[00:00:00] Speaker 01:
Case number 22-36, the United States of America versus Deshawn E. Good at balance.

[00:00:07] Speaker 01:
Mr. Rosen's White for the balance, Dr. Goodhands for the ability.

[00:00:14] Speaker 03:
Good morning, counsel.

[00:00:15] Speaker 03:
Good morning, your honor.

[00:00:17] Speaker 01:
May it please the court, it is infinitely more difficult to find a valid waiver based on a silent record.

[00:00:27] Speaker 01:
This holding from the First Circuit of Correa Torres

[00:00:30] Speaker 01:
could guide the court in the resolution of this map.

[00:00:33] Speaker 01:
Because as to the single most salient and significant fact, whether or not the district court had the authority and power to vary from the guideline recommendation upward, this record is absolutely silent as to any advice to Mr. Hood as to that possibility.

[00:00:51] Speaker 04:
Why do you say can't vary from the guideline when you're still within the statute?

[00:00:57] Speaker 01:
The guideline recommendation here, Your Honor, would have sentenced him to three months.

[00:01:02] Speaker 01:
And it's a recommendation.

[00:01:05] Speaker 01:
That's right.

[00:01:05] Speaker 01:
But he was never advised, Your Honor, that those recommendations were not binding on the threatened deed.

[00:01:11] Speaker 04:
But generally, when you have, for example, a sentencing guideline,

[00:01:16] Speaker 04:
and there's a negotiated plea and that's the time at which the judge would understand specifically.

[00:01:24] Speaker 04:
that the defense counsel and the prosecuting authority have negotiated a sentence.

[00:01:31] Speaker 04:
And then if the judge does not accept that sentence, then perhaps the admissions, for example, guilty plea and or supervised release can be withdrawn because the judge didn't accept the negotiation.

[00:01:43] Speaker 04:
Here we have two parties agreeing to a recommendation.

[00:01:48] Speaker 04:
and then the judge informing Mr. Hood that he could go up to the statute.

[00:01:55] Speaker 01:
With respect, Your Honor, that's the timeline that you just posited is inaccurate.

[00:02:01] Speaker 01:
Had the district court said before Mr. Hood admitted to the violations,

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You do so knowing that there's a possibility that I might very upward, we would not be here.

[00:02:11] Speaker 01:
But in fact, the colloquy with Mr. Hood in which he admitted the violations of the supervised release was nonexistent.

[00:02:21] Speaker 01:
And it was only after he had admitted the violations

[00:02:25] Speaker 01:
that the district judge then said, well, you know, I am considering rejecting that recognition.

[00:02:30] Speaker 04:
This is if it's a prosecuting agency, they have to give the defendant notice that they would seek an upward variance.

[00:02:37] Speaker 04:
But what about the judge?

[00:02:38] Speaker 01:
Your honor, this case is almost exactly like LeBlanc, which is the first of the seven certain case in which, as the as the court there said, much to everyone's surprise,

[00:02:49] Speaker 01:
The court went up from an 18-month recommendation to the 24-month maximum.

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And that was in an instance in which it was clear that the defendant did not understand the possible penalty he faced by stipulating to the violation.

[00:03:04] Speaker 01:
Thus, he was unaware, unaware of the true consequences of relinquishing his rights.

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Indeed, Mr. Hood's own experience is that everything that had happened to him before this event suggested to him that the guidelines were indeed

[00:03:19] Speaker 01:
binding, or at least a cat, at his first sentencing, at his first probation notification.

[00:03:25] Speaker 01:
In every instance, he was told in effect that the guidelines were maximum.

[00:03:30] Speaker 01:
Indeed, the probation officer said exactly that.

[00:03:33] Speaker 01:
At the July 6, 2022 hearing, she said his max is six months.

[00:03:40] Speaker 01:
Now, she was wrong.

[00:03:41] Speaker 01:
It was only three months.

