I think he's referring back to the same heuristic that he used before, which is to say, what would appellant be charged with today based upon this huge quantity of drugs?

[00:31:06] Speaker 00:
Okay.

[00:31:07] Speaker 00:
So can I just, I see that your time is short.

[00:31:10] Speaker 00:
Can I get just a clear answer on

[00:31:14] Speaker 00:
whether it's the government's position that the district court in this case had to know and understand that there was a change in the law with respect to the mandatory minimum, not withstanding his interest in maintaining the same sentence because of the amount of drugs or whatever it is, is it procedural error for a district court to make this kind of determination

[00:31:42] Speaker 00:
with a mistaken understanding of what the mandatory minimum is.

[00:31:47] Speaker 04:
I have to review Lawrence, your honor, and I'm happy to file a letter with the government's position.

[00:31:54] Speaker 04:
My understanding up till now in preparation for this argument was that unlike a de novo sentencing, the court didn't have to, it could consider

[00:32:08] Speaker 04:
You know, for example, the properly calculated guideline range and I understand your point about the statutory mandatory minimum versus the guideline range but in preparation for the argument.

[00:32:19] Speaker 04:
I thought that the court can consider these things but doesn't have to and that that is what the decision is saying and I understand your point.

[00:32:28] Speaker 04:
about subsequently decided cases.

[00:32:30] Speaker 04:
And I'm happy to provide a letter to the court to supplement.

[00:32:34] Speaker 00:
And also about white, right?

[00:32:35] Speaker 00:
I mean, Mr. Zucker and I were talking at the end about whether this case is white, meaning white remanded because it appeared as though the penalty range had been modified by the Fair Sentencing Act.

[00:32:51] Speaker 00:
And the district court had discretion to impose a lower sentence as a result of the modification.

[00:32:58] Speaker 00:
he didn't articulate clearly, the court didn't know, or didn't say, or whatnot, that this discretion existed.

[00:33:12] Speaker 00:
And that was the basis for the remand.

[00:33:14] Speaker 00:
That's why we sent it back, regardless of whether or not you needed it.

[00:33:18] Speaker 00:
Is that not right?

[00:33:19] Speaker 02:
Yeah.

[00:33:21] Speaker 02:
because we cannot determine whether the district court gave any consideration to the mitigating evidence presented by the appellants in this case, the case must be remanded.

[00:33:31] Speaker 00:
Okay, but before that on pages 86 through 86 and 87, we're talking about statutory benchmarks that have an anchoring effect on the sentencing judges decision making and

[00:33:50] Speaker 00:
there were modified penalty ranges that the district court did not take into account.

[00:33:56] Speaker 00:
The Fair Sentencing Act would have altered the statutory penalties.

[00:34:01] Speaker 00:
The district court had that relief, but he did not indicate that he knew that.

[00:34:11] Speaker 00:
And this was the reason why we had to go to the charging document.

[00:34:20] Speaker 00:
I mean, we'll go back and take a look at white, but it seems to me that white was about whether the district court had discretion to consider it and that part of the white remand was that the court did not recognize that.

[00:34:39] Speaker 04:
If I may, Your Honor, my, my response is, I think that the remand and white was driven by the fact that, unlike in this case, this court could not determine whether the district court had looked at the proper factors at all.

[00:34:55] Speaker 04:
And in sentencing cases, as long as it's clear to this court that a district court has, for example, applied the 3553A factors, even if it doesn't mention each one of them, as long as it's clear that it's applied them and it knows that those are the factors it needs to apply, that is procedurally sufficient.

[00:35:17] Speaker 04:
And that the error in white and what caused the remand was that this court could not determine at all

[00:35:24] Speaker 04:
whether the court had looked at evidence of rehabilitation, for example.

[00:35:30] Speaker 04:
And here, this case is different for the reasons that you discussed earlier with appellants counsel.

[00:35:36] Speaker 04:
That is that the court expressly said it had considered these letters.

[00:35:40] Speaker 04:
The court expressly considered appellants evidence.

[00:35:44] Speaker 04:
And that was part of its order.

[00:35:46] Speaker 04:
And that was not the case in white.

[00:35:48] Speaker 04:
This court said clearly in white that it was remanding because

[00:35:52] Speaker 04:
it could not determine at all whether the district court had looked at the evidence of rehabilitation.

[00:36:00] Speaker 04:
And that distinguishes this case from White.

