[00:00:00] Speaker 00:
Case number 22-3014, United States of America versus Maurice Carrick Jr.

[00:00:06] Speaker 00:
Appellant.

[00:00:07] Speaker 00:
Mr. Kramer, FPD for the Appellant.

[00:00:10] Speaker 03:
Mr. Goodhand, AUSA for the Appellee.

[00:00:17] Speaker 03:
Good morning, Your Honors, and may it please the Court, A.J.

[00:00:19] Speaker 02:
Kramer on behalf of Mr. Carrick.

[00:00:21] Speaker 02:
This case is an unusual case in many ways.

[00:00:24] Speaker 02:
I think Mr. Carrick received the maximum possible punishment for the offense itself, for the underlying offense, which is what he was advised of at the time.

[00:00:36] Speaker 02:
What he was never advised of is the district court found later during the revocation procedure.

[00:00:42] Speaker 02:
was that he could be sentenced to an additional term of imprisonment or violation of supervised release.

[00:00:48] Speaker 02:
So that's the premise of the argument that it violates due process.

[00:00:54] Speaker 02:
As the district court found stated several times, the argument was that it violates due process or to be sentenced to an additional term of imprisonment about which you hadn't noticed.

[00:01:07] Speaker 04:
How much time has he served?

[00:01:09] Speaker 04:
Like, in other words, on that conviction that he did not dispute?

[00:01:13] Speaker 02:
The superior court conviction, I think about three years, somewhere around three years.

[00:01:21] Speaker 02:
That was a seven-year sentence, and the two years is added on.

[00:01:25] Speaker 02:
So that's a total of nine years he has to serve.

[00:01:28] Speaker 02:
If the two years that he was sentenced to on the revocation was deducted, he'd only have seven years to serve on the superior court.

[00:01:37] Speaker 04:
But he's still incarcerated on that offense.

[00:01:39] Speaker 02:
He is still incarcerated on that offense and has several years consecutive two years.

[00:01:43] Speaker 02:
Yes.

[00:01:44] Speaker 02:
And he also has is subject to revocation proceedings for a Maryland conviction that have not those revocation proceedings have not yet occurred.

[00:01:53] Speaker 02:
But it's not like this would he has a substantial period of time left on the Superior Court sentence and then additional

[00:02:00] Speaker 02:
revocation proceedings on a state conviction in Maryland.

[00:02:03] Speaker 04:
And we're talking about a defendant who is at least a category five.

[00:02:07] Speaker 04:
I know that there was discussion in the transcript about whether he was category five or six.

[00:02:12] Speaker 04:
Yes.

[00:02:12] Speaker 04:
So there's an assumption that over, you know, his very stored criminal history at times when he gets incarcerated, then followed by supervised release,

[00:02:24] Speaker 04:
potentially revoked other times, whether it's state or federal, that A, you're supposed to be a model citizen during that period of time.

[00:02:33] Speaker 04:
So if you commit other crimes, why wouldn't there be that expectation that defendants would know, well, you could go back in jail because you committed other crimes.

[00:02:41] Speaker 02:
Well, first of all, the district court specifically found that he was never so advised and had no knowledge of it.

[00:02:48] Speaker 02:
So that's, let me put it that way.

[00:02:49] Speaker 02:
The only other, at the time of these revocation proceedings,

[00:02:53] Speaker 02:
The only other revocation proceedings that he had been subject to were much different.

[00:02:58] Speaker 02:
Those were in the state of Maryland and those were revocations for probation where he had part of a sentence left.

[00:03:06] Speaker 02:
So that was not an additional sentence.

[00:03:09] Speaker 02:
He hadn't served the underlying sentence and then had an additional period of release.

[00:03:14] Speaker 02:
In the Maryland proceedings, he had had a sentence, it was 20 years, but eight years or nine years was suspended.

[00:03:22] Speaker 02:
And so he still had an 11 year sentence hanging over his head.

[00:03:26] Speaker 02:
It hasn't been yet.

[00:03:28] Speaker 02:
That's on the current one, but he had had a previous revocation in Maryland.

[00:03:32] Speaker 02:
and that it just revokes and sentences you to the original sentence.

[00:03:36] Speaker 02:
So that would be akin to if he had this five-year sentence, if he had had three years, served three, was on parole for two, and had a revocation.

[00:03:46] Speaker 02:
He never got, in other words, the only revocation proceedings he went through

[00:03:50] Speaker 02:
He never had anything more than the maximum sentence for the underlying offense imposed.

[00:03:55] Speaker 02:
There was nothing that would have indicated to him that you could be sentenced to an additional term of imprisonment above and beyond the maximum for the crime.

[00:04:04] Speaker 04:
So that's the true challenge, above and beyond the maximum.

[00:04:07] Speaker 04:
He's not disputing that he could have served additional time.

