[00:00:00] Speaker 04:
22-3070.

[00:00:03] Speaker 04:
United States of America versus Robert Keith Backer at balance.

[00:00:07] Speaker 04:
Mr. Kirsch, Marty at balance.

[00:00:08] Speaker 04:
Mr. Hobel, Marty Eppoli.

[00:00:11] Speaker 01:
Good morning, counsel.

[00:00:13] Speaker 01:
Mr. Kirsch, please proceed when you're ready.

[00:00:15] Speaker 01:
Good morning.

[00:00:16] Speaker 00:
May I please support Stephen Kirsch on behalf of Robert Packer.

[00:00:20] Speaker 00:
And I'll just start by saying that

[00:00:23] Speaker 00:
fully appreciate the question of the case.

[00:00:26] Speaker 00:
Mr. Packer has served his sentence that was imposed by Judge Nichols, and there was no supervised release as part of the sentence that was imposed on him.

[00:00:37] Speaker 00:
There is, it does remain, however, a collateral consequence, which means the case is not moved.

[00:00:43] Speaker 00:
The collateral consequence was the imposition of, whether we call it a fine or whether we call it a restitution,

[00:00:49] Speaker 00:
there was a monetary component to the sentence that was instituted or that was made part of the sentence.

[00:00:57] Speaker 00:
And we go back through the trial record.

[00:00:59] Speaker 04:
Can I ask, that was the restitution, I think, $500 restitution?

[00:01:03] Speaker 04:
Yes.

[00:01:04] Speaker 04:
Well, that restitution is paying back sort of the victim the damage caused.

[00:01:11] Speaker 04:
And that was due to his presence and participation at the Capitol, which wouldn't change.

[00:01:18] Speaker 04:
What evidence is there that that

[00:01:21] Speaker 04:
but it turned it all on the length of the sentence.

[00:01:24] Speaker 04:
Well, they wouldn't have had the same $500 restitution, even if he'd gotten as you had as a council.

[00:01:29] Speaker 04:
Well, I had asked for no, um, no sentence, no prison sentence at all.

[00:01:35] Speaker 00:
Rest.

[00:01:36] Speaker 00:
The amount of the restitution is discretionary, not a mandatory amount.

[00:01:39] Speaker 00:
The only mandatory assessment was the $10 assessment.

[00:01:42] Speaker 00:
So judge Nichols had discretion to give a different amount of restitution.

[00:01:47] Speaker 00:
And I understand that it was part of the plea agreement that he agreed to restitution in the amount of $500.

[00:01:52] Speaker 00:
However, that was agreed to before Mr. Packer was made aware that this was an illegal sentence in violation of his First Amendment rights.

[00:02:02] Speaker 04:
So even though... It was before the sentencing hearing.

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

[00:02:06] Speaker 04:
And the restitution is, does that go to the...

[00:02:09] Speaker 04:
Architect of the Capitol, or where does that money go?

[00:02:11] Speaker 00:
It goes to the architect.

[00:02:12] Speaker 04:
For damage caused by his presence there.

[00:02:14] Speaker 04:
So it has nothing to do with the length of the sentence.

[00:02:16] Speaker 00:
It's not the length of the sentence.

[00:02:18] Speaker 00:
But it still is part of the imposition of the sentence.

[00:02:22] Speaker 00:
And I would emphasize to the court that where a trial court imposes restitution, there's a whole procedure that's outlined in the United States Code.

[00:02:31] Speaker 00:
It's 18 in the United States Code 3664, where there's before a sentence is imposed or restitution is imposed,

[00:02:39] Speaker 00:
There are requirements that the government has to introduce evidence.

[00:02:42] Speaker 00:
The defendant has to introduce related to his indigency, his assets, and it has to be some sort of way to value loss for the restitution because it is compensatory.

[00:02:55] Speaker 00:
But as the Supreme Court has said, it's also punitive.

[00:02:59] Speaker 00:
So there's two parts to it.

[00:03:01] Speaker 04:
Is any is one of those factors the length of the sentence imposed?

[00:03:04] Speaker 04:
in calculating restitution, does the length of the sentence?

[00:03:07] Speaker 00:
No, the length of the sentence does not matter in terms of the imposition of the sentence.

[00:03:12] Speaker 03:
So we would submit to the court that... But have you considered sentencing guidelines, too, that to the extent that you have a sentence of a certain length, later on it could impose certain amounts of points, whether it's one, two, or three, because you would have now had that prior sentence that could then make you have a higher guideline sentence the next time.

[00:03:34] Speaker 00:
That's correct.

[00:03:35] Speaker 00:
But as Judge Nichols acknowledged, everyone agreed.

[00:03:38] Speaker 00:
Sentencing guidelines in this case were not an issue because it's a question.

[00:03:42] Speaker 03:
Yeah, I understand that.

[00:03:44] Speaker 03:
Not for here, but I'm saying the fact of having the conviction and then the sentence

[00:03:51] Speaker 03:
for another period later, then this becomes on the record and is a consideration for a higher sentencing guideline calculation.

[00:03:59] Speaker 00:
Yes, it does.