[00:36:02] Speaker 00:
But don't we have the issue that Mr. Zucker raised about whether or not the court considered rehabilitation while incarcerated?

[00:36:13] Speaker 00:
We have letters from families and friends, the court mentions on page 11,

[00:36:18] Speaker 00:
and the court talks about Mr. Palmer's conduct while incarcerated, the aggravating aspect of it, but there's no mention of any of the rehabilitative efforts in prison.

[00:36:36] Speaker 00:
So what do we do with that?

[00:36:38] Speaker 00:
Are you saying that's not sufficient for remand?

[00:36:42] Speaker 04:
Correct, I'm saying that the court need not remand in this situation because the court said it's carefully considered appellants evidence of rehabilitation, the letters provided the letters included letters of family but be and went beyond that.

[00:36:57] Speaker 04:
And this court's cases in sentencing cases.

[00:37:04] Speaker 04:
suggest that a remand would not be warranted for two reasons.

[00:37:08] Speaker 04:
First of all, the court has a great deal of discretion in making sentencing decisions.

[00:37:14] Speaker 04:
And cases like Locke say that as long as the court doesn't have to mention, for example, every 3553A factor.

[00:37:25] Speaker 00:
But is that because there's context?

[00:37:27] Speaker 00:
Was there a hearing in Locke?

[00:37:31] Speaker 00:
What I'm worried about is that whether you're relying on cases in which there was a hearing and therefore this court takes into account the fact that the district court actually did consider because there were arguments and evidence presented and we have a transcript and all of that.

[00:37:54] Speaker 00:
In this situation, there wasn't a hearing.

[00:37:56] Speaker 00:
So we're only going with what

[00:37:59] Speaker 00:
The court actually said it considered, I think, and I don't know whether we can assume that it considered things beyond what it actually said in this in this document.

[00:38:11] Speaker 04:
Right, and I think my response is that's not required.

[00:38:14] Speaker 04:
The court need not mention every single factor it considered.

[00:38:18] Speaker 04:
What this court looks to is whether it considered the proper factors at all.

[00:38:22] Speaker 04:
That is, whether it knew that it was supposed to apply the 3553A factors and did, whether it considered appellants arguments at all.

[00:38:33] Speaker 04:
It doesn't have to mention every single factor.

[00:38:37] Speaker 00:
I guess I'm not suggesting that it has to mention every factor, but something like rehabilitation during prison when the court mentions that during prison he received sanctions for disciplinary infractions.

[00:38:54] Speaker 00:
And there's no other indication that the letters from the actual correctional officials were considered by the court.

[00:39:04] Speaker 00:
I mean, if he addresses one factor, but not fully, he says only the aggravating things related to it and not the mitigating things, does that change your argument?

[00:39:16] Speaker 04:
No, because, and I don't think that's what the court did here in any event, because the court decided to carefully consider the letters.

[00:39:24] Speaker 00:
No, no, no, I'm sorry.

[00:39:25] Speaker 00:
It says letters from family members and friends.

[00:39:29] Speaker 00:
I'm talking about the rehabilitation

[00:39:32] Speaker 00:
correctional officials letters, they're not mentioned here.

[00:39:36] Speaker 04:
Right, but they are in the record and they were part of the pleadings that the court considered and I think those fall into the category of, for example,

[00:39:47] Speaker 04:
mentioning that the court applied the 3553A factors, but not mentioning every single factor.

[00:39:54] Speaker 04:
That is something that this court has repeatedly said is permissible.

[00:39:57] Speaker 04:
So I don't think that the court's required to go through every piece of evidence that appellant argued or presented and list those in order for its decision to be procedurally sound or in order

[00:40:17] Speaker 04:
to not warrant a, in order to not warrant a remand.

[00:40:20] Speaker 04:
I don't think that, I think there is no procedural requirement that the court list all of the evidence.

[00:40:27] Speaker 04:
And the evidence that your honor mentioned is in the record.

[00:40:31] Speaker 04:
It was, you know, they're attached to the pleadings and the district court would have read those things.

[00:40:36] Speaker 06:
So- All right, I think we have your argument on that Mr. Smith.

[00:40:40] Speaker 06:
I wanna just briefly go back to White

[00:40:43] Speaker 06:
and to the question I think Judge Jackson originally had from White, and that is this.

[00:40:53] Speaker 06:
Your argument is that White is different because the judge there didn't consider the 3553 factors.