[00:04:11] Speaker 02:
Well, that's not before, that wasn't before the district court and not before this court.

[00:04:17] Speaker 02:
But if he had served, say, it's not possible in the federal system anymore because there's no parole.

[00:04:24] Speaker 02:
So it's not, that's the hitch here is that he served the maximum

[00:04:29] Speaker 02:
sentence for the underlying offense.

[00:04:32] Speaker 02:
It's not like he got, I suppose if he had gotten three years and then his supervised release was violated, it would be a different argument.

[00:04:39] Speaker 02:
I'm not saying I would concede that, but having served the maximum possible, he was told that both in the pre-sentence report and most importantly at the plea by then Judge Urbina that this is the maximum possible sentence, five years in prison.

[00:04:55] Speaker 01:
Having served that, I think that takes, I'm sorry.

[00:05:14] Speaker 02:
Well, he can be taken care of in a 10 second colloquy at the plea by telling the person what I think rule 11 still requires, which is that if you violate supervised release, you can be sentenced to an additional term of imprisonment.

[00:05:29] Speaker 02:
We would have a much different argument if that had been done.

[00:05:32] Speaker 02:
So all the district court has to do, I'm sorry.

[00:05:35] Speaker 02:
What argument would you have?

[00:05:36] Speaker 02:
Pardon me?

[00:05:36] Speaker 01:
What argument would you have if that had been done?

[00:05:38] Speaker 02:
Well, that's what I'm saying.

[00:05:39] Speaker 02:
That would be well, then there's the double jeopardy argument and Sixth Amendment arguments, but.

[00:05:46] Speaker 01:
You're challenging the adequacy of that colloquy and have that guilty plea to support the additional so-called adjustments to the sentence.

[00:05:56] Speaker 02:
Well, I think I think it was inadequate.

[00:05:58] Speaker 01:
Yes, but that I'm not challenging the adequacy of the plea just not in the strict not trying to vacate it.

[00:06:06] Speaker 01:
No challenging its validity for this purpose.

[00:06:09] Speaker 01:
It's adequacy to support the governments.

[00:06:11] Speaker 02:
It's adequacy for due process purposes.

[00:06:16] Speaker 01:
Any challenge is not.

[00:06:18] Speaker 01:
Can't just avoid the rule 11E.

[00:06:23] Speaker 02:
But we're not saying that the plea itself with this, this argument is not that the plea itself is invalid.

[00:06:32] Speaker 02:
The argument is that it violates due process, the sentencing to a term of imprisonment and the district court phrased it that way several times.

[00:06:40] Speaker 01:
I understand your point.

[00:06:41] Speaker 01:
I mean, you're saying it's not valid to the point that it should be here vacate saying it's insufficient to support.

[00:06:48] Speaker 02:
And then that remedy would be meaningless at this point because he served the maximum possible term of imprisonment for the underlying offense.

[00:06:57] Speaker 02:
So I know the government tries to pigeonhole it in an argument they never made to the district court, by the way, about that that's really what's going on, the validity of the plea.

[00:07:09] Speaker 02:
But that's not what's going on.

[00:07:10] Speaker 02:
It's a due process challenge to imprisoning somebody

[00:07:14] Speaker 02:
term of imprisonment above the maximum sentence for the crime when the person had no notice and was never told that they could be sentenced to that term of imprisonment.

[00:07:26] Speaker 00:
Do what section 3583e, which lists the different factors for a supervised release revocation hearing, right?

[00:07:36] Speaker 00:
None of those factors seem to suggest that a problem with the initial sentencing or the initial

[00:07:43] Speaker 00:
plea colloquy would be a basis for this?

[00:07:47] Speaker 02:
Well, those are the factors the district court is supposed to consider in whether to revoke the term of supervised release and what to do after saying whether to revoke it or not and what to do after making that decision.

[00:08:04] Speaker 02:
But that's not part of the argument here.

[00:08:07] Speaker 02:
The argument here is that whatever

[00:08:12] Speaker 02:
decision, those factors in a sense are irrelevant because the district court violated due process to sentence him to any term of imprisonment because he was never given any notice or told.

[00:08:25] Speaker 00:
Haven't a number of other circuits said that flaws in the original sentence can't be a defense to a revocation proceeding?

[00:08:34] Speaker 00:
I believe there are eight circuits.

[00:08:37] Speaker 02:
There was no flaw in the original sentence.

[00:08:40] Speaker 02:
He got the five year maximum sentence.

[00:08:44] Speaker 02:
We're not arguing that that was improper.

[00:08:47] Speaker 00:
You're arguing, as I think Judge Ginsburg also mentioned, that there was some sort of problem with the

[00:08:54] Speaker 00:
the plea colloquy that he wasn't informed.

[00:08:56] Speaker 00:
He wasn't told about this, right?

[00:08:58] Speaker 02:
Exactly.