[00:03:42] Speaker 01:
But he was told that that was a maximum, being advised of that

[00:03:47] Speaker 01:
informed his judgment, he went into that hearing, understanding that there was going to be a joint recommendation for three months, and anticipating that that was what the court would give him.

[00:03:58] Speaker 01:
He was unaware of the least possible.

[00:04:00] Speaker 04:
You know, at the end of the day, you're talking about a defendant who admits to the conduct.

[00:04:05] Speaker 04:
And they were given the opportunity per charge, and then admits to it, but then doesn't like the sentence.

[00:04:14] Speaker 01:
We're talking about a defendant who relinquishes rights to present a defense to those charges in exchange for what he thought was a bargain.

[00:04:21] Speaker 01:
You're absolutely right.

[00:04:22] Speaker 01:
But that is true of every sentence, Your Honor, in criminal court.

[00:04:26] Speaker 01:
And yet we would not say that a Rule 11 colloquy, for example, in a different context, could be disposed of simply because of the fact that the defendant's admission of guilt was, in effect, a relinquishment of those rights.

[00:04:39] Speaker 01:
Quite to the contrary, we say that a defendant, before he relinquishes rights, must, here under the totality of the circumstances, be aware of that which she is giving up.

[00:04:52] Speaker 01:
Thus, for example, in Correa Torres, where the defense counsel said that there was no conduct, there was no injury as to rights of guilt.

[00:05:02] Speaker 01:
Notwithstanding that, there was no finding or determination of the knowing and voluntary nature of the relinquishment.

[00:05:08] Speaker 01:
There was no clarity that the defendant understood the consequences of relinquishing his right.

[00:05:13] Speaker 01:
There had no hesitation or little hesitation, I should say, in reversing the sentence and remanding this case.

[00:05:22] Speaker 01:
I would respectfully submit that there is no case that you can present in which a defendant

[00:05:28] Speaker 01:
without any colloquy whatsoever.

[00:05:30] Speaker 01:
The entire proceedings before this hearing were six lines of discussion between the court and Mr. Hood's defense counsel.

[00:05:40] Speaker 01:
No colloquy of any sort.

[00:05:42] Speaker 01:
The district court went to the, tell me your violations without so much as an advice.

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the government will point to other circumstances.

[00:05:52] Speaker 03:
Six lines.

[00:05:54] Speaker 03:
No, no, I'm interrupting you.

[00:05:56] Speaker 03:
That's okay.

[00:05:57] Speaker 03:
Six lines of testimony in this or colloquy in this hearing, but there was a motion by the probation office.

[00:06:08] Speaker 03:
And then there was a hearing, an initial hearing before the magistrate judge.

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And then there was a first hearing before judge McFadden.

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and the defendant had counsel in all of this.

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If we look to the entire sequence, it seems pretty clear.

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He has a very good sense that his upward exposure is 24 months.

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That's what they say time and again.

[00:06:34] Speaker 03:
They say this is the guideline range and the statutory maximum is 24 months.

[00:06:40] Speaker 01:
With respect, Your Honor, advice as to the maximum is, in our judgment, in my

[00:06:46] Speaker 01:
respectful judgment cuts the other way.

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I know, for example, that this court may extend my oral argument for the next hour if it chooses to do so.

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But I have absolutely no expectation of that.

[00:06:58] Speaker 01:
Given my experience, I expect to go 10 minutes, maybe 11 if you want to give me an extra minute.

[00:07:05] Speaker 01:
Advice as to the statutory maximum is a factor in the totality of the circumstance.

[00:07:11] Speaker 01:
But in general,

[00:07:12] Speaker 01:
the advice as to what the actual sentence will be, the consequences of relinquishing one's right to contest the alleged violations is precisely what is most important to any criminal.

[00:07:24] Speaker 03:
And you don't think the concern, what about the concern Judge McFadden expressed at the end of the first hearing?

[00:07:33] Speaker 03:
Parties are saying, we're good, stipulate to one violation, he gets three months.

[00:07:41] Speaker 03:
And Judge McFadden has a lot of concern and says, no, no, I want to look at.