[00:41:01] Speaker 06:
I think Judge Jackson is saying, at least if she's not, I am, that Judge Edwards was very careful to set out how we analyze

[00:41:13] Speaker 06:
of this new statute.

[00:41:15] Speaker 06:
And he said, not once, but several times, I don't have it in front of me, that we don't look at the judge found to determine the baseline.

[00:41:26] Speaker 06:
We don't look at the judge found or jury found amounts.

[00:41:31] Speaker 06:
We look at the statutory mandatory minimum back then.

[00:41:36] Speaker 06:
Now, Judge Lamberth did not do that.

[00:41:42] Speaker 06:
Even though he did not make the mistake that the trial judge made in White, if he made a mistake under White's description of, you're not arguing that

[00:42:00] Speaker 06:
that White is wrong about the statutory mandatory minimum being the baseline, I don't think.

[00:42:09] Speaker 06:
But I wanna get clear, if you're not arguing that, are you arguing that when Judge Lamberth did not use that, and we know that because he said there's no disparity, that this is harmless error?

[00:42:30] Speaker 04:
I'm not exactly arguing it's harmless.

[00:42:32] Speaker 04:
I guess my argument is that he understood because Appellant was making this argument.

[00:42:39] Speaker 04:
So he understood that argument and he understood the range that the defense was urging him to apply.

[00:42:49] Speaker 04:
But he didn't agree with it.

[00:42:50] Speaker 06:
And in his defense, this was before White.

[00:42:53] Speaker 06:
So he interpreted it a different way.

[00:42:56] Speaker 06:
And then White comes along and says,

[00:43:00] Speaker 06:
No, this is what this statute says and this is what it means.

[00:43:05] Speaker 04:
Oh, I understand that your honor's point.

[00:43:07] Speaker 04:
And I think that what Judge Lamberth was doing was to say, I understand the defense argument and to make a different point in exercising his discretion, which is I'm also permitted to consider the vast quantity of drugs the conspiracy distributed and that if appellant were charged today, he would be charged

[00:43:30] Speaker 04:
would receive the same sentence because of that amount.

[00:43:33] Speaker 04:
So, although I hear, this is the way I interpret Judge Lambert's order.

[00:43:38] Speaker 04:
So I hear what the defense is arguing, but I reject it in my discretion, because if appellant were

[00:43:47] Speaker 04:
tried and convicted today, the government would have charged him with a higher amount and he would have received the same sentence.

[00:43:53] Speaker 04:
So, and I understand the court's point about that sentence.

[00:43:56] Speaker 04:
And my response is, I think earlier in the opinion- Right, Judge Jackson.

[00:44:01] Speaker 00:
Judge Jackson, could you take over for just a minute?

[00:44:03] Speaker 00:
Yes, yes.

[00:44:04] Speaker 00:
Thank you.

[00:44:05] Speaker 00:
Mr. Smith, the only question that I'm struggling with in your way of framing what you think Judge Lambertz was saying is that I still think you might have a white problem

[00:44:17] Speaker 00:
Because in that case, it says, a court cannot determine using judge or jury found drug quantities what effect the Fair Sentencing Act would have had on a defendant's sentence.

[00:44:30] Speaker 00:
They go on to quote the Third Circuit.

[00:44:33] Speaker 00:
You can't account for the discretionary authority of the prosecutor or court.

[00:44:39] Speaker 00:
So even if Judge Lamberth was doing what you're saying, that he was saying in the exercise of my discretion,

[00:44:46] Speaker 00:
determining that there would be no difference because the government would still have charged him with the 8.4 in light of the actual amount.

[00:45:00] Speaker 00:
I don't know how you can square that with what this court has said about what the First Step Act requires.

[00:45:07] Speaker 00:
And the only thing I hear you saying is it's because you think that analysis is confined to the eligibility part of it.

[00:45:16] Speaker 00:
but I don't know why that should be the case if in the discretionary determination, you have to get the baseline right.

[00:45:26] Speaker 00:
You separate those two out, but I think the linchpin is the very first question that I asked you, which is when you're making a discretionary determination, do you have to have an accurate assessment of what the law says about the mandatory minimum?

[00:45:44] Speaker 04:
When a court is making a discretionary determination, it has to understand what it's choosing between.

[00:45:51] Speaker 04:
So that is true.