[00:08:59] Speaker 02:
And the government has cited no case that says that there's any waiver of that issue.

[00:09:05] Speaker 02:
It's not something they are in the district court in any of them.

[00:09:08] Speaker 02:
But they have cited no case that I know from another circuit.

[00:09:12] Speaker 00:
They haven't cited them, but there are a number of cases.

[00:09:15] Speaker 00:
I'm a little surprised why they haven't cited them.

[00:09:18] Speaker 02:
In any event,

[00:09:20] Speaker 02:
If you're saying that you can't raise it when you've never been informed of the term of imprisonment, that you can't raise a due process claim later when that term of imprisonment is imposed upon you, I just don't think that's right, especially in the context of revocation when the Supreme Court has repeatedly said,

[00:09:42] Speaker 02:
that post revocation sanctions are part of the penalty for the initial offense.

[00:09:47] Speaker 02:
They have said that several times, that this is just a part of the sentence for the original offense.

[00:09:53] Speaker 02:
So I don't know why you couldn't challenge, and again, I don't know the cases because they weren't raised, but I don't know why you couldn't challenge a sentence that's imposed as part of the original offense at the time it's imposed, which is what we did.

[00:10:08] Speaker 02:
At the time, Judge Kelly imposed the revocation sentence,

[00:10:12] Speaker 02:
We challenge that on these grounds and that's what this direct appeal is about.

[00:10:17] Speaker 02:
So I'm not clear how you could not challenge what the Supreme Court has said that an accused final sentence includes any supervised release sentence he may receive.

[00:10:28] Speaker 02:
So if we're claiming that that sentence was not proper for due process reasons, I don't understand how a court could say that that kind of challenge is precluded.

[00:10:42] Speaker 04:
And help me.

[00:10:44] Speaker 01:
Go ahead.

[00:10:46] Speaker 01:
Seven or eight circuits have said that this kind of a challenge is collateral.

[00:10:52] Speaker 01:
And you've asked us to disagree with that.

[00:10:57] Speaker 01:
What is your answer to the claim, I mean, seven or eight circuits, that it's collateral, the consequence is collateral because it's not the automatic and direct effect of the

[00:11:10] Speaker 02:
First of all, all those cases that the government cites were decided before Hayman.

[00:11:16] Speaker 01:
You keep citing Hayman, but only to the plurality opinion.

[00:11:21] Speaker 02:
Well, let me put it this way.

[00:11:22] Speaker 02:
In the Mont case, the court said,

[00:11:31] Speaker 02:
They're a form of punishment, revocation of supervised release in a sentencing.

[00:11:36] Speaker 02:
They're a form of punishment that Congress prescribes along with a term of imprisonment as part of the same sentence.

[00:11:44] Speaker 02:
And they said in Hayman, supervised release punishments arise from and are treated as part of the penalty for the initial offense.

[00:11:51] Speaker 02:
And for that, they quoted Johnson versus United States from 2000.

[00:11:55] Speaker 02:
So the Supreme Court has consistently said, which takes this, I don't understand how something could be collateral that's part of the original sentence.

[00:12:04] Speaker 02:
That just makes no sense.

[00:12:06] Speaker 02:
And I don't think any of those courts have held that

[00:12:13] Speaker 02:
that part of the original sentence could somehow be collateral.

[00:12:18] Speaker 02:
I just don't understand it.

[00:12:20] Speaker 02:
And so I don't have an answer other than that the Supreme Court has said is part of the original sentence.

[00:12:26] Speaker 02:
And I don't understand how something that's part of the original sentence could be collateral.

[00:12:30] Speaker 02:
And they've said that specifically about a revocation sentence of supervised release.

[00:12:36] Speaker 01:
The court hasn't graced us with a definition or a dividing line.

[00:12:43] Speaker 01:
the whatever it is, direct, active, automatic raising seems to be the day in the circuits.

[00:12:56] Speaker 01:
And I guess if that's not the standard, is this the only thing, is this the only consequence that you're saying would not be collateral?

[00:13:07] Speaker 02:
Well, even in concurrence,

[00:13:11] Speaker 02:
And his concurrence in Petia, Justice Alito, said there's a distinction between conviction and sentencing, which are direct consequences, and there's collateral consequences.

[00:13:22] Speaker 02:
And he didn't list anything about revocation of supervisory release of parole, which is probably because the Supreme Court has said that's part of the original sentence.

[00:13:32] Speaker 02:
So I think that Padilla makes it clear, I'm sure I'm pronouncing it wrong, Chides, which followed Padilla, have made it clear that part of the original sentence could not be a collateral.

[00:13:47] Speaker 02:
In that case, they held the removal.

[00:13:50] Speaker 02:
And they said the line is not, they specifically said in a footnote in Padilla that we recognize the line is not clear.