[00:04:00] Speaker 00:
Yes, it does.

[00:04:01] Speaker 00:
I mean, it follows Mr. Packer down the road if he's ever convicted in the federal court.

[00:04:06] Speaker 01:
Certainly, that would show up as part of his... But are you relying on that to counter moodness?

[00:04:12] Speaker 01:
that potential consequence or you're relying on that mean what you started with the restitution right which I which I understand and on this one is the prospect that someone might commit another offense something that we take into account deciding whether a case is.

[00:04:26] Speaker 01:
Moved because sentences been served or do we.

[00:04:30] Speaker 01:
Not factor in the prospect that someone that's in which case there would be sentencing repercussions down the line.

[00:04:36] Speaker 00:
Yes, well, a primary argument is that the collateral consequence, number one, is the fact that there's restitution, and it's a discretionary amount.

[00:04:45] Speaker 00:
But in response to Judge Child's question, I agree that this is something that, should Mr. Packer again come before a federal court for sentencing on another matter, this will be a part of his sentencing guide.

[00:04:56] Speaker 01:
It will be.

[00:04:57] Speaker 01:
It could be.

[00:04:58] Speaker 01:
I guess all I'm asking is, are you relying on that, that second part of it, in arguing against mutinous, or are you only relying on

[00:05:05] Speaker 01:
the restitutionary award of $500.

[00:05:07] Speaker 00:
We're incorporating both.

[00:05:08] Speaker 01:
You're relying on the second part, too.

[00:05:10] Speaker 01:
So your read of mootness principles is that we do take into account the possibility that the defendant might commit another offense, deciding whether the fact that the sentence has passed makes the case moot?

[00:05:27] Speaker 00:
Well, there is a potential.

[00:05:28] Speaker 00:
That's correct.

[00:05:28] Speaker 00:
I mean, there is a possibility.

[00:05:30] Speaker 00:
There's a potential, but it's not

[00:05:32] Speaker 00:
I would submit that the restitution order is definite.

[00:05:35] Speaker 00:
We know that there is an order of repayment, and that has not yet been satisfied.

[00:05:40] Speaker 00:
So to this day, whether we call it restitution or we call it fine, it's still a requirement imposed on Mr. Packer.

[00:05:47] Speaker 00:
And I also know for the court that reading the trial record, it's very ambiguous what Judge Nichols was saying.

[00:05:54] Speaker 00:
I understand he mentioned

[00:05:55] Speaker 00:
restitution at the sentencing hearing.

[00:05:59] Speaker 00:
But if you go back in the plea agreement itself, he talks very specifically on the plea agreement, talks very specifically about a fine, and then talks generally about restitution.

[00:06:11] Speaker 00:
And Judge Nichols also said in his sentencing allocution to the defendant, he said, well, I've imposed fines as low as $500.

[00:06:20] Speaker 00:
So clearly, the notion of a fine

[00:06:22] Speaker 00:
was on his mind, and I believe that the records demonstrates that he conflated it.

[00:06:27] Speaker 00:
But we also take the position that really doesn't matter, because the imposition of a monetary sanction is an adequate collateral consequence, such that this case is not moved.

[00:06:39] Speaker 00:
And getting to the substance, getting beyond the procedure, getting into the substance, there's no question

[00:06:47] Speaker 00:
No one's disputing that the t-shirt bearing the words Camp Auschwitz was utterly offensive, and it was utterly offensive.

[00:06:56] Speaker 00:
But it is, Mr. Packer was still entitled to protect, to First Amendment protections.

[00:07:01] Speaker 00:
And even though Judge Nichols sentenced Mr. Packer within the guidelines, he still had discretion

[00:07:09] Speaker 00:
Now, Mr. Packard was sentenced to a period of incarceration of 75 days.

[00:07:13] Speaker 00:
We could have given him a lesser sentence, or we could have given him probation.

[00:07:18] Speaker 01:
What's your argument as to the appeal waiver?

[00:07:20] Speaker 01:
Because that was raised by the government in its brief, and then we didn't get a response from you about the appeal waiver.

[00:07:27] Speaker 00:
It's not waived, because our argument is that the sentence was illegal, because it violated the First Amendment rights.

[00:07:34] Speaker 03:
Is that your only reason?

[00:07:36] Speaker 03:
And I ask that because any plea

[00:07:38] Speaker 03:
And plea agreement should be knowing voluntarily and intelligently weighed.

[00:07:43] Speaker 03:
And here, a plea agreement in and of itself doesn't get us not necessarily to rely only upon that, but you're only going to rely upon the plea colloquy by the judge.

[00:07:54] Speaker 03:
But there was no transcript attached here.

[00:07:58] Speaker 00:
Right.

[00:07:58] Speaker 00:
But our position is that when they went into the plea and they submitted the paperwork, everyone assumed

[00:08:07] Speaker 00:
that this was going to be a constitutionally permissible plea.

[00:08:12] Speaker 00:
And it's after the plea is entered that the government files its very lengthy sentencing memorandum and highly emphasizes the t-shirt multiple times, talking about the Camp Auschwitz t-shirt.