[00:45:54] Speaker 04:
But White also says, and this is where I was saying before, I'm a little confused about this, White also says when the court is exercising its discretion, it may consider

[00:46:07] Speaker 04:
the new guideline range, but it doesn't have to consider that.

[00:46:11] Speaker 00:
So what we say in Lawrence, Lawrence is a more as a 2021 case.

[00:46:17] Speaker 00:
Um, and I'm looking at page, I guess, for 15, one F four.

[00:46:22] Speaker 00:
Oh, wait, I don't know where I am.

[00:46:24] Speaker 00:
Um, sorry.

[00:46:26] Speaker 00:
Uh, page 43.

[00:46:27] Speaker 00:
Um, we, we talk about what it is that the district court in a first step back situation has to consider.

[00:46:35] Speaker 00:
all relevant factors, the new statutory minimum or maximum penalties, current guidelines, post-sentencing conduct and other relevant information about a defendant's history and conduct.

[00:46:49] Speaker 00:
So it seems to me to both undercut what you're saying about maybe they don't have to take into account the new minimum, but also the whole argument about what does the court have to say with respect to the 3553A factors and mitigating that the white is pretty clear post-sentencing conduct, it says.

[00:47:11] Speaker 00:
And so to the extent that Judge Lamberth does not indicate in his order

[00:47:16] Speaker 00:
that he's actually taken into account the rehabilitative conduct of this defendant while in prison?

[00:47:26] Speaker 00:
Isn't that a basis under Lawrence for remand?

[00:47:32] Speaker 04:
If he didn't take, I think the latter part

[00:47:35] Speaker 04:
your question to answer that.

[00:47:37] Speaker 04:
I think if the court didn't consider it at all, it would be a basis for remand.

[00:47:42] Speaker 04:
And as to the earlier part of your question about the mandatory minimum, I mean, Lawrence does seem pretty clear.

[00:47:48] Speaker 04:
As I mentioned before, when I was preparing for argument, I did not look at Lawrence and I was not aware of that.

[00:47:57] Speaker 00:
All right, so if I'm right about Lawrence then, you weren't aware of it, wouldn't Judge Lamberth had to have indicated in this opinion

[00:48:05] Speaker 00:
that instead of saying something sort of cryptic about no disparity between the mandatory minimums, wouldn't he have had to say something like, I understand that the new mandatory minimum post first step act is 20 years in light of the Fair Sentencing Act.

[00:48:25] Speaker 00:
Nevertheless, because he had a hundred kilograms, I mean, you're correct that this was a serious drug dealer.

[00:48:32] Speaker 00:
This was a big problem.

[00:48:35] Speaker 00:
for the community and the like.

[00:48:37] Speaker 00:
Judge Lamberth could have, I think, said, I'm still going to give him the same life sentence in my discretion, but he had to, as a procedural matter, acknowledge the change in the mandatory minimum.

[00:48:53] Speaker 04:
I think he had to be aware of it.

[00:48:54] Speaker 04:
And so I guess our difference now is just that if the court is aware of something and this goes back to the point I was making before about cases like lock and what's procedurally required in sentencing that as long as the court is aware of it.

[00:49:09] Speaker 04:
I don't think

[00:49:11] Speaker 04:
that the court is required in the way that a de novo sentencing would require the court to lay out the guideline range as a starting point.

[00:49:20] Speaker 04:
I don't think the court is required to start its order by saying, here's the new mandatory minimum, here's the new guideline.

[00:49:29] Speaker 04:
I don't think that's a procedural requirement, but I think the court has to be aware of it.

[00:49:34] Speaker 00:
And what about this order makes you think he was aware?

[00:49:37] Speaker 00:
I don't see 20 year man-men anywhere in this.

[00:49:41] Speaker 04:
Right, and I think it goes back to the argument I was making before, which is that the court doesn't have to articulate every single point.

[00:49:52] Speaker 04:
The defense is raising that argument and it's urging the court to adopt that revised the new guideline range, which is exactly what appellant was doing.

[00:50:02] Speaker 04:
And the court rejects that and said, for a different reason, it says, look, there was such a large quantity of drugs that blinks reality to just apply the new range.

[00:50:16] Speaker 04:
What we need to do is look at what appellant would have been charged with today.

[00:50:20] Speaker 04:
because of this large quantity.

[00:50:22] Speaker 04:
And what I'm saying is that's permissible as an exercise of the court's discretion.