[00:07:46] Speaker 03:
I want to look more broadly at this defendant's violations.

[00:07:49] Speaker 03:
You better go back and figure out what you want to admit.

[00:07:53] Speaker 03:
You better go talk to your.

[00:07:55] Speaker 01:
I think that's a fair point, Your Honor.

[00:07:57] Speaker 01:
But with respect, the main part of Judge McFadden's concern was the allegations of another pending charge in the in the in Fairfax County, Virginia.

[00:08:06] Speaker 01:
not with respect to the other technical matters.

[00:08:08] Speaker 01:
That's part of it.

[00:08:10] Speaker 01:
With respect, Your Honor, had it only been six technical violations, my sense is that Judge McFadden would have been happy to take one or even two and be done with it.

[00:08:20] Speaker 01:
He was concerned most principally with the Virginia charge, which ultimately the government chose not to prove up.

[00:08:27] Speaker 01:
And so as far as we can tell from the record before us, should have absolutely no bearing on the sentence

[00:08:35] Speaker 01:
that Mr. Hood would receive.

[00:08:39] Speaker 01:
To be fair, I think you're right that he wanted to hear more about that.

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And had he heard that and had that resulted in the upward variance, I think we'd be in a very different place.

[00:08:49] Speaker 03:
You don't dispute that we can look, or maybe you do, can we look to everything that happened

[00:08:55] Speaker 03:
in the prior proceedings and your position is you can do that but still not sufficient knowledge or are you saying let's let's go full or rule 11 and impose that requirement on the revocation and say it's got to be in the four corners of that hearing we are not okay your honor our position is that this so this just comes the totality of the circumstances comes down to a dispute whether

[00:09:24] Speaker 03:
how we assess everything that happened.

[00:09:27] Speaker 03:
That would be fair, yes.

[00:09:28] Speaker 01:
I see I've got only 48 seconds left.

[00:09:30] Speaker 04:
But the magistrate judge did tell him the max sentence.

[00:09:33] Speaker 01:
The magistrate judge did tell him the maximum sentence, Your Honor.

[00:09:36] Speaker 04:
And would you agree that totality of the circumstances would be the lens in which we'd look at this?

[00:09:41] Speaker 01:
Yes, Your Honor.

[00:09:41] Speaker 01:
Our contention is that our submission is that being advised of the max sentence is inadequate

[00:09:48] Speaker 01:
to advise a defendant of the consequences of relinquishing his rights.

[00:09:53] Speaker 01:
In addition, a statement, I'm not bound by the guidelines, suggestions, I may choose to depart upward.

[00:10:00] Speaker 04:
Okay, so I'm confused by your answer because you said totality of circumstances would be the lens, but then you're narrowing me as to what I can look at.

[00:10:07] Speaker 01:
We know, Your Honor, totality of the circumstances of this test.

[00:10:11] Speaker 01:
I think the failure here to advise the possibility of an upward guideline departure means that under the totality of the circumstances, this waiver was not knowing and involved.

[00:10:21] Speaker 03:
Well, there are two different issues embedded in that.

[00:10:25] Speaker 03:
One is, what must be known?

[00:10:29] Speaker 03:
Does that include the possibility of an upward variance on the guideline range?

[00:10:35] Speaker 03:
And a second is,

[00:10:37] Speaker 03:
where can we look to answer that question?

[00:10:41] Speaker 03:
As to the second on the second, I think we've all agreed we can consider everything that happened.

[00:10:47] Speaker 01:
I concur, Your Honor.

[00:10:48] Speaker 01:
We agree with that.

[00:10:49] Speaker 01:
It's as to the purse.

[00:10:51] Speaker 01:
To put it bluntly, Mr Hood went in there expecting to be out in three months and home for the birth of his daughter.

[00:10:58] Speaker 01:
Uh, that is that is that is the expectation that he had

[00:11:02] Speaker 01:
he delinquished his rights with that expectation and nothing that the district court judge said and frankly nothing that the magistrate judge said told him anything other than anything that that was not a possibility in light of the probation officer's statement that it was a maximum sentence a maximum time of six months in light of the joint recommendation of all the parties with two months.