[00:08:25] Speaker 01:
then at the sentencing judge that equals me very specific right isn't it in the nature of an appeal waiver that comes before sentencing that you don't know whether there's going to be a legal problem that arises in sentencing and everybody everybody understands that.

[00:08:38] Speaker 01:
But part of the bargain is even though we don't know what the legal problem is that might arise waving the ability to challenge that on appeal.

[00:08:46] Speaker 00:
I agree through honor that this is something that you expect going to play, but you don't expect that judge is going to

[00:08:55] Speaker 00:
violate the Constitutional Rights.

[00:08:57] Speaker 00:
So an appeal waiver is only good if the plea itself and the allocutions and the judge's sentence are legal.

[00:09:06] Speaker 00:
When they're illegal, then the plea waiver no longer is valid.

[00:09:11] Speaker 01:
So if you thought that Judge Nichols, that the district court misapplied the guidelines,

[00:09:18] Speaker 01:
We wouldn't know that at the time that the appeal waiver was entered into, but then it comes to pass during the sentencing hearing that there's a misapplication of the guidelines.

[00:09:26] Speaker 01:
Would you be arguing, well, nobody would have anticipated that there would have been a misapplication of the guidelines, and therefore the appeal waiver doesn't apply, because everybody assumed that it would be done strictly in accordance with law, including the statutes, including the guidelines?

[00:09:38] Speaker 00:
I would argue that, and that specifically is permissible.

[00:09:41] Speaker 00:
And that's in virtually every plea in the district court is that

[00:09:44] Speaker 00:
If the judge goes beyond the guidelines, it doesn't follow the guidelines or doesn't give a good reason.

[00:09:51] Speaker 00:
Going beyond the guidelines that is available.

[00:09:54] Speaker 03:
And but here when you and again, you did not attach the transcript, but here we would be looking to the plea colloquy.

[00:10:04] Speaker 03:
to understand that even if comments are made earlier or there's some reference to the T shirt, it's at the time of sentencing when the judge kind of goes over the factors as to how they got to that particular sentence.

[00:10:18] Speaker 03:
Was that a consideration with respect to the T shirt?

[00:10:21] Speaker 00:
Yes, and we reference that in the brief.

[00:10:24] Speaker 03:
What I'm talking about, you can have comments earlier on, you could have it in writing, you could have it orally at the plea colloquy, but when you get to the point of actually sentencing and the judge is providing their reasoning and their rationale, and there is no mention of the t-shirt at that time, would that make a difference?

[00:10:42] Speaker 00:
Well, it would make a difference, but in this case, at the sentencing hearing, when the judge specifically referenced the 3553 factors, went through the 3553 factors,

[00:10:52] Speaker 00:
But then he went into the t-shirt, and he assigned a nefarious intent to the t-shirt.

[00:10:59] Speaker 00:
And he said, it's left for us to infer what the t-shirt means.

[00:11:03] Speaker 03:
And the best- And you would suggest that that was occurring right at the time of the sentence.

[00:11:08] Speaker 00:
Yes.

[00:11:08] Speaker 03:
As part of the factor.

[00:11:09] Speaker 00:
Yes.

[00:11:10] Speaker 00:
And the best example I could think of is that if Mr. Packard had been wearing a t-shirt that says, I support the First Amendment, if the words on the t-shirt were that, it would not have been a reference

[00:11:22] Speaker 00:
in the sentencing memorandum to those words.

[00:11:24] Speaker 00:
And now it would not have been a reference by Judge Nichols in his winning post-sentence to those words.

[00:11:31] Speaker 00:
It was strictly because it said, Camp Auschwitz on it.

[00:11:36] Speaker 00:
And on the back, there were other offensive words.

[00:11:39] Speaker 00:
And there's no evidence in the record that that t-shirt was being worn to incite the crowd, to incite the riot,

[00:11:49] Speaker 00:
to advance Nazi theory.

[00:11:51] Speaker 00:
There's absolutely nothing in the record, which in the cases relied upon by the United States, those were factors where the court upheld using the offensive language as part of the sentence.

[00:12:02] Speaker 00:
Mr. Packett, there's nothing in the record to suggest any intent on his part.

[00:12:07] Speaker 00:
And the only reference in the record is that he was interviewed after he was arrested, and he was asked, why were you wearing that offensive t-shirt?

[00:12:15] Speaker 00:
And his answer was, because it was cold out.

[00:12:18] Speaker 01:
Are you taking the position that, um, that the what you characterize and as understandably characterized an offensive T shirt that that offensive T shirt can't be taken into account at all period for sentencing purposes?

[00:12:32] Speaker 01:
No, I'm sorry.

[00:12:33] Speaker 01:
Or are you taking the position that the district court didn't explain how it was taking it into account?

[00:12:41] Speaker 01:
And there may be some valid reasons to take it into account, but we don't know if it was sort of valid reason or invalid reasons.

[00:12:46] Speaker 01:
Because part of what you're saying makes it

[00:12:47] Speaker 01:
Sound like you're suggesting that that act can't be taken into account at all for sentencing.

[00:12:52] Speaker 01:
Period.