[00:50:27] Speaker 00:
Yes, but I guess the question is, is that really what Judge Lamberth was doing?

[00:50:31] Speaker 00:
And to the extent that there's some confusion about that, let's take a different avenue here.

[00:50:38] Speaker 00:
So you read this to incorporate all of the arguments that you just made or all of the statements and analysis that you just made.

[00:50:46] Speaker 00:
I'm saying, I don't see that here.

[00:50:48] Speaker 00:
So if there's confusion about what Judge Lamberth did, I've seen cases, our cases, where we send it back, we remand for the district court to clarify.

[00:50:59] Speaker 00:
Why wouldn't that be appropriate in this situation?

[00:51:03] Speaker 04:
Because here you do know that the court was aware of it because the defense was making that argument.

[00:51:11] Speaker 04:
I think if

[00:51:13] Speaker 04:
the court, I think the bottom line is S in white.

[00:51:15] Speaker 04:
If this court thinks that the district court is unaware of something or it's not clear at all that the court considered or was aware of something, then remand is warranted.

[00:51:27] Speaker 04:
And so the only difference between I think what you're suggesting and what I'm suggesting now is that having rejected defendant's argument for precisely that thing, which is,

[00:51:42] Speaker 04:
the range that would have applied, the new range that would have applied to the drug quantity found by the jury in appellant's case in the 1980s, having rejected that, you know that the court was aware of it and did consider it.

[00:51:58] Speaker 00:
Except Mr. Smith, in white itself, I understood the defense to be making arguments, and we still remanded.

[00:52:06] Speaker 00:
So your theory of so long as the argument is presented to the court and the court is aware of it,

[00:52:12] Speaker 00:
that's enough to count in terms of our assuring ourselves that the court considered it.

[00:52:21] Speaker 00:
And it wasn't enough in white, right?

[00:52:24] Speaker 04:
I think the court has to acknowledge it.

[00:52:26] Speaker 04:
And I think the court has here.

[00:52:28] Speaker 04:
And what I can point to, and I know Judge Henderson pointed to that sentence,

[00:52:35] Speaker 04:
what I think the court was saying in that sentence was referring back to what it had said before, which is if appellant were tried today, this is what would happen.

[00:52:45] Speaker 04:
So therefore, there is no disparity.

[00:52:48] Speaker 04:
So I understand the court's point.

[00:52:50] Speaker 04:
And I think there is enough on this record to say that Judge Lamberth was aware of how his- Right, but you said aware at one point and then you said, but then he has to acknowledge it.

[00:53:03] Speaker 00:
So what rule

[00:53:06] Speaker 00:
Are we to take away from this scenario or what rule are you asking us to fashion?

[00:53:15] Speaker 00:
Is it just that if the court was presented with certain arguments by a defendant and therefore he's aware of it, even if it's not mentioned and there's no hearing and it's not mentioned in the actual order, we know he's taken it into account, that doesn't seem consistent.

[00:53:35] Speaker 00:
with our procedural holdings in a number of cases in which we say the district court doesn't mention it.

[00:53:45] Speaker 00:
Maybe arguments were made about it, but we need to send it back for clarification.

[00:53:51] Speaker 04:
I think the best answer I can give the court is what this court has done previously and in by analogy.

[00:53:59] Speaker 04:
when applying the 3553A factors, this court has said, you know, as long as the court acknowledges the factors or says it's applying them, it doesn't have to go through the factors.

[00:54:10] Speaker 04:
It doesn't have to apply each or say it's applying each factor.

[00:54:14] Speaker 04:
It doesn't have to analyze each factor in its order.

[00:54:18] Speaker 04:
It just has to say that that's what it's doing.

[00:54:21] Speaker 04:
And I think that there is enough in this order for that.

[00:54:27] Speaker 04:
I think we've got your position.

[00:54:31] Speaker 02:
Judge Ginsburg, did you have a question?

[00:54:33] Speaker 02:
I was wondering, yes, my question is whether there's any doubt about the, any remaining doubt about the issue and what you've been discussing.

[00:54:44] Speaker 02:
I think it's pretty clear now.

[00:54:46] Speaker 06:
I think the positions are clear.

[00:54:47] Speaker 06:
All right.

[00:54:49] Speaker 06:
Thank you, Mr. Smith.

[00:54:50] Speaker 06:
Mr. Zucker, why don't you take no more than a couple minutes.

[00:54:57] Speaker 06:
We can't hear you.

