[00:00:00] Speaker 03:
Case number 24-3011, United States of America versus James Little, a balance.

[00:00:07] Speaker 03:
Mr. Carpenter for the balance, and Berdyshevsky for the appellee.

[00:00:11] Speaker 05:
Mr. Carpenter.

[00:00:18] Speaker 00:
May it please the court.

[00:00:19] Speaker 00:
We are asking this court to find that the district court violated double jeopardy by increasing Mr. Little's prison sentence for a petty offense from two months to five months after his successful appeal in this court.

[00:00:33] Speaker 00:
We believe that action violated double jeopardy for two independent reasons.

[00:00:38] Speaker 00:
The first is that the Bradley rule has direct application in this case because probation and imprisonment are sentences of a different type.

[00:00:47] Speaker 00:
Second is that even if the Bradley rule did not apply, Mr. Little had a legitimate expectation of finality under this court's decision in vote.

[00:00:57] Speaker 05:
Why would we say that probation and prison are a different type, but not say that probation and a fine are a different type?

[00:01:06] Speaker 00:
Bradley was a fine.

[00:01:08] Speaker 00:
Correct.

[00:01:08] Speaker 00:
I think all three of those are different types of imprisonment.

[00:01:12] Speaker 00:
And I think the easiest, aside from Supreme Court precedent,

[00:01:16] Speaker 00:
The easiest way to see that probation and imprisonment are different types of punishment is to look at what the district court did in this case, because rather than provide credit for the entire time spent on probation, the court used a formula of 18 to 1.

[00:01:31] Speaker 00:
Our fundamental point is this, if you need a mathematical formula to convert one thing into another thing, then those two things are by definition not the same.

[00:01:42] Speaker 05:
According to you, no formula would have been good enough.

[00:01:45] Speaker 05:
It couldn't be two to one or three to one.

[00:01:47] Speaker 05:
No formula was good enough.

[00:01:49] Speaker 00:
Correct, Your Honor.

[00:01:50] Speaker 00:
Our view is that under double jeopardy principles, under the reading of Bradley that the Supreme Court adopted in Jones, if the sentences are of a different type than the Bradley rule controls, that means that the completion of one of the two alternative sentences originally imposed forecloses the enforcement.

[00:02:10] Speaker 05:
Do you feel like you preserved an argument in the alternative

[00:02:13] Speaker 05:
Let's say we do think that some formula was appropriate, but let's say we think 18 to one was too high.

[00:02:21] Speaker 05:
You haven't put all your eggs in that other basket.

[00:02:24] Speaker 00:
That's correct.

[00:02:25] Speaker 00:
We do have the backup argument that we feel like we preserved both by making the overarching argument and by specifically objecting to the formula at the sentencing hearing itself.

[00:02:35] Speaker 05:
What formula did you propose a formula at the district court?

[00:02:40] Speaker 00:
We did not specifically, no, we did not propose our own formula because again our view was no formula.

[00:02:46] Speaker 05:
Our backup... So soon we think that there should have been a formula and that 18 to 1 was too high.

[00:02:51] Speaker 05:
How would we go about figuring out what the formula should be?

[00:02:56] Speaker 00:
So I think the fact that it's so hard to go about that would indicate our first argument but walking into the second argument I think you would have

[00:03:05] Speaker 00:
This is where it gets arbitrary.

[00:03:06] Speaker 00:
And this is why I think this Iowa Supreme Court in Jepson had the best of the analysis saying that it's arbitrary.

[00:03:14] Speaker 05:
So how was his liberty restrained when he was on probation?

[00:03:17] Speaker 05:
I understand how it was supposed to be restrained.

[00:03:20] Speaker 05:
What did he actually not do that he would have done absent probation?

[00:03:24] Speaker 00:
Certainly.

[00:03:24] Speaker 00:
So I think there are lots of restraints on probationary period that people don't necessarily think about.

[00:03:29] Speaker 00:
So for example, it is, I think, quite a large infringement on anyone's liberty and dignity to be obliged to pee in a cup upon the request of the probation officer.

[00:03:38] Speaker 00:
He was subject to drug testing.

[00:03:40] Speaker 00:
So that's one.

[00:03:41] Speaker 05:
You're not saying he would have used drugs absent probation.

[00:03:44] Speaker 00:
No, but I'm saying as someone's liberty.

[00:03:45] Speaker 05:
So aside from the monitoring, what did he want to do on probation that he didn't get to do?

[00:03:50] Speaker 00:
So I think that what he had to do was to report to his probation officer anytime he wanted to go out of the district.

[00:03:58] Speaker 05:
That is not a very great restriction.