[00:11:24] Speaker 01:
And is that what you contend is plain error?

[00:11:27] Speaker 01:
Yes your honor this is the failure to provide the

[00:11:31] Speaker 01:
to provide a warning of this sort is a due process violation.

[00:11:34] Speaker 01:
And then in our view, under Olano, any violation of a rule of law of that sort satisfies the plain error.

[00:11:43] Speaker 02:
I haven't thought this through, and you have a lot of experience in this area.

[00:11:46] Speaker 02:
But doesn't it seem a bit awkward to find, and the standard is one of fatality and circumstance, that the error is plain

[00:12:01] Speaker 01:
I'm not sure I understand your question.

[00:12:03] Speaker 01:
I would certainly think that to reverse the question, Your Honor, had none of the other colloquies happened at all at the first, the preliminary hearing, the preliminary revocation not happened, and had he simply walked in and only the last bit had happened, the six lines before they took his plea,

[00:12:28] Speaker 01:
and had it not been objected to below, I would think that that would clearly be a plain error, notwithstanding the fact that it would be a totality of the circumstances test.

[00:12:40] Speaker 02:
But in that circumstance, the totality is irrelevant.

[00:12:42] Speaker 02:
You're saying that subset of the totality, that one thing is a plain error by itself.

[00:12:49] Speaker 01:
Yeah, our argument would be that this error falls within that subset.

[00:12:54] Speaker 02:
And both are briefs after laying out circumstances and so on.

[00:12:59] Speaker 02:
You say that the error was plain, but no authority cited either the reply brief on that.

[00:13:06] Speaker 01:
First of all, as far as we can see, Your Honor, the other circuits that have addressed this issue haven't spoken to this directly.

[00:13:13] Speaker 01:
Both the LeBlanc and the Correa Torres case involved reversals in which there was apparently no objection below.

[00:13:19] Speaker 01:
So though they did not speak to the standard review, one assumes it would have been plain error.

[00:13:26] Speaker 01:
I can find no.

[00:13:27] Speaker 01:
case law that is directly on point, so I can't point you to that.

[00:13:33] Speaker ?:
Thank you.

[00:13:33] Speaker 03:
I apologize.

[00:13:34] Speaker 03:
Thank you.

[00:13:35] Speaker 03:
Just to prove your hypothetical, we will extend the time to give you some more bottle.

[00:13:44] Speaker 00:
Good morning.

[00:13:44] Speaker 00:
I'm David Goodham from the United States.

[00:13:47] Speaker 00:
I just like to address a couple factual points and then a legal point relating to the question of the upward variance.

[00:13:54] Speaker 00:
In particular, I'd like to hone in on

[00:13:57] Speaker 00:
My opponent has repeatedly emphasized the probation officer's declaration of the initial appearance.

[00:14:02] Speaker 00:
I just want to make sure the court is aware of the full quote.

[00:14:05] Speaker 00:
This is at page 8 of the July 6 initial hearing.

[00:14:12] Speaker 00:
The probation officer says, up to six months incarceration is his match per the guideline within the next sentence.

[00:14:18] Speaker 00:
But again, he does these 24 months per statute.

[00:14:21] Speaker 00:
So I just want to make sure that everybody's on the same page with respect to what the defendant was on notice of.

[00:14:27] Speaker 00:
As to the issue of whether or not he had an understanding that a variance was a possibility, as we described in our brief, we think there are several indicia demonstrating that he did.

[00:14:38] Speaker 00:
Number one, he, of course, was a beneficiary of an outside guideline sentence previously.

[00:14:44] Speaker 00:
Number two, the petition demonstrated that it explained the guidelines are just one factor in the whole 3553 analysis.

[00:14:53] Speaker 00:
And, of course, we also had his guilty plea and the plea agreement itself

[00:14:57] Speaker 00:
He declared that, and this is ECF number 10 at page five, neither the government sentencing recommendation nor the guidelines are binding on the court.