[00:55:02] Speaker 01:
Apologize.

[00:55:03] Speaker 01:
I think, in essence, the prosecutor made an interesting comment.

[00:55:07] Speaker 01:
He said, what I think Judge Lambert was saying was that if this case were tried today, he would have been charged differently, and the jury would have found that.

[00:55:15] Speaker 01:
And I think Mr. Smith is right.

[00:55:16] Speaker 01:
That is what Judge Lambert is saying.

[00:55:18] Speaker 01:
But that's what White tells us cannot be done here, because you cannot look at what might have happened or what you think was likely to have happened.

[00:55:26] Speaker 01:
You have to look at what happened.

[00:55:27] Speaker 01:
What happened was he was convicted under a statute

[00:55:30] Speaker 01:
that the mandatory minimum has changed.

[00:55:32] Speaker 01:
And that was not clear until the White decision issued.

[00:55:35] Speaker 01:
And the lack of clarity, as Judge Henderson pointed out, is reflected in Judge Lambert's decision with a sentence that says, Palmer faces no disparity between the mandatory minimum he was sentenced under and the one he would have faced if sections two and three of the Sentencing Act were in effect today, or were in effect at the time.

[00:55:52] Speaker 01:
And that's just categorically wrong.

[00:55:55] Speaker 01:
If those sections were in effect at the time,

[00:55:58] Speaker 01:
he would be looking at 20 to life.

[00:56:01] Speaker 01:
And the proof that Judge Lamberth was not aware of that is in that sentence.

[00:56:05] Speaker 01:
And for that reason, this case needs to be remanded.

[00:56:09] Speaker 01:
Is Judge Lamberth able to consider the quantity and say therefore life without parole is the appropriate sentence?

[00:56:15] Speaker 01:
Of course he could.

[00:56:17] Speaker 01:
But in this record, we clearly see that he was making his decisions based on an error of law.

[00:56:23] Speaker 01:
And when a judge bases a decision on an error of law, it is

[00:56:30] Speaker 01:
almost virtually automatically an abuse of discretion.

[00:56:34] Speaker 01:
We can't say that he exercised discretion because he was under the misnum apprehension or the misimpression that the same mandatory minimum would have applied.

[00:56:42] Speaker 01:
Could it have applied if the 8.4 was used in the indictment instead of the 1,500 grams?

[00:56:48] Speaker 01:
Yeah, it could have applied, but we don't know it.

[00:56:50] Speaker 01:
And we have to look at what he was convicted of, and that's why we have to amend it back for the reconsideration.

[00:56:58] Speaker 01:
We do so knowing that there's a good chance that Judge Lambert might come to the same conclusion, but at least we know that if it's remanded back, he has to exercise his discretion, and we know that his discretion was not exercised here because he felt the same mandatory minimum applied.

[00:57:12] Speaker 01:
I think we also have to accept him at his word when he says he is declined to apply the 3553 factors.

[00:57:20] Speaker 01:
He was, and there was some reference to them that even if it was, he would come to the same conclusion.

[00:57:27] Speaker 01:
But he reached that conclusion, assuming that the same mandatory minimum would have applied.

[00:57:33] Speaker 01:
For that reason, it needs to be remanded.

[00:57:35] Speaker 01:
It needs to be remanded, otherwise it's completely inconsistent with White.

[00:57:39] Speaker 06:
Anything else?

[00:57:42] Speaker 06:
Just briefly, and that's this.

[00:57:45] Speaker 06:
I know if he bases a decision on a legal error that's discretionary, but he made an alternative ruling.

[00:57:52] Speaker 06:
He said, he acknowledged, I could be wrong about that because he said, if I'm wrong and he's eligible, I still would not reduce the sentence.

[00:58:03] Speaker 06:
So.

[00:58:06] Speaker 01:
I understand.

[00:58:07] Speaker 01:
That makes a difference.

[00:58:10] Speaker 01:
I understand your point, Judge Henderson, but I think that's an overly generous reading of his comment that even if this court were to consider the 3553 factors, that's not the same as saying, I have considered them.

[00:58:23] Speaker 01:
And it's certainly there's no indication from the record here that he has considered all of them.

[00:58:28] Speaker 01:
If anything, there's question about that.

[00:58:31] Speaker 01:
And for that reason, I think it needs some evidence.