[00:13:57] Speaker 02:
But one thing, as I said, even in his concurrence, Justice Alito said,

[00:14:01] Speaker 02:
that the conviction and sentencing is clearly a direct consequence of the, is not a collateral and clearly direct.

[00:14:11] Speaker 02:
And since the Supreme Court has said that revocation sentences are part of the original sentence, that seems to me to take care of that argument.

[00:14:22] Speaker 02:
And besides, I'm not sure, the definite, immediate, and largely automatic

[00:14:29] Speaker 02:
First of all, I think revocation of supervised release satisfied that, but there's a whole nother line of cases to talk that emphasize the fact that it's not the court itself that is doing it, but like a parole agency or like

[00:14:44] Speaker 02:
The reason for the whole removal debate was because it was done by a separate agency.

[00:14:49] Speaker 02:
But the Supreme Court has made it clear that supervised release, the supervision of it, the revocation of it is all done by the district court as part of the original sentencing.

[00:15:01] Speaker 02:
So again, whatever test is used, I think that a supervised release term and revocation are clearly part of the original sentencing.

[00:15:11] Speaker 02:
and couldn't satisfy any whatever definition of collateral.

[00:15:17] Speaker 04:
How is harmless error, if at all, affected in this case?

[00:15:21] Speaker 02:
Well, it's clearly.

[00:15:23] Speaker 04:
And I say that because at the end of the day, he pled and there doesn't seem to be anything to suggest that he would have withdrawn his guilty plea.

[00:15:32] Speaker 02:
But that's not the remedy.

[00:15:36] Speaker 02:
I think it's on several levels.

[00:15:37] Speaker 02:
The problem is that he served the maximum sentence.

[00:15:40] Speaker 02:
So the remedy of withdrawal of the guilty plea is meaningless.

[00:15:45] Speaker 02:
The second part of that is that the argument is that he was told only that the maximum, quite clearly that the maximum possible penalty was five years.

[00:15:55] Speaker 02:
So that the imposition of two extra years on him is in itself the prejudice and the harm.

[00:16:02] Speaker 04:
Because he has not yet served that two years.

[00:16:04] Speaker 04:
It's consecutive to whatever he's in for now.

[00:16:07] Speaker 02:
Yes.

[00:16:07] Speaker 02:
Okay.

[00:16:09] Speaker 02:
So the Bureau of Prisons, when they,

[00:16:12] Speaker 02:
DC sentences are treated like federal sentences.

[00:16:15] Speaker 02:
So when he got seven years in superior court, and then he got two years consecutive here,

[00:16:22] Speaker 02:
Bureau of Prisons counts that as a nine-year sentence.

[00:16:25] Speaker 02:
But if the two years was vacated, he would be back to a seven-year sentence.

[00:16:30] Speaker 02:
So they don't actually calculate it that he served seven years and when he actually served those two years.

[00:16:37] Speaker 02:
He's serving a nine-year sentence because the two years were added on.

[00:16:41] Speaker 02:
So the harm is that extra two years that Bureau of Prisons has added on.

[00:16:45] Speaker 02:
They don't actually separate them out and decide which one was served.

[00:16:50] Speaker 02:
first, the seven year or the two years they aggregated as a nine year sentence.

[00:16:55] Speaker 04:
But why then under that scenario even if he then now becomes informed, I mean does it go back to the sentencing judge at all or does he just automatically just not get two years because he wasn't told?

[00:17:08] Speaker 02:
Well I think the closest case to that is the ex rel russo versus Illinois where the person was not informed at all of the special parole term which is very akin to the

[00:17:19] Speaker 02:
And in that case, the court, the person was not informed at all of it.

[00:17:27] Speaker 02:
So they just vacated it on appeal and said that because they were not informed, it's a due process violation and they just vacated it.

[00:17:35] Speaker 02:
the term itself.

[00:17:37] Speaker 02:
I think that at this point in this case, that's the only remedy is to vacate the two years where he was never advised.

[00:17:45] Speaker 02:
And that's the violation to impose upon him a sentence about which he was never advised.

[00:17:51] Speaker 04:
Now also, for example, the rehab decision.

[00:17:56] Speaker 04:
As former trial court or trial courts, we all had to receive a lot of those pleas back because it had to be clear that the defendant had been informed, for example, if he had pled in state court that he was a felon and then could no longer have a possession of a gun.

[00:18:16] Speaker 04:
Yes.

[00:18:17] Speaker 04:
So how is this akin to or different from that situation, again, allowing the trial court to deal with it?

[00:18:25] Speaker 02:
Well, I think a couple of things.

[00:18:28] Speaker 02:
First of all, that affects the validity of the conviction itself.

[00:18:32] Speaker 02:
So those people...

[00:18:35] Speaker 02:
There's a whole host of procedural thickets along the way, because it had to be done by 2255 proceedings.

[00:18:43] Speaker 02:
And there were all kinds of procedural hurdles and arguments being made.