[00:15:11] Speaker 00:
But I think the actual best evidence that he had an understanding of that a variance was a possibility is emanates from the pages A5 and A6 of the actual final revocation hearing.

[00:15:27] Speaker 00:
Right after the judge does a direct colloquy with the defendant, you admit X, you admit Y, you admit Z, the court turns to the probation officer.

[00:15:38] Speaker 00:
And the probation officer declares, I want to make sure everybody, this is at page A5, all parties are aware of what penalties Mr. Hood is facing.

[00:15:46] Speaker 00:
I want to make sure we're all on the same page.

[00:15:49] Speaker 00:
And then lays out the guidelines.

[00:15:51] Speaker 00:
All the counsel agree with the guidelines calculation.

[00:15:53] Speaker 00:
Then the next page is a critical one.

[00:15:56] Speaker 00:
On page 86, the probation officer says, however, I do want to make the court aware, and all the parties aware, that there is a statutory maximum of 24 months the court can seek to use if he feels that the violations are up to the point where Mr. Hood needs to be punished up to a maximum of 24 months.

[00:16:17] Speaker 03:
Should we disregard that because it came after the missions?

[00:16:22] Speaker 03:
I think no.

[00:16:24] Speaker 03:
I mean, it's crystal clear, but you're putting the defendant in a little bit of a tough position, right?

[00:16:30] Speaker 03:
He's just admitted to everything.

[00:16:32] Speaker 03:
Everyone in the courtroom knows he did it.

[00:16:36] Speaker 03:
And then you advise him that

[00:16:39] Speaker 03:
he can take it back.

[00:16:41] Speaker 00:
I cited as evidence after the fact, evidence demonstrating that he was not surprised that an upward variance was a possibility.

[00:16:49] Speaker 00:
If you look at the indicia that precedes his admission, and then you look at this after his admissions, he doesn't express any surprise.

[00:16:58] Speaker 00:
He doesn't tug on his counsel's sleeve.

[00:17:00] Speaker 00:
He doesn't lodge any objection.

[00:17:02] Speaker 00:
And I think the other thing that this record demonstrates is that this was not necessarily a shy defendant to the extent that

[00:17:09] Speaker 00:
When he disagreed, for example, with his counsel's declaration that he was conceding violation number five, when the court asked him directly, the defendant actually said, well, I'm not necessarily admitting that, and gave this explanation relating to medical marijuana.

[00:17:28] Speaker 00:
My point being that he wasn't shy.

[00:17:31] Speaker 00:
If this came as a surprise to him, he probably would have said something.

[00:17:36] Speaker 00:
So it's after the fact evidence for sure.

[00:17:38] Speaker 02:
What if he had said something?

[00:17:39] Speaker 02:
So as he said, wait a minute, I didn't know that.

[00:17:42] Speaker 02:
I don't want to admit to anything.

[00:17:45] Speaker 02:
These are all technical violations.

[00:17:47] Speaker 02:
Weren't they all within the personal knowledge of the PO?

[00:17:49] Speaker 00:
Yes, absolutely.

[00:17:51] Speaker 00:
He was present.

[00:17:52] Speaker 00:
And I think it would have been very easy for the government to put those up.

[00:17:58] Speaker 00:
I do think, though, that his silence after his admissions gets to the legal point I wanted to make.

[00:18:04] Speaker 00:
One of the questions posed to my opponent was,

[00:18:08] Speaker 00:
Does the district court have a duty to impart the possibility of upward variance to a defendant?

[00:18:16] Speaker 00:
And the Supreme Court has said no.

[00:18:20] Speaker 00:
In United States v. Irizarry, and this is 553 U.S.

[00:18:24] Speaker 00:
7808 and jump site 714, the Supreme Court has said there's no due process requirement for notice of an upward variance.

[00:18:34] Speaker 00:
The guidelines are discretionary.

[00:18:35] Speaker 00:
The court said, and this is at sentencing,

[00:18:37] Speaker 00:
Irizarry applies to initial sentencing.