[00:58:33] Speaker 02:
Mr. Tucker, I think you could probably find innumerable opinions of this court

[00:58:38] Speaker 02:
in which we say we're, we don't have to reach this, but if we were to reach it, here's what we would think or what we would say.

[00:58:45] Speaker 02:
We do that without, with some regularity.

[00:58:49] Speaker 02:
Doesn't mean we haven't.

[00:58:50] Speaker 01:
But I don't think that's the same.

[00:58:51] Speaker 01:
I don't think that the same is saying I have done that.

[00:58:55] Speaker 01:
And especially when he puts in the context, I declined to do that.

[00:58:59] Speaker 01:
And even if I would, I would probably come to the same decision is not the same.

[00:59:03] Speaker 01:
And I don't think we, the record reflects

[00:59:06] Speaker 01:
that he has done that in all fairness to him.

[00:59:10] Speaker 02:
There's no indication.

[00:59:12] Speaker 02:
He didn't say would probably come to that conclusion.

[00:59:15] Speaker 02:
That's the conclusion he would reach.

[00:59:19] Speaker 01:
But I think we also have to, I agree.

[00:59:22] Speaker 01:
He says, even if I were to consider the 3553 factors, I would come to the same, I believe the sentence was appropriate.

[00:59:29] Speaker 01:
But at the time he made that finding judge, he was under the error of law

[00:59:35] Speaker 01:
that this was still a mandatory life without parole.

[00:59:39] Speaker 02:
No significance I can find in any of the silent opinions that would bear upon that, give that substance.

[00:59:47] Speaker 02:
Is the passage in white about an anchoring effect?

[00:59:53] Speaker 01:
I think it's more than an anchoring effect here because it's the impression based on when reading the context of the sentence that precedes it is that there is no mandatory minimum difference between

[01:00:05] Speaker 01:
what he did in 2000, whenever it was, 20, and what would have happened in 1986.

[01:00:11] Speaker 01:
It's fundamentally flawed.

[01:00:13] Speaker 00:
It's fundamentally flawed.

[01:00:16] Speaker 00:
Isn't that pretty classic procedural error that appellate courts reverse if the district court gets the mandatory minimum incorrect, for example, you know, whenever there's a mandatory minimum,

[01:00:33] Speaker 00:
courts are exercising their discretion if they go above the mandatory minimum when they sentence.

[01:00:40] Speaker 00:
But I had understood that it is classic procedural error if the court were to recite the wrong mandatory minimum prior to exercising their discretion, and that they couldn't necessarily save it by saying, well, I don't know if the mandatory minimum is five years or 10 years, but it doesn't matter because I'm going to give this guy 20 years

[01:01:03] Speaker 00:
in any event, because he's so terrible.

[01:01:07] Speaker 00:
My understanding is that even if the facts are such that the court is completely within its discretion to give the defendant 20 years, as a procedural matter, appellate courts require them to understand what the actual scope of their discretion is, meaning what the actual mandatory minimum is.

[01:01:30] Speaker 00:
And if they are inaccurate,

[01:01:32] Speaker 00:
If the district court says the mandatory minimum in this case is 10 years, when it's really five, and I'm gonna give this guy 20 years, and perhaps even if the court were to say, it's so hard to figure out the mandatory minimum, could be five, could be 10, but in the alternative, regardless of what it is, I'm gonna exercise my discretion and give him 20, even if it turns out it was five,

[01:02:02] Speaker 00:
That's still procedural error, right, from the standpoint of not having a correct assessment of what the actual mandatory minimum is.

[01:02:12] Speaker 01:
Yes.

[01:02:14] Speaker 01:
Categorically, yes.

[01:02:15] Speaker 01:
I agree with you.

[01:02:16] Speaker 01:
And I think the proof that that is what occurred here is in that sentence when he says there's no disparity between the mandatory minimum today and what was applicable then.

[01:02:26] Speaker 01:
And I think that ends the case right there.

[01:02:28] Speaker 01:
That's decisive.

[01:02:29] Speaker 01:
That shows that he made the error.

[01:02:32] Speaker 01:
And so we can't say under that circumstances, well, it's saved by an abusive discretion standard because no matter what the mandatory minimum is, this guy should get life.

[01:02:42] Speaker 01:
So yes, I agree 100%.

[01:02:43] Speaker 02:
It seems to me that the hypothetical takes you further than you want to, need to, or probably should go.