[00:04:01] Speaker 05:
Maybe it is a restriction on liberty, maybe an 18 to 1 equivalent restriction on liberty, but to say he could basically do everything he wanted as if he was not on probation.

[00:04:10] Speaker 05:
He just had to be monitored.

[00:04:12] Speaker 00:
So I think he also could not exercise his Second Amendment rights, which is a substantial one.

[00:04:16] Speaker 00:
He had a gun restriction that will not apply to him going forward, because he is not even.

[00:04:21] Speaker 00:
What's that?

[00:04:22] Speaker 00:
He owned a gun before all this?

[00:04:24] Speaker 00:
Yes.

[00:04:25] Speaker 00:
I mean, in North Carolina, everybody, virtually everybody owns guns.

[00:04:28] Speaker 00:
Yes.

[00:04:28] Speaker 05:
On probation, he had to give up the gun.

[00:04:30] Speaker 05:
He would give it away or what?

[00:04:31] Speaker 00:
Yes, I don't remember the details.

[00:04:33] Speaker 00:
I remember there was an objection in the district court to the firearm restriction that was overruled at the initial sentencing by Judge Lamberth.

[00:04:40] Speaker 00:
I don't remember the exact details of whether it was transferred custody or what exactly.

[00:04:45] Speaker 00:
I do know that he was not allowed to exercise his Second Amendment rights.

[00:04:50] Speaker 00:
His First Amendment rights were also restricted, which was, you know.

[00:04:54] Speaker 05:
Let me ask a more legal question as opposed to the facts specific to this case.

[00:04:59] Speaker 05:
Can you think of a precedent where the court found a double jeopardy violation?

[00:05:04] Speaker 05:
The new sentence did not exceed the statutory max when combined with the old sentence.

[00:05:12] Speaker 05:
And the original sentence did not come with an expectation of finale.

[00:05:20] Speaker 05:
There's three boxes to check here.

[00:05:22] Speaker 05:
Double jeopardy violation.

[00:05:24] Speaker 05:
The two sentences combined do not take the defendant beyond the statutory max.

[00:05:29] Speaker 05:
And the original sentence did not have an expectation of now.

[00:05:33] Speaker 05:
Can you think of any case that checks those three boxes?

[00:05:35] Speaker 00:
I don't think I can.

[00:05:37] Speaker 00:
I think the thing I would say about the reason this case does not, at least in our view, fit in the second box is it's premised on the assumption that he does not get full credit for the probationary time because the 18 months that he spent on probation, of course, if it's credited, then it's well beyond.

[00:05:51] Speaker 00:
the statutory maximum for imprisonment.

[00:05:53] Speaker 00:
I think the other reason that second box isn't checked in this particular case is the dual sentence that he served, the two months plus 18 months on probation, is a sentence that is not authorized by the legislature.

[00:06:07] Speaker 00:
There's no doubt he could not have been required to serve that.

[00:06:10] Speaker 00:
So it's something that is unauthorized by the legislature.

[00:06:13] Speaker 00:
And we think for that reason,

[00:06:16] Speaker 00:
It is different as well.

[00:06:17] Speaker 00:
I would also contend that on the third point, there is an expectation of finality in the prison sentence here under Fogel because the defect that he challenged on appeal was unrelated to the length of imprisonment just as the defect in Fogel was unrelated to the length of imprisonment.

[00:06:31] Speaker 05:
I get that, but it does seem awfully strange to say that he had an expectation of finality in a sentence that he challenged as illegal.

[00:06:38] Speaker 00:
Well, again, and I think the re I acknowledge intuitively that does seem a little strange, but I think it is consistent with this court's decision in Fogel because the challenge was unrelated to the length.

[00:06:49] Speaker 03:
I think it's Fogel different because in Fogel, the court changed the sentence to respond to here.

[00:06:55] Speaker 03:
Your client appealed the sentence.

[00:06:58] Speaker 03:
How can you have an expectation of finality in something he appealed?

[00:07:01] Speaker 03:
He wanted it changed.

[00:07:02] Speaker 00:
So I acknowledge the factual difference there.

[00:07:04] Speaker 00:
But I think it's a bit perverse, as we said in the reply brief, that we would punish someone for raising the illegality, as opposed to in Fogel, where the district court happened to realize it.

[00:07:12] Speaker 03:
It's about his expectation.

[00:07:14] Speaker 03:
So that's why Fogel is really not on point.

[00:07:16] Speaker 00:
It is.

[00:07:16] Speaker 00:
But that's true.

[00:07:17] Speaker 00:
I think Fogel is on point, though, because the question under Fogel is, could the defect have been cured in the sentence brought into compliance with the statute without raising the prison sentence?