[00:18:48] Speaker 02:
But the bottom line is that would vacate the conviction entirely.

[00:18:52] Speaker 02:
So that would be the prejudice in that case.

[00:18:56] Speaker 02:
Now that had to go back to the district court

[00:19:00] Speaker 02:
There also was the kicker that it didn't have to be on the record.

[00:19:04] Speaker 02:
The government might be able to show in some other manner that the defendant had knowledge that they had been sentenced to a crime of more than one year.

[00:19:14] Speaker 02:
So that was in a whole different scenario.

[00:19:17] Speaker 02:
But this case is, the district judge in this case already found that he was never advised that he could be sentenced to this additional prison term.

[00:19:27] Speaker 02:
So that's off the table.

[00:19:29] Speaker 02:
That's not like in Rahave where you go back and try to see if there was any evidence, the government could try to show any evidence that someone had knowledge that they had been convicted of a crime.

[00:19:44] Speaker 02:
Yeah, 2254, yes.

[00:19:47] Speaker 02:
It came from state court, yes.

[00:19:49] Speaker 02:
Which is more difficult, both procedurally and legally, to get relief on.

[00:19:56] Speaker 02:
And yet, they've indicated the term of supervised release.

[00:20:00] Speaker 01:
It's less difficult in the sense that it's direct.

[00:20:03] Speaker 01:
I mean, not direct appeal, but I mean that it's in the channel prescribed by rule 11.

[00:20:08] Speaker 02:
It went through the state courts, obviously, and then into federal court, which has much stricter, on 2254, much stricter limitations.

[00:20:18] Speaker 02:
So I think this is in the channel of, until he got brought into court for revocation and told that he could get an extra two years, he had no idea that this could happen, is what the record shows.

[00:20:32] Speaker 02:
And therefore, there was no reason for him to challenge anything earlier

[00:20:38] Speaker 02:
that he had no reason to think he got the five year maximum sentence.

[00:20:42] Speaker 02:
And so there was no, so that's why I think, and this is on direct appeal, obviously, from this sentence.

[00:20:48] Speaker 02:
So in a sense, I think it's less onerous burden than in Bruce's.

[00:20:55] Speaker 03:
Thank you.

[00:20:58] Speaker 03:
Thank you.

[00:21:12] Speaker 03:
It please the court, David Goodhand from the United States.

[00:21:15] Speaker 06:
With me at counsel's table is Pettigianella, who is the deputy chief in the appellate division, and Kevin Burney, who is a trial attorney in this matter.

[00:21:23] Speaker 06:
The district court in this case properly concluded that the possible revocation and the subsequent potential re-imprisonment of the defendant was not a

[00:21:35] Speaker 06:
definite immediate and largely automatic consequence of the defendant's plea and that makes perfect sense when you look at the the collateral versus direct consequence test most saliently

[00:21:51] Speaker 06:
The courts are pretty universal in agreement with the notion that if the consequence is a function of the defendant's own inability to avoid misconduct, if the consequence is in the hands of the defendant as it was here, then that cannot be a direct consequence.

[00:22:11] Speaker 06:
And that makes perfect sense.

[00:22:13] Speaker 06:
Here, there was no ability for the district court at the time of the plea to understand whether or if or maybe the defendant did anything at the end of the term of incarceration.

[00:22:29] Speaker 04:
So there was no- If you look at that 3553A factors, which we could use at sentencing, which we could also use during the period of supervised release, you have the opportunity to modify

[00:22:40] Speaker 04:
continue modifying the sense of adding conditions, continue or revoke.

[00:22:45] Speaker 04:
And so that's already known.

[00:22:47] Speaker 04:
And so why wouldn't we require a district court to just state supervised release is part of the sentence.

[00:22:57] Speaker 04:
You're having this term, but you could, based on whatever the guideline calculation is to be followed by some period of supervised release.

[00:23:05] Speaker 04:
If you revoke, if you violate rather,

[00:23:09] Speaker 04:
then it could be modified.

[00:23:10] Speaker 04:
We could add terms.

[00:23:12] Speaker 04:
It could be continued.

[00:23:13] Speaker 04:
It could be revoked.

[00:23:14] Speaker 04:
And then you could have an additional period of incarceration.

[00:23:17] Speaker 04:
I'm not suggesting that you have to say what that period is because there's another sentencing guideline calculation for the supervised release.

[00:23:24] Speaker 04:
But that is essentially a consequence of that violation.

[00:23:31] Speaker 06:
There's no doubt that if you do engage in your misconduct and you violate the conditions that kick into effect at the end of the term of incarceration, there's modification, there's a possibility of re-imprisonment.

[00:23:43] Speaker 06:
But that will never come to pass unless you engage in a violation.

[00:23:48] Speaker 06:
And I think, frankly, I think Rule 11 already answers this question.

[00:23:52] Speaker 06:
I think Rule 11's terms are pretty clear.