[01:02:53] Speaker 02:
If the judge said, it could be five, it could be 10, it's difficult to figure out, but it doesn't matter because I would give him 20 in any event.

[01:03:03] Speaker 02:
You don't need that.

[01:03:06] Speaker 02:
You don't need to say that that's insufficient, right?

[01:03:09] Speaker 02:
Because what you're saying is he didn't know that there might be any change at all.

[01:03:16] Speaker 01:
Well, he was specifically saying he didn't think there was any change.

[01:03:20] Speaker 01:
He said there's no difference.

[01:03:21] Speaker 01:
Fair enough.

[01:03:21] Speaker 02:
So even further from the hypothetical, you don't need to endorse that.

[01:03:26] Speaker 02:
And either way is quite illogical.

[01:03:28] Speaker 02:
I don't know whether it's five or 10.

[01:03:30] Speaker 02:
It would be complicated to figure it out.

[01:03:32] Speaker 02:
So what's the point, since I'm going to give him 20, even if it's five?

[01:03:36] Speaker 02:
You don't need that.

[01:03:39] Speaker 01:
Well, whether we need it or not, I think, Judge.

[01:03:42] Speaker 00:
I think the hypothetical was testing the proposition of whether or not the ability to use his discretion saves or

[01:03:54] Speaker 00:
keeps us from remanding based on an error of law about the calculation of the mandatory minimum.

[01:04:02] Speaker 00:
So yes.

[01:04:02] Speaker 02:
But there isn't an error of law in saying, I don't know whether it's 5 or 10, but it doesn't matter.

[01:04:08] Speaker 02:
That's just saying it's inefficient to go down that rabbit hole because I'm going to come out at 20 no matter what.

[01:04:14] Speaker 00:
I see.

[01:04:14] Speaker 00:
So if the hypothetical were it is actually 5, everybody knows it's 5, but the court says it's 10,

[01:04:23] Speaker 00:
or vice versa.

[01:04:25] Speaker 00:
It's 10, and the court says it's five.

[01:04:27] Speaker 00:
And then he says, in the alternative, I'm going to give him 20.

[01:04:31] Speaker 00:
I've calculated it at five.

[01:04:34] Speaker 00:
That's absolutely erroneous, or vice versa.

[01:04:38] Speaker 00:
Absolutely erroneous.

[01:04:39] Speaker 00:
But alternatively, I'm exercising my discretion, and I'm going to give him 20.

[01:04:44] Speaker 00:
Do we have a different result, Mr. Zucker, or do we still remand because he has gotten the baseline wrong?

[01:04:52] Speaker 01:
As I understand it, you have to remand if there's a statutory construction error.

[01:04:58] Speaker 01:
That's a fatal error.

[01:05:00] Speaker 01:
But here, the hypotheticals are interesting.

[01:05:02] Speaker 02:
Even if the judge's error wasn't.

[01:05:05] Speaker 02:
Wait, wait.

[01:05:05] Speaker 06:
Judge Ginsburg.

[01:05:07] Speaker 06:
Go ahead, Judge Ginsburg.

[01:05:09] Speaker 02:
What you're saying, Mr. Zucker, is that even if the judge erred in thinking it was only five when it was 10, there's no logic to remanding that at all.

[01:05:22] Speaker 01:
The hypotheticals are interesting, but I think the issue before us is this case.

[01:05:26] Speaker 02:
And here, the judge made an error.

[01:05:29] Speaker 01:
I agree.

[01:05:30] Speaker 01:
But I think the hypotheticals exemplify the point.

[01:05:34] Speaker 01:
But the point is here, Judge Lamberth was simply incorrect, ruling that the same mandatory minimum applied.

[01:05:41] Speaker 01:
And because of that, as well as the other factors, this case needs to be remanded for him to exercise his discretion.

[01:05:49] Speaker 01:
May he come back the exact same way?

[01:05:50] Speaker 01:
That's a very good chance.

[01:05:52] Speaker 01:
There's a very good chance it will happen.

[01:05:53] Speaker 01:
But we need to have that happen before we say, oh, well, that's what he's allowed to base his decision on an error of law.

[01:06:03] Speaker 06:
All right.

[01:06:04] Speaker 06:
If there are no more questions, thank you, gentlemen.

[01:06:09] Speaker 06:
You both did an outstanding job answering questions that you were literally peppered with.

[01:06:20] Speaker 06:
Adam, clerk, if you'll give us a.