[00:12:54] Speaker 00:
Appreciate your question.

[00:12:56] Speaker 00:
If the t-shirt, if the offensive language on the t-shirt related to future dangerousness, then under precedent, yes, it could be taken into account.

[00:13:07] Speaker 00:
There's nothing here to suggest that it could be used, could have been used for future dangerousness, because there was nothing in the record to support that.

[00:13:15] Speaker 00:
If the record showed

[00:13:17] Speaker 00:
that it was used to incite others to act in a certain way, then it could be used.

[00:13:23] Speaker 00:
So generally, there may be ways that it could have been relevant.

[00:13:26] Speaker 00:
But in this specific context, there was absolutely nothing in this record, nothing about the actions of Mr. Packer to support using that t-shirt in any way.

[00:13:38] Speaker 00:
And again, as Nicko says, he said he inferred some type of intent from it.

[00:13:44] Speaker 00:
And that, we would submit, has violated Mr.

[00:13:47] Speaker 04:
What if the sweatshirt said stop the count?

[00:13:53] Speaker 00:
I'm sorry.

[00:13:54] Speaker 04:
What if the sweatshirt said stop the count?

[00:13:57] Speaker 04:
Would that be considered in sentencing?

[00:14:00] Speaker 00:
It may have been because that's what the purpose of the rally was, but this was- That's still First Amendment speech.

[00:14:09] Speaker 00:
But if it's used to incite action,

[00:14:13] Speaker 00:
And again, we need more facts to put it into context.

[00:14:17] Speaker 00:
It might be something that you saw.

[00:14:19] Speaker 00:
Another example I would use is we go back to Charlottesville in 2017, where the people are marching and they're chanting, the Jews will not replace us.

[00:14:29] Speaker 00:
If he had been wearing a Camp Auschwitz t-shirt in that context, there may have been something, that may have been a factor that a judge could have used at a sentencing hearing.

[00:14:38] Speaker 00:
But there's nothing in this record to come close to that, to support that.

[00:14:44] Speaker 00:
And again, the only reference is he said he was cold.

[00:14:47] Speaker 00:
So there's nothing to show that he, himself, is a Nazi sympathizer.

[00:14:51] Speaker 00:
There's nothing to suggest that he was promoting Nazi ideology or anything else.

[00:14:58] Speaker 00:
He's just wearing a t-shirt with offensive words.

[00:15:01] Speaker 00:
And I would submit that's protected.

[00:15:04] Speaker 03:
I mean, generally, you would be providing the transcript under our pellet rules.

[00:15:08] Speaker 03:
Should we then, on our own, look at the transcript so that we can make an assessment?

[00:15:13] Speaker 01:
Yes.

[00:15:14] Speaker 01:
Can I just ask one more question about the sentencing, the appeal waiver?

[00:15:21] Speaker 01:
So just so I'm understanding your argument.

[00:15:23] Speaker 01:
I know that the appeal waiver provisions often have a carve out for sentences above the statutory maximum.

[00:15:30] Speaker 01:
So I'm not talking about a misapplication of the guidelines that would take you above the statutory maximum.

[00:15:36] Speaker 01:
I'm just saying that there's a guideline factor that is applied by the district court in a way that doesn't seem consistent with the guidelines.

[00:15:44] Speaker 01:
That there's legal claim that that factor actually shouldn't have been applied in the same way.

[00:15:49] Speaker 01:
It doesn't come into play.

[00:15:51] Speaker 01:
Are you saying that the appeal waiver doesn't cover that kind of claim, too, in the same way that it doesn't cover the kind of claim that you're making now?

[00:15:58] Speaker 01:
Or are you drawing a distinction with the type of claim you're making now?

[00:16:02] Speaker 01:
I'm drawing a distinction because this is a violation of a constitutional right.

[00:16:07] Speaker 01:
So you're saying constitutional claims are in a different category?

[00:16:10] Speaker 00:
Well, in this category, yes, constitutional.

[00:16:13] Speaker 01:
For waiver purposes, the way appeal waivers don't cover a constitutional right.

[00:16:18] Speaker 01:
That would be our position, yes.

[00:16:20] Speaker 03:
What is your particular relief that you asked for in this regard, as he's already served the sentence?

[00:16:26] Speaker 00:
Well, we would ask for re-sentencing, remand the case for re-sentencing, and for Judge Nichols to provide further explanation for the reasons, and the only remaining collateral consequences defined, for reasons that do not pertain to the t-shirt.

[00:16:43] Speaker 00:
And again, understand that this was agreed upon.

[00:16:46] Speaker 00:
But the judge doesn't have to follow that.

[00:16:49] Speaker 00:
Like in any agreed upon plea, trial judge 11C1C says you don't have to follow.

[00:16:54] Speaker 00:
Judges typically will, but they do make findings.

[00:16:57] Speaker 00:
But in this case, those findings were not made and the judge put it in.

[00:17:02] Speaker 04:
Did he reference a sweatshirt at any time when he was discussing the amount of restitution ordered?

[00:17:08] Speaker 00:
No, but he did.