[00:23:54] Speaker 06:
If you look at 11B1H,

[00:23:58] Speaker 06:
What the committee now admonishes district courts to tell defendants at the time of plea is any maximum possible penalty, including imprisonment, fine, and term of supervised release.

[00:24:12] Speaker 06:
Well, if you look at the plea transcript here, you will see that

[00:24:16] Speaker 06:
Each of the boxes was checked.

[00:24:18] Speaker 06:
He was told that the maximum period of possible imprisonment at the time of the offense was the five years under the marijuana possession with intent to distribute offense.

[00:24:29] Speaker 06:
He was also told the possibility of a fine and he's also told most critically

[00:24:34] Speaker 06:
that there was a term of supervised release that was possible when I sentenced you.

[00:24:39] Speaker 06:
What the defendant was not told were all of the possibilities, the permutations, that might have occurred if he, at the end of the incarceral term, violated the term of supervised release.

[00:24:51] Speaker 06:
And I think,

[00:24:53] Speaker 06:
It makes perfect sense why the district court doesn't have to go down this road.

[00:24:57] Speaker 06:
And I would commend to the court.

[00:24:59] Speaker 06:
The only case I found that really discusses this in any detail is the district court opinion, Gogan.

[00:25:04] Speaker 06:
And Gogan talks about the practical difficulties of sort of aiming out what might happen at the end of your carceral term.

[00:25:15] Speaker 06:
And here I'm quoting from Gogan where the court says,

[00:25:19] Speaker 06:
The court is able to discuss the original term of imprisonment fine in terms of supervised release at the Rule 11 hearing because the court is aware of the conduct surrounding the original offense and that conduct forms the basis of the punishment.

[00:25:35] Speaker 06:
However, there is no way for a court presiding over Rule 11 hearing to know whether or in what manner or how many times a defendant will violate supervised release in most cases.

[00:25:46] Speaker 04:
So we're talking about the fact of the violation.

[00:25:49] Speaker 04:
any violation could lead to these various scenarios.

[00:25:52] Speaker 06:
Sure.

[00:25:53] Speaker 06:
And I think the defendant was put on notice that he was given that when you're walking to court and you're ready to do your plea, the court has to tell you about the maximum term of imprisonment and the fact that supervised release.

[00:26:07] Speaker 06:
I mean, supervised release by his very terms, supervised, it suggests to you that you don't just

[00:26:14] Speaker 06:
get off scot-free if you violate the supervised release.

[00:26:18] Speaker 06:
These are conditions.

[00:26:19] Speaker 06:
There was a long detailed list at the end of the sentencing hearing.

[00:26:23] Speaker 06:
These are the mandatory conditions.

[00:26:24] Speaker 06:
These are discretionary conditions.

[00:26:26] Speaker 06:
If you violate them, there have to be consequences.

[00:26:30] Speaker 04:
Well, let me ask you a different way, too.

[00:26:33] Speaker 04:
When you're in state court, it's way different than federal court in the sense that we by the guidelines.

[00:26:38] Speaker 04:
Some states may have some guidelines, but for the most part, for example, in South Carolina,

[00:26:44] Speaker 04:
If you have armed robbery, it's 10 up to 30 years.

[00:26:48] Speaker 04:
If you have grand larceny, it's zero to five years.

[00:26:51] Speaker 04:
So you can see how there's so much discretion by the state court judge.

[00:26:55] Speaker 04:
But let's say the state court judge sentenced you on grand larceny and says, I'm going to sentence you to five years suspended upon the service of three, followed by a supervised release.

[00:27:06] Speaker 04:
That means that if that defendant violates during that period of supervised release, they could still get up to the five years because that's the maximum sentence.

[00:27:15] Speaker 04:
So this particular defendant who's being sentenced into state versus federal, why couldn't that be conceived as being confusing because you've got the maximum sentence and then you think that that's all I can get.

[00:27:30] Speaker 04:
I'm not saying that that's a fair reading of it, but I can see the confusion because at least on the state side, you can go up to if you didn't get it originally.

[00:27:39] Speaker 04:
And then here, he's got it right from the beginning.

[00:27:44] Speaker 04:
And so Ben could therefore think, oh, they were in tandem.

[00:27:49] Speaker 06:
I think the answer to that question is that when you're talking about, again, what Rule 11 says is you have to apprise the defendant of the maximum possible penalty.

[00:27:58] Speaker 06:
Well, at the time of the Rule 11 colony, the maximum possible penalty can only relate

[00:28:04] Speaker 06:
to the offense of conviction it relate to the possibility of violation of conditions of supervised release because you don't know what those conditions.

[00:28:15] Speaker 06:
You don't know if the defendant will actually violate them you don't know that the.

[00:28:19] Speaker 06:
the circumstances of the violation, you don't know a lot of things.