[00:07:29] Speaker 00:
And that was just as possible here.

[00:07:31] Speaker 00:
as it was in Fogel.

[00:07:33] Speaker 00:
So I think his expectation is that if he was correct on the appeal.

[00:07:36] Speaker 03:
I just think when you're focusing on the defendant's expectation and the defendant has put the sentence into question, it's difficult to say that he had an expectation of finality.

[00:07:48] Speaker 03:
But in terms of your argument, you're relying on Bradley.

[00:07:51] Speaker 02:
Yes.

[00:07:52] Speaker 03:
But the Supreme Court said in Jones that

[00:07:56] Speaker 03:
we do not think the law compels application of Bradley beyond its facts.

[00:08:00] Speaker 03:
It basically cabins Bradley to its facts.

[00:08:03] Speaker 03:
And the facts here are very different because in Bradley, you could not credit a fine against the term of imprisonment.

[00:08:13] Speaker 03:
But here we're talking about probation and there are other courts that have credited probation and supervised release, things of that nature, against imprisonment.

[00:08:22] Speaker 03:
And if you can credit

[00:08:25] Speaker 03:
the alternative sentence, then ultimately the final sentence, if it credits what had gone on before, there's no violation of double jeopardy.

[00:08:35] Speaker 03:
That seems to be what Jones says.

[00:08:38] Speaker 00:
Yeah, so I think there are two points where I would dispute there.

[00:08:40] Speaker 00:
The first is that in Jones, I think what it says is,

[00:08:44] Speaker 00:
The line of reasoning in Jones is that Bradley continues to apply where the sentences are of a different type.

[00:08:51] Speaker 00:
That means we're back to the question of our probation and imprisonment sentences of a different type.

[00:08:55] Speaker 03:
But it's confined to its facts, and that was a fine.

[00:08:57] Speaker 03:
And this is probation.

[00:08:58] Speaker 00:
Well, again, I think the reasoning line, though, was the reason that Bradley does not apply here is because the sentences there were of a different type.

[00:09:06] Speaker 00:
I think the second reason that I would push back on the way you articulated it is that it is absolutely possible to use a mathematical formula to convert a fine into imprisonment.

[00:09:18] Speaker 00:
You could say one day in prison equals 100 or 500 or 1,000 or whatever.

[00:09:21] Speaker 03:
It's possible, but the Supreme Court has said you can't.

[00:09:24] Speaker 03:
Right, and I think- The Supreme Court has not said that you can't

[00:09:26] Speaker 00:
But I think the logic is what follows through, which is that if you need a 40... We're not writing on a clean slate.

[00:09:33] Speaker 03:
Supreme Court has held that already.

[00:09:35] Speaker 03:
Supreme Court says you can't credit fines against imprisonment.

[00:09:38] Speaker 03:
Supreme Court has not held that you can't credit probation against imprisonment.

[00:09:41] Speaker 03:
And we've got courts in different jurisdictions that have credited probation against imprisonment.

[00:09:47] Speaker 00:
Well, they have, but I would...

[00:09:49] Speaker 00:
highlight that it's in a very different context.

[00:09:51] Speaker 00:
This is, I acknowledge, a question of first impression in terms of whether you can evade the double jeopardy rule in Bradley by crediting under a ratio like this.

[00:10:00] Speaker 00:
The decisions that the government relies on are almost entirely under the mandatory guidelines where there's a government appeal.

[00:10:07] Speaker 00:
If you look, Miller, Carpenter, Martin, those are cases that are all specific to that context.

[00:10:12] Speaker 00:
And in that context, the double jeopardy question is fully asked and answered by the Supreme Court's decision in DeFranchesco.

[00:10:18] Speaker 03:
And I understand those are not double jeopardy cases, but they address crediting probation against imprisonment.

[00:10:23] Speaker 03:
And they've done that.

[00:10:26] Speaker 03:
And I think you need to meet a plain error standard of review, because you never objected to crediting

[00:10:32] Speaker 03:
probation against imprisonment in the court below.

[00:10:35] Speaker 03:
And given that other courts have done this, you can't meet the plain error standard of review.

[00:10:40] Speaker 00:
So I think there's two points there.

[00:10:41] Speaker 00:
The first is that the question those courts were asking and answering about crediting was not a double jeopardy question, as you acknowledge.

[00:10:48] Speaker 00:
It was solely, may a court depart?

[00:10:51] Speaker 00:
Does it have permission to depart under the mandatory guidelines to account for this?

[00:10:55] Speaker 03:
Right.

[00:10:55] Speaker 03:
And nobody's citing those cases for anything having to do with the guidelines or double jeopardy.