[00:17:09] Speaker 04:
You have the quotes for the length of the sentence.

[00:17:11] Speaker 04:
Yes.

[00:17:12] Speaker 04:
But not for the restitution, which was agreed upon.

[00:17:14] Speaker 00:
No, and he only briefly mentioned.

[00:17:16] Speaker 04:
That was as low as he's ever gone before, anyhow.

[00:17:18] Speaker 00:
That's right.

[00:17:19] Speaker 00:
Well, yes, that.

[00:17:20] Speaker 00:
Well, he said it.

[00:17:21] Speaker 00:
That's as low as I've gone in the context of a fine that position.

[00:17:24] Speaker 00:
It doesn't really matter.

[00:17:26] Speaker 00:
Find a risk.

[00:17:27] Speaker 04:
But you don't whether it's called final restitution.

[00:17:29] Speaker 00:
It's the same for you in this context.

[00:17:32] Speaker 00:
Yes.

[00:17:34] Speaker 01:
Make sure my colleagues don't have additional questions for you this time.

[00:17:36] Speaker 01:
We'll give you a little time for you.

[00:17:38] Speaker 01:
So Mr. Hubbell,

[00:18:00] Speaker 02:
May it please the court, Mark Hubbell for the United States.

[00:18:03] Speaker 02:
This appeal should be dismissed as moot.

[00:18:06] Speaker 02:
Hacker challenges only the length of his prison sentence.

[00:18:11] Speaker 02:
He's already served that sentence, and he was released on December 30.

[00:18:15] Speaker 02:
To the extent that he is now claiming there are continuing collateral consequences associated with the $500 restitution, that restitution he agreed to pay has nothing to do with the length of the sentence.

[00:18:26] Speaker 04:
Could he raise restitution as a collateral consequence in his brief?

[00:18:30] Speaker 02:
Uh, no, I don't believe he addressed rested to you.

[00:18:32] Speaker 02:
I'm sorry, moving this all brief and he did not file a reply brief responding to our movement.

[00:18:37] Speaker 02:
Sorry.

[00:18:38] Speaker 04:
I direct the court just to be pretty clearly argued that he thought the length of the sentence imposed was impacted by the sweatshirt impermissibly affected by the sweatshirt he was wearing.

[00:18:49] Speaker 04:
But he did not do that with respect to restitution.

[00:18:52] Speaker 02:
That's correct.

[00:18:54] Speaker 02:
I just direct the court's attention to page 174 of the appendix, which is the district court statement that Packer agreed to pay the $500 restitution.

[00:19:04] Speaker 02:
I think the court may have just misstoken when it said that.

[00:19:07] Speaker 01:
But I'm not sure I follow the agreement part of it.

[00:19:11] Speaker 01:
You layered in two things.

[00:19:12] Speaker 01:
One is that there was an agreement, and the second is that the length of the sentence didn't vary based on it.

[00:19:16] Speaker 01:
Those two things don't necessarily go together.

[00:19:18] Speaker 01:
And if the agreement part of it

[00:19:21] Speaker 01:
it.

[00:19:21] Speaker 01:
Let's suppose restitution does turn on a blanket sentence and the fact that he agrees to it as part of a plea agreement.

[00:19:27] Speaker 01:
Would that mean that it doesn't get taken into account for his purposes?

[00:19:31] Speaker 01:
Because then if you could send it back and then the restitutionary award would potentially be different, um, even though he agreed to that's right.

[00:19:42] Speaker ?:
I

[00:19:44] Speaker 02:
I'm tempted to say, I think he's still at a high hurdle on mootness given the agreement.

[00:19:49] Speaker 02:
But the key factor here, Your Honor, is that the length of his prison sentence had nothing to do with the restitution.

[00:20:00] Speaker 02:
So the argument today that notionally, if the case was remanded for re-sentencing on the length of the sentence, that the restitution would alter is just completely speculative.

[00:20:12] Speaker 02:
Um, remand for a resentencing would be an empty exercise.

[00:20:18] Speaker 02:
So, um, you know, we would urge this court to dismiss this as moot.

[00:20:22] Speaker 02:
Let me just quickly address his, um, his point about future sentencing and that his sentence might be enhanced in the future.

[00:20:28] Speaker 02:
The Supreme Court Spencer v. Kemna has been, uh, was pretty clear on, on this and we cited Spencer in our brief.

[00:20:36] Speaker 02:
A similar claim was likewise considered and rejected in Wayne B. Williams because it was contingent upon respondents violating the law, getting caught and being convicted.

[00:20:45] Speaker 02:
Respondents themselves are able and indeed required by law to prevent such a possibility from occurring.

[00:20:52] Speaker 02:
The specular prospect that Packer might reoffend and be subject to additional sentencing, that's within his control.

[00:21:00] Speaker 02:
That's not sufficient to maintain standing where his release from prison has already mooted his challenge to the sentence.

[00:21:09] Speaker 04:
Do you know if Virginia sentencing guidelines or whatever its sentencing system is, if he were convicted again under Virginia law, which is what his criminal history is, that would factor in the sentence?