[00:28:23] Speaker 06:
And so in that respect, this was a rule 11 colloquy that matched and coalesced with, I suggest, the letter of the rule of rule 11.

[00:28:34] Speaker 06:
And so while there might be many permutations that could lead to confusion on a defendant's part, that's not the test for due process.

[00:28:43] Speaker 06:
The test for due process is, is it a definite, immediate, and largely automatic consequence?

[00:28:50] Speaker 06:
Certainly, I would suggest it was foreseeable to the defendant that there would be consequences relating to a violation of supervised release.

[00:28:57] Speaker 06:
Given these conditions, you can't expect that at the end of your carceral term, even if it was a maximum, that you would have no consequences.

[00:29:05] Speaker 06:
You would get off scot-free, as the defendant's testing is appropriate here.

[00:29:10] Speaker 04:
And there are several cases in other circuits, albeit that do discuss direct consequences.

[00:29:17] Speaker 04:
For example, some of the examples would be a consecutive sentence, mandatory special parole term, ineligibility for parole, maximum prison term, and fine for offense charge, a mandatory parole term.

[00:29:30] Speaker 04:
So what would you say are distinctions on those being direct consequences versus collateral consequences?

[00:29:35] Speaker 06:
The direct consequence here of the defensive plea was the supervised release time.

[00:29:40] Speaker 06:
That was the direct consequence of his plea.

[00:29:42] Speaker 06:
So when, for example, in the Russo case that my opponent relies on quite heavily,

[00:29:46] Speaker 06:
coupled with the Watson case from this this court um there there was a complete absence of information provided to the defendant at the rule 11 colloquy about the supervised release term or the special parole term.

[00:29:59] Speaker 06:
Russo those were mandatory.

[00:30:01] Speaker 06:
Watson that was mandatory.

[00:30:02] Speaker 06:
certainly that is part of the sentence that you have to tell the defendant about.

[00:30:07] Speaker 06:
But the consequences, I mean, supervised release conditions, most critically and saliently here, they don't become operational until you finish your carceral term.

[00:30:19] Speaker 06:
You

[00:30:20] Speaker 06:
impose conditions of supervised release at the time of the original sentence, but they do not kick in.

[00:30:25] Speaker 06:
They do not become operational until you finish your carceral term.

[00:30:30] Speaker 06:
So the notion that you would have to go through chapter and verse about the permutations of a hypothetical violation and a possible imprisonment.

[00:30:39] Speaker 01:
Why would that be necessary?

[00:30:40] Speaker 01:
Mr. Kramer suggested all it would take is to say a violation of these requirements may result in you being imprisoned for conditional term.

[00:30:47] Speaker 06:
Certainly that would be a laudatory thing for a district court to do.

[00:30:54] Speaker 06:
I don't suggest for one moment that that's not something that would be beneficial.

[00:30:59] Speaker 06:
I'm suggesting that in the context of a constitutional due process claim, which is all that the defendant has

[00:31:04] Speaker 06:
raised here, that additional ammunition is not constitutionally required.

[00:31:10] Speaker 06:
And again, I circle back around to the terms of rule 11.

[00:31:13] Speaker 06:
I see them as quite plain.

[00:31:15] Speaker 06:
It's imprisonment, it's the possibility of fine, and the term of supervised release.

[00:31:26] Speaker 01:
To the extent you've addressed the distinction between direct and collateral consequence, I think

[00:31:34] Speaker 01:
Mr. Kramer's point in common law terms would be confess and avoid.

[00:31:40] Speaker 01:
Because his point is not that this meets some criteria for being collateral, but rather that it is, it's part of the original sentence, it cannot be collateral.

[00:31:54] Speaker 05:
Right.

[00:31:56] Speaker 06:
And I know he relies heavily on the Johnson decision and the Johnson phrase treating post-revocation.

[00:32:04] Speaker 06:
We attribute post-revocation penalties to the original conviction.

[00:32:08] Speaker 06:
I would suggest there's nothing irreconcilable.

[00:32:11] Speaker 06:
about treating post revocation penalties as attributable to the original conviction on the one hand and on the other hand not requiring a district court judge to explain the permutations of a hostile revocation on the other hand and I say that

[00:32:28] Speaker 06:
because of the special operation of supervised release.

[00:32:32] Speaker 06:
When Johnson made that declaration, it cited to a case United States versus Wyatt and approvingly cited to United States versus Wyatt, which is a seventh circuit.

[00:32:42] Speaker 06:
And I think this is the proper framework by which we analyze this claim.

[00:32:47] Speaker 06:
Why I said the proper understanding of a revocation of supervised reliefs is simply that by engaging in prohibited conduct during the term of supervised release, a defendant triggers a condition that permits modification of the terms of a supervised relief.

[00:33:03] Speaker 06:
And that's at 102 F3 to 245.