[00:18:40] Speaker 00:
I would suggest if Irizarry is saying there's no due process right with respect to initial sentencing, then we certainly know what the answer to the question is at revocation sentencing, which all courts agree is a more informal process than original sentencing.

[00:18:57] Speaker 00:
Supervised release is a conditional liberty interest.

[00:19:03] Speaker 00:
not a new offense if you have been found in a violation.

[00:19:07] Speaker 00:
It's a continuation of your original sentencing.

[00:19:10] Speaker 00:
That's why the courts

[00:19:11] Speaker 00:
outside of this jurisdiction are all comfortable with this A, totality of circumstances approach, number one, but number two, a more informal process at the revocation hearing itself.

[00:19:22] Speaker 04:
In some of the cases indicate that there's just a knowing and voluntary waiver, but, you know, it also other cases mentioned knowing voluntary and intelligent.

[00:19:33] Speaker 04:
So do you have any suggestion as to which way for us to go in that regard?

[00:19:39] Speaker 00:
I think that there are variations on a theme.

[00:19:42] Speaker 00:
I think what we do know is that the courts do not want to dictate the necessary procedures and the necessary college week.

[00:19:49] Speaker 00:
But should we be dropping the intelligent?

[00:19:52] Speaker 00:
Frankly, I don't see much space between intelligent and knowing, to the extent that we know that you don't have to have a checklist of every single procedural right that's been afforded to the defendant.

[00:20:04] Speaker 00:
You just have to have an understanding that this was a knowing admission and a voluntary one, and that you generally understood your rights pursuant to rule 32.1.

[00:20:19] Speaker 00:
Look, to be clear, as the other courts of appeals have regularly admonished, it's much simpler if a couple questions are posed by a district court judge to a defendant at the outset of a Rule 32.1 hearing.

[00:20:33] Speaker 00:
That is, there are many variations that would have made this appeal a lot simpler.

[00:20:40] Speaker 00:
Certainly, those admonitions make sense because there are a lot of resources devoted to sort of finding the record to figuring out if something's knowing and intelligent and voluntary.

[00:20:49] Speaker 00:
those inquiries can be curtailed.

[00:20:52] Speaker 00:
I would suggest if the reports do make those prophylactic questions.

[00:20:57] Speaker 03:
But the point of course, because they're very clear now is that it's not required to your position on unknowing to say it has to be knowing.

[00:21:05] Speaker 03:
It begs the question of what has to be true.

[00:21:10] Speaker 03:
Your position is as a matter of due process, the defendant need not know

[00:21:18] Speaker 03:
the possibility of an upward variance from a an advisory guideline.

[00:21:23] Speaker 03:
That's that's my understanding of the implications of years are just does the defendant need to know anything about is potential exposure.

[00:21:35] Speaker 00:
I think I've seen the cases referred to, and particularly I would point the court to United States versus LeBlanc from the 7th Circuit, it's cited in both Melvin and Manuel.

[00:21:44] Speaker 00:
That court says, look, when a review court is doing a totality circumstances analysis, it's perfectly understandable that a consideration would be an understanding of whether or not the defendant knew the possible sentence.

[00:21:57] Speaker 03:
It makes intuitive sense, but it's not on the list of items enumerated in.

[00:22:04] Speaker 03:
32.1 B2.

[00:22:07] Speaker 03:
Right.

[00:22:08] Speaker 00:
I think it naturally follows, if you would, from the fact that we're talking about a liberty interest here.

[00:22:16] Speaker 00:
But for sure, if you look at rule 11.

[00:22:18] Speaker 03:
So, yeah.

[00:22:18] Speaker 03:
So, okay.

[00:22:19] Speaker 03:
So I'm just trying to figure out what is required sort of short of the possibility of a variance.

[00:22:26] Speaker 03:
Like, is knowledge of stat max enough?

[00:22:29] Speaker 03:
I guideline range plus stat max without a statement that the court can depart.