[00:21:22] Speaker 02:
I don't, Your Honor, I apologize.

[00:21:26] Speaker 04:
There's some argument there that he's not in control of his behavior when it comes to alcoholism.

[00:21:30] Speaker 04:
So it's not so much the choice making that you just referenced in Spencer.

[00:21:35] Speaker 02:
Right.

[00:21:37] Speaker 02:
Again, I would just direct, you know,

[00:21:40] Speaker 02:
I'm not familiar with Virginia law at work, but I don't think it matters.

[00:21:45] Speaker 02:
As a legal matter, the prospect of having your sentence enhanced in a future proceeding, that's insufficient to maintain standing to a sentencing challenge.

[00:21:57] Speaker 04:
And back to the restitution one more time.

[00:21:58] Speaker 04:
Sorry.

[00:21:58] Speaker 04:
I know you want to move on, but you said it's speculative.

[00:22:06] Speaker 04:
The legal factors that courts consider in setting the amount of restitution, the facts, and the legal principles that they consider, does length of sentence, at least for misdemeanors like this, factor in at all?

[00:22:21] Speaker 02:
Your honor, I have to apologize.

[00:22:23] Speaker 02:
I'm not sure I'm prepared to answer that in part because I'm hearing for the first time today the restitution response to our mootness argument, because again, Packer did not file a reply brief.

[00:22:35] Speaker 02:
I note here that on this record,

[00:22:37] Speaker 02:
There is no connection between the length of the of the sense that he received and the restitution.

[00:22:47] Speaker 02:
The district court here carefully went through all the sentencing factors considered the nature of his conduct background.

[00:22:53] Speaker 02:
The restitution because he agreed to it was was sort of a imposed at the end without much discussion.

[00:22:59] Speaker 04:
It wasn't part of the discussion of the fact and he had agreed in advance in the appeal or sorry in the.

[00:23:05] Speaker 04:
in his plea agreement to the $500 for restitution.

[00:23:10] Speaker 02:
You know, unfortunately off the top of my head, I don't remember.

[00:23:13] Speaker 02:
I think that's what Mr. Keir said earlier.

[00:23:18] Speaker 04:
But, you know, certainly at the time... He hadn't agreed to the amount of sentence, the length of the sentence.

[00:23:23] Speaker 02:
He did not, but he did obviously appeal his right to, he did waive his right to appeal the sentence unless it was over the statutory maximum.

[00:23:31] Speaker 02:
Everybody's agreed here that the sentence he received is below the six-month statutory maximum.

[00:23:36] Speaker 02:
So even if the court were not to disagree with us on moodiness, we'd ask this court to follow its ordinary course.

[00:23:46] Speaker 02:
enforce the appeal wave.

[00:23:48] Speaker 02:
I know Judge Childs you'd asked about the plea transcript.

[00:23:51] Speaker 02:
We did not have that at the time that we filed our opposition brief, but we filed a copy of the plea transcript last week.

[00:24:00] Speaker 02:
And the district court did review the terms of the appeal waiver with

[00:24:07] Speaker 02:
with Hacker did accurately state you're waiving the right to appeal unless I give you a sentence above the statutory maximum, which did not occur here.

[00:24:15] Speaker 02:
So this is not a case like Kaufman, which Hacker cited in his opening brief in which the district court essentially

[00:24:26] Speaker 02:
rewrote the terms of the appeal waiver on the spot during the plea colloquy.

[00:24:31] Speaker 02:
The district court accurately repeated the terms of the appeal waiver in the plea agreement.

[00:24:37] Speaker 02:
Those terms should be on here.

[00:24:40] Speaker 01:
So we do have decisions on appeal waivers that say that there are certain situations in which we won't enforce an appeal waiver.

[00:24:45] Speaker 01:
And one of them is when the sentencing court, what we said, is rest a sentence on a constitutionally impermissible factor, such as the defendant's race or religion.

[00:24:55] Speaker 02:
That's that's right on the court did say that with the gilling case and we cited that in our in our brief that did not occur here.

[00:25:03] Speaker 01:
Isn't that his claim that the sent it's based on a constitutionally impermissible factor.

[00:25:09] Speaker 02:
That is that is his claim.

[00:25:11] Speaker 02:
I'm happy to address that did not that did not occur here.

[00:25:16] Speaker 02:
The

[00:25:17] Speaker 01:
uh the the sweatshirt was you wore it during his participation in the that's on the merits of the claim and um I want to hear your argument of the merits but I guess what I'm asking is in terms of the waiver if that if that's a basis to not enforce a waiver then the enforceability waiver doesn't turn on whether the claim is valid or not

[00:25:37] Speaker 02:
And I think what it what it what in effect does it narrows the scope of the miss will claim he could bring so for instance.

[00:25:46] Speaker 02:
You would ask, Mr. Here's whether he was appealing that you know whether the district court was.

[00:25:54] Speaker 02:
you know, gave a sort of sufficiently detailed explanation for his reasons for relying on the sweatshirt in part.

[00:26:04] Speaker 02:
That type of claim would be barred by the appeal waiver, clearly going to sort of a procedural reasonableness of imposing the sentence and relying on that fact.