[00:11:01] Speaker 03:
Those cases are cited for the proposition.

[00:11:03] Speaker 03:
that you can credit probation against imprisonment.

[00:11:08] Speaker 03:
And that's what the court did in this case.

[00:11:09] Speaker 03:
And you did not object that that is not something that can be done.

[00:11:12] Speaker 00:
Well, so again, I disagree with that.

[00:11:14] Speaker 00:
For the reasons we set out in the reply brief, we think we absolutely preserved the objection that crediting was impermissible because our thought.

[00:11:21] Speaker 03:
What's your best argument that you preserve that?

[00:11:24] Speaker 03:
Because I saw that you did a block quote that mentions crediting, but you never put before the district court the argument that you cannot do this.

[00:11:32] Speaker 00:
So our two arguments, I guess.

[00:11:35] Speaker 00:
The first is that our primary argument below is that these are sentences of a different type that cannot be credited against each other.

[00:11:43] Speaker 00:
That was the entire through line.

[00:11:44] Speaker 03:
You didn't say that cannot be credited.

[00:11:47] Speaker 00:
So I believe we quoted that exact line in Bradley.

[00:11:52] Speaker 03:
Right, you did a block quote from the Bradley, but you never argued to the district court that your position before it was that it is impermissible to credit probation against imprisonment.

[00:12:03] Speaker 03:
So the district court couldn't rule on that.

[00:12:05] Speaker 03:
You didn't put it before the court.

[00:12:06] Speaker 00:
So again, I think I just disagree with that reading of the record.

[00:12:09] Speaker 00:
But the second argument would be, even if we should have been more specific there,

[00:12:13] Speaker 00:
This is a double jeopardy claim that under Yi versus City of Escondido is preserved.

[00:12:18] Speaker 00:
The argument about crediting is simply a different theory in support of that same double jeopardy claim.

[00:12:24] Speaker 00:
There is, I think, no dispute that we preserved a double jeopardy claim below.

[00:12:28] Speaker 00:
All we're talking about is the arguments in support of it.

[00:12:32] Speaker 00:
And so I think under Yi versus Escondido.

[00:12:34] Speaker 03:
Is that how issue preservation works?

[00:12:35] Speaker 03:
Do you have any authority for that?

[00:12:37] Speaker 03:
Just because you made a double jeopardy claim writ large, every argument is preserved?

[00:12:41] Speaker 00:
Yes, Your Honor.

[00:12:42] Speaker 00:
The primary authority for that is Yee versus City of Escondido for the Supreme Court, which this court has cited in Woodruff and other cases for that exact principle.

[00:12:50] Speaker 00:
And so if you look at Yee itself, that was a case where a takings claim was preserved.

[00:12:54] Speaker 00:
It was argued below solely on a theory of physical occupation.

[00:12:58] Speaker 00:
By the time it was appealed up to the circuit court and then to the Supreme Court, the theory that was addressed by the Supreme Court was entirely different from physical occupation.

[00:13:07] Speaker 00:
It was a regulatory takings theory.

[00:13:09] Speaker 00:
So we believe under Yi, the claim is fully preserved.

[00:13:16] Speaker 05:
You talked about how he had to report if he wanted to travel.

[00:13:21] Speaker 05:
I think you mentioned that.

[00:13:24] Speaker 05:
Do you know if he would have traveled?

[00:13:27] Speaker 00:
I know that his previous job had been required him to travel out of state and at least for a time period he didn't undertake that job and he eventually did but then had to get permission with each work trip.

[00:13:40] Speaker 05:
So he did travel across state lines and while he was on probation and he got permission when he did it.

[00:13:47] Speaker 00:
My understanding is that yes he did travel sometimes I can't say that.

[00:13:52] Speaker 00:
I believe so for work.

[00:13:53] Speaker 00:
I will say that the facts of that, whether he was denied at any point or not in the record, and I don't represent that I know of.

[00:14:02] Speaker 05:
My last question, and then I'll see if either of my colleagues have either more questions.

[00:14:08] Speaker 05:
I think you wrote a very good brief.

[00:14:10] Speaker 05:
I think the government wrote a very good brief.

[00:14:11] Speaker 05:
I have a quibble with both of them, and I'll ask the government as well.

[00:14:16] Speaker 05:
It's probably more quibble with the government than with yours, because you do say you think Bradley is just completely controlling.

[00:14:21] Speaker 05:
And if you're right on that, then we're bound by Bradley.

[00:14:26] Speaker 05:
But if there's not a directly on-point precedent,

[00:14:33] Speaker 05:
I would want to know what the original meaning of the