[00:33:06] Speaker 06:
So here we have supervised release term, the conditions they were imposed at the time of sentencing.

[00:33:13] Speaker 06:
That is undoubtedly part of the sentence.

[00:33:15] Speaker 06:
That's why rule 11 says you must tell him about the term, about the rule, about the supervised release term.

[00:33:22] Speaker 06:
But you don't trigger the condition that permits modification

[00:33:27] Speaker 06:
until the conditions kick in, until the supervised release terms kick in at the end of the carceral term.

[00:33:33] Speaker 06:
And that is the difference between a direct and a collateral consequence.

[00:33:37] Speaker 06:
So I don't think there's anything inconsistent about saying a post revocation penalty is attributable to the original conviction.

[00:33:45] Speaker 06:
It is attributable to the original conviction.

[00:33:48] Speaker 06:
You have as part of your original term of conviction, original conviction, you have a sentence that has constituent parts, a carceral term, perhaps, and a supervised release term.

[00:33:59] Speaker 06:
The defendant was given notice of both those.

[00:34:01] Speaker 06:
What the court did not have to do is go to the next step under the due process clause and say, oh, and by the way, if you violate this condition of supervised release, there may be additional prison time.

[00:34:20] Speaker 05:
If there are no additional questions, I would ask that you affirm the judgment and conviction below.

[00:34:25] Speaker 05:
Thank you very much, Your Honor.

[00:34:26] Speaker 00:
Thank you.

[00:34:29] Speaker 00:
Mr. Cramer, we'll give you two minutes on rebuttal.

[00:34:31] Speaker 02:
Thank you, Your Honor.

[00:34:33] Speaker 02:
The government used various words, but they don't refer to Johnson about what Johnson said.

[00:34:40] Speaker 02:
But in Heyman, they were quite clear.

[00:34:43] Speaker 02:
Supervised release punishments arise from and are treated as part of the penalty for the initial offense.

[00:34:49] Speaker 02:
And in Montt versus United States, they said they are a form of punishment

[00:34:54] Speaker 02:
that Congress prescribes, along with a term of imprisonment, as part of the same sentence.

[00:34:59] Speaker 02:
So I never heard the government explain how part of the same sentence could be a collateral consequence.

[00:35:05] Speaker 02:
Also, I completely disagree about Rule 11 for reasons that are discussed at length in the brief.

[00:35:11] Speaker 02:
I think only the government could say an amendment, the 2002 amendments, which were intended to broaden

[00:35:19] Speaker 02:
the advice of it about the effects of it could somehow restricted the defendants restricted the advice that should be given it's discussed at length in the brief i can discuss it but um in any event is i read all the amendments to rule 11 it's still required under

[00:35:41] Speaker 02:
They never said that this removal of the words reflective.

[00:35:47] Speaker 02:
It says the changes are intended to be stylistic only except as noted below.

[00:35:51] Speaker 02:
The only note below about supervised release was it was intended to broaden the advice that was given to a defendant.

[00:35:59] Speaker 02:
And finally, there is one case

[00:36:01] Speaker 02:
It's surprising there are very few cases that seem to be close to this.

[00:36:05] Speaker 02:
The Cook case was relied upon heavily by the government and the district court.

[00:36:09] Speaker 02:
They don't seem, they seem to have backed away from it, but the

[00:36:14] Speaker 02:
In that case, it was quite simple.

[00:36:16] Speaker 02:
The person was advised of exactly what we were talking about, which is that if you violate supervised release, you can be sent to an additional term of imprisonment.

[00:36:26] Speaker 02:
And the court in Cook said that took care of it, all they had to do.

[00:36:30] Speaker 02:
And the Gauguin case that the government stood up here and relied.

[00:36:34] Speaker 02:
By the way, in the district court, they never argued this collateral.

[00:36:38] Speaker 02:
consequences argument.

[00:36:39] Speaker 02:
This is one the district court did on its own.

[00:36:43] Speaker 02:
And I recognize, obviously, that the basis for that is before this court.

[00:36:47] Speaker 02:
But the government never argued the distinction between collateral and direct consequences in the district court.

[00:36:53] Speaker 02:
And the fatal flaw with the Gargan case is that it said that supervised release revocation and sentences are not part of the original offense.

[00:37:02] Speaker 02:
and why they said that 16 years after Johnson was decided and three years before Mont and Hayman were decided.

[00:37:14] Speaker 02:
And so the whole underlying basis for the Gauguin decision and the difficulties were because it said the basis for that was that the district court said wrongly as the Supreme Court has said that it was not part of the

[00:37:30] Speaker 02:
that shouldn't be entitled to any weight.

[00:37:31] Speaker 02:
Thank you very much.

[00:37:32] Speaker 02:
And I would ask you to vacate the term of the supervisory release.

[00:37:38] Speaker 00:
Thank you.

[00:37:38] Speaker 00:
The case is submitted.