[00:26:12] Speaker 02:
So it does narrow the scope of the claim and, you know, again, to reach through the appeal waiver, to reach through mootness too, which we,

[00:26:24] Speaker 02:
I'm done.

[00:26:25] Speaker 02:
But, um, Mr. Ted Packer really has to argue that the have to be a very plain person in violation.

[00:26:35] Speaker 02:
That's not means Packer was wearing.

[00:26:39] Speaker 02:
It's at Camp Auschwitz staff at Camp Auschwitz.

[00:26:42] Speaker 02:
My identification with death camp guards at the scene of the rally.

[00:26:48] Speaker 02:
you know, to the extent that, um, backers now arguing that a stop the steel sign, uh, would be, uh, something permissible to consider because it shows your purpose or intent showing in, in joining the riot.

[00:27:00] Speaker 02:
Um, certainly, uh, how switch sweatshirt, uh, demonstrates or at least raises an inference of purpose for intent and motive.

[00:27:10] Speaker 04:
Now, how does it connect to this?

[00:27:11] Speaker 04:
I mean, he made the distinction between maybe the Charlottesville March and this one, so that's what.

[00:27:21] Speaker 04:
I didn't see from the district court and I'm not naturally getting is what is the connection?

[00:27:25] Speaker 02:
So I like your honor from the government sentencing allocation where we did draw this connection.

[00:27:30] Speaker 02:
Uh, pages 148 to 49 of the appendix.

[00:27:34] Speaker 02:
Um, and Mr Packer was everywhere that violence happened except for the rotunda stores.

[00:27:39] Speaker 02:
Your honor, he was everywhere else.

[00:27:41] Speaker 02:
He broadcast his intention for joining the riot.

[00:27:44] Speaker 02:
He wanted to support the subversion of our Republican, keep a dictatorial ruler in place by force and violence.

[00:27:50] Speaker 02:
and his words on his clothing showed you his intent.

[00:27:56] Speaker 04:
His intent was?

[00:27:57] Speaker 02:
In order to participate in the mob, the inference that the shirt raises is that in participating in the mob attack in the Capitol, he was seeking to participate in the violent overthrow of our democracy, our republic.

[00:28:14] Speaker 02:
In his sentencing memorandum, he compared himself to Forrest Gump, sort of a passive peaceful observer.

[00:28:20] Speaker 02:
And the shirt truly belies that characterization was highly relevant in sentencing.

[00:28:27] Speaker 02:
I note, too, in addition to his purpose and motive.

[00:28:30] Speaker 04:
So the point was this to connect to, like, a white supremacist desire to overthrow the government?

[00:28:37] Speaker 04:
Is that the connection between the Camp Auschwitz and I would get, like, the Stop the Steal or, you know,

[00:28:45] Speaker 04:
that government can't be trusted or something like that.

[00:28:47] Speaker 04:
But it requires a little more inferring or a stretch here to get the connection, at least in my eyes, a disgusting and appalling sweatshirt.

[00:29:02] Speaker 04:
But we have to be really, really careful in this country about when First Amendment protected activities can be a basis for imprisonment

[00:29:15] Speaker 04:
that's something very important in this country and and sometimes I can certainly if it really is right in the heart of the matter let's let's take over the capital shirt would be perfectly relevant but this one is a you gotta admit it's a few steps away no and and I want to be clear too that the government is

[00:29:39] Speaker 02:
is being careful here and is being sensitive to these First Amendment concerns.

[00:29:42] Speaker 02:
I mean, I do think that when Mr. Pierce said that the government really emphasized this shirt in our sentencing memo, that's just inaccurate.

[00:29:49] Speaker 02:
I mean, we did not foreground this shirt except to the extent that we said it was distinctive, which enables, and we included a number of pictures and screenshots from video to show Packer going to the Capitol.

[00:30:01] Speaker 02:
And we also noted that his answers to the FBI about why he was wearing it, he was cold,

[00:30:08] Speaker 02:
whereas the answer is that that indicates he was not completely forthcoming with the FBI during his debrief.

[00:30:13] Speaker 02:
And that does go to the extent of remorse.

[00:30:16] Speaker 02:
So we did not heavily emphasize this despite what Mr. Keir says in our memorandum.

[00:30:23] Speaker 04:
Well, if it's relevant, then there's no reason not to emphasize it.

[00:30:26] Speaker 04:
So I'm just trying to get the connection as to relevance, because this one seems to me harder to link up than a lot of other things one can imagine.

[00:30:35] Speaker 04:
And again, the First Amendment

[00:30:37] Speaker 04:
It's really, really important that we not imprison people for speech.

[00:30:40] Speaker 04:
Unless their speech is criminal.

[00:30:42] Speaker 02:
Understood.

[00:30:44] Speaker 02:
I would argue that the inference does, there is a clear inference linking a camp Auschwitz sweatshirt and SS t-shirt that's worn underneath the two white.

[00:30:54] Speaker 04:
Somebody saw that.

[00:30:56] Speaker 02:
Right.

[00:30:57] Speaker 02:
And I know to you know there are other legitimate sentencing purposes here that sure conveys a threat.