[00:22:35] Speaker 03:
I think that would certainly suffice.

[00:22:37] Speaker 00:
That's the possible stat max only.

[00:22:39] Speaker 00:
That's a possible set is sufficient.

[00:22:41] Speaker 00:
Yes, I think so.

[00:22:42] Speaker 00:
And again, this emanates from my understanding of your Zari.

[00:22:45] Speaker 00:
Um, there's just not the necessary detail that 11.

[00:22:49] Speaker 00:
I mean, if you look at 11, it's very detailed about the sentencing factoids, if you will.

[00:22:55] Speaker 00:
Um,

[00:22:55] Speaker 00:
that must be imparted to a defendant.

[00:22:57] Speaker 03:
Which I was thinking of going down that route, but as I said, 32 doesn't say anything about exposure.

[00:23:05] Speaker 00:
Right.

[00:23:06] Speaker 00:
And I think the courts have, again, relating to the informal process, I think the courts are comfortable with, if the defendant understands a possible sentence and that consequence, that liberty interest, then the courts are comfortable with a conclusion of knowing involuntary.

[00:23:22] Speaker 04:
Is there a distinction between having a colloquy versus the totality of circumstances?

[00:23:29] Speaker 00:
The courts have been very reluctant to demand an affirming, an affirmation, a direct affirmation from the defendant.

[00:23:38] Speaker 00:
Is it laudatory, something that we should hope happens for sure?

[00:23:44] Speaker 00:
But we've cited several cases, Farrell,

[00:23:47] Speaker 00:
um, uh, Taylor, I believe, and Tapia SLR out where there was absolutely no colloquy with the defendant and the court was still comfortable with the notion that a totality of circumstances approach, um, suffice to show knowing involuntary.

[00:24:03] Speaker 02:
Seeing follows from, um, the nature of the revocation hearing that the Liberty interest in question is significantly attenuated because we're operating within previously

[00:24:18] Speaker 02:
delivered conviction and sentence.

[00:24:20] Speaker 00:
Yes.

[00:24:20] Speaker 00:
And the Second Circuit makes that point in Polinsky.

[00:24:23] Speaker 00:
You've already had your initial sentencing hearing.

[00:24:25] Speaker 00:
You've already been apprised of numerous facts relating to the sentence that is part and parcel of the supervised release violation.

[00:24:33] Speaker 00:
You can't exceed the stat max for your offense on the initial sentencing.

[00:24:38] Speaker 00:
So that is certainly part and parcel of the comfort that the courts have in concluding

[00:24:44] Speaker 00:
So there just has to be general knowledge and voluntariness that suffices in this context.

[00:24:51] Speaker 03:
Who bears the burden proof?

[00:24:53] Speaker 03:
You tender the waiver, the defendant says it's not knowing and voluntary.

[00:24:58] Speaker 03:
Does the defendant have to prove the absence of knowledge, or do you have to prove that there was no?

[00:25:05] Speaker 00:
In this context, definitely it's the defendant's burden.

[00:25:08] Speaker 00:
He agrees when the plain error context, that means- Put aside plain, just on the merits.

[00:25:13] Speaker 00:
Putting aside plain error.

[00:25:14] Speaker 00:
In putting aside plain error, I would think it would probably be the government's burden to the extent that the error here, if there is an error ever in a rule 32.1 waiver, is that the defendant has not knowingly and voluntarily waived his rule 32.1 rights and admitted his violation.

[00:25:38] Speaker 00:
I think if we're in a non-plain error context, and we're just talking about a straight up standard review, I would think if the defendant is claiming error that it would be the government's burden.

[00:25:48] Speaker 00:
We're not there here.

[00:25:49] Speaker 00:
Government's burden by a preponderance.

[00:25:53] Speaker 00:
I think that would be right.

[00:25:57] Speaker 00:
If the court has no further questions, we would ask that you affirm the judgment below.

[00:26:15] Speaker 01:
First, thank you for the extra time.

[00:26:16] Speaker 01:
Appreciate it.

[00:26:18] Speaker 01:
We'll make two or three brief points and then sit down.

[00:26:22] Speaker 01:
The first is that page A5 and A6 all both come after page A234, which is where the defendant was obliged to and did indeed admit the violations of the supervised release.

[00:26:35] Speaker 01:
You would respectfully submit that any after occurring evidence and asking the defendant to stand up and say, wait, now I've changed my mind.

[00:26:42] Speaker 01:
I'm going to withdraw.

[00:26:44] Speaker 01:
Blanking the reality of what happens at proceedings like this.

[00:26:48] Speaker 03:
Why is that?

[00:26:50] Speaker 03:
The revocation decision will be made by a district court.

[00:26:54] Speaker 03:
And if this were going to a jury and the jury heard the admission, sure, you'd be on strong ground.

[00:27:01] Speaker 03:
But we'll generally assume that judges can decide issues.

[00:27:07] Speaker 03:
And Judge McFadden had said earlier on if the defendant,

[00:27:13] Speaker 03:
The defendant wants to contest the violations.

[00:27:17] Speaker 03:
That's why we have hearings.

[00:27:20] Speaker 01:
That's true.

[00:27:20] Speaker 01:
No, Your Honor.

[00:27:21] Speaker 01:
But then my second point would be that even the A5 and A6 language that Mr. Goodhand referred to is nothing but a repetition of what had gone in the revocation hearing before.

[00:27:31] Speaker 01:
Our view is that the statutory max is inadequate.

[00:27:34] Speaker 01:
The first time that the defendant has any understanding that the possibility of an upward variance is a realistic one,

[00:27:43] Speaker 01:
is later in the hearing at page 8 when the judge says, I want to advise the parties that I'm considering an upward variance.

[00:27:51] Speaker 01:
It is asking quite a bit at this point.

[00:27:54] Speaker 01:
And then he takes a little argument at which Mr. Lawler says, we recommend that you continue, that you accept the recommendation.

[00:28:01] Speaker 01:
Mr. Wang, the Assistant U.S.

[00:28:03] Speaker 01:
Attorney says, for the record, we join in that recommendation.

[00:28:07] Speaker 01:
You know, at that point, we're down to argument of counsel.

[00:28:12] Speaker 01:
In our view, if this court were to say that the statutory maximum advice is sufficient to get over the totalities of the circumstances bar, we lose.

[00:28:24] Speaker 01:
But with respect, the statutory maximum is simply not what is the reality of the proceedings in the district court today.

[00:28:33] Speaker 01:
The reality for Mr. Hood, and in general,

[00:28:37] Speaker 01:
is that the statutory max bears little relationship with the guidelines.

[00:28:41] Speaker 03:
I mean, that would have a lot of force if the guidelines were still legally binding.

[00:28:48] Speaker 03:
But we're in the post-Booker world.

[00:28:51] Speaker 03:
Their advisory courts are pretty, I mean, we're not going to require advice on all the nuances

[00:29:01] Speaker 03:
Gall and Rita and when courts have to follow or should follow the guideline range and when they can go up, right?

[00:29:09] Speaker 01:
I wouldn't ask that at all.

[00:29:10] Speaker 01:
Right.

[00:29:11] Speaker 01:
What we would simply suggest, however, is the defendant be made aware of the fact that the guidelines are fine.

[00:29:15] Speaker 01:
That it's a possibility.

[00:29:16] Speaker 01:
It's a possibility.

[00:29:17] Speaker 01:
And that would be sufficient.

[00:29:19] Speaker 01:
With that, we respectfully ask the court to reverse and remand and with directions that this would be released since that is what he wants.

[00:29:29] Speaker 01:
Thank you.

[00:29:31] Speaker 03:
Ginsburg?

[00:29:32] Speaker 03:
Mr Rosensweig, you were appointed to represent Mr Hood in this case in the court.

[00:29:38] Speaker 03:
Thanks for your very able assistance.

[00:29:41] Speaker 03:
Thank you very much submitted.