[00:31:03] Speaker 02:
It's intimidating it.

[00:31:06] Speaker 02:
Expresses essentially that this person.

[00:31:09] Speaker 02:
The packer.

[00:31:11] Speaker 02:
You know sympathizes with with.

[00:31:13] Speaker 02:
You know the people who killed millions of Jews and others in the Holocaust.

[00:31:19] Speaker 02:
And you know it's also as as the future dangers and Mister Kiyoshi even

[00:31:23] Speaker 02:
I believe acknowledged that we cited to United States, he spent a recent 7th circuit case in which, you know, unlike in this case where there was a clear connection between the crime and the expression or the belief of of Nazism in Schmidt, it was a felon in possession case where there was not.

[00:31:43] Speaker 02:
a connection between the crime, a clear connection between the crime and the Nazi beliefs.

[00:31:47] Speaker 02:
But the Seventh Circuit still upheld the Mr. Court's reliance on it based on the threat of future dangerousness.

[00:31:54] Speaker 03:
In the Gillian case, it mentions a waiver does not shield from review a sentence colorably alleged to rest upon a constitutionally impermissible factor.

[00:32:05] Speaker 03:
So I want you to focus on the word color, colorably.

[00:32:08] Speaker 02:
Right.

[00:32:09] Speaker 02:
We disagree that the packer has raised a color book.

[00:32:16] Speaker 02:
First of all, this is a

[00:32:20] Speaker 02:
You know, this is not a situation like the Lemon case, this court's precedent, in which there were no facts connecting, you know, in that case, it was a check cashing case, a bad check cashing case, and there were no facts connecting the defendant's association with the Black Hebrews group and the crime.

[00:32:43] Speaker 02:
Here, there is a clear connection between the crime and the shirt.

[00:32:49] Speaker 02:
He was wearing the shirt.

[00:32:50] Speaker 02:
during the crime.

[00:32:52] Speaker 02:
And the district court was permitted to draw reasonable differences that on that from that.

[00:32:56] Speaker 02:
The First Amendment did not stand in the way from the district.

[00:33:00] Speaker 02:
But you know, in the end, I returned to the mootness point.

[00:33:04] Speaker 02:
Um, you know, there is no effective remedy here.

[00:33:08] Speaker 02:
He's already served his sentence.

[00:33:09] Speaker 02:
We would ask this court to dismiss cases moot and leave the district court's judgment in place.

[00:33:16] Speaker 02:
Is there any further questions?

[00:33:19] Speaker 01:
Okay.

[00:33:20] Speaker 01:
Thank you.

[00:33:20] Speaker 01:
Thank you.

[00:33:22] Speaker 01:
Mr. Kirsh.

[00:33:22] Speaker 01:
We'll give you two minutes for rebuttal.

[00:33:30] Speaker 00:
Going back to the United States versus lemon, which is cited in our, in our brief, this court and lemon is still good law.

[00:33:38] Speaker 00:
This court and it's already been referenced by this panel, but this part first specifically said that a sentence based any degree on activities or beliefs.

[00:33:48] Speaker 00:
protected by the First Amendment is constitutionally invalid.

[00:33:53] Speaker 00:
And we would submit that that is why this case should not be dismissed.

[00:33:58] Speaker 00:
And that is why this case clearly falls within Mr. Packer's statutory right to appeal, regardless of the fact that he said he wasn't going to appeal, but that acceptance was made before he knew that there was going to be an illegal sentence imposed.

[00:34:14] Speaker 00:
And then the government argues, and again,

[00:34:17] Speaker 00:
This court has to make the final determination, but the government continues to argument that there's no connection between the two.

[00:34:26] Speaker 00:
The government argues there is a connection between the t-shirt and the crime.

[00:34:32] Speaker 00:
It's not correct.

[00:34:36] Speaker 00:
Sorry.

[00:34:36] Speaker 00:
It clearly is that I can see from the record any connection between the crime and the t-shirt.

[00:34:46] Speaker 00:
There's no references, nothing.

[00:34:47] Speaker 00:
There are no remarks by Mr Packer.

[00:34:49] Speaker 00:
There's nothing from which this court can infer.

[00:34:52] Speaker 00:
There's a connection.

[00:34:53] Speaker 00:
Judge Nichols did make that inference.

[00:34:56] Speaker 00:
He said, I have to infer this is the nefarious intent.

[00:35:01] Speaker 00:
We submit that was improper.

[00:35:03] Speaker 00:
So for all those reasons, we would submit that this case is that Mr Packer did not waive.

[00:35:08] Speaker 00:
This case is not moot.

[00:35:09] Speaker 00:
And that is First Amendment rights were in fact.

[00:35:12] Speaker 01:
Thank you.

[00:35:13] Speaker 01:
Thank you, counsel.

[00:35:14] Speaker 01:
Thank you to both counsel.

[00:35:16] Speaker 01:
I take this case under submission.

[00:35:17] Speaker 01:
Mr. Kirsch, you are appointed by the court to assist the appellant in this matter, and the court thanks you for your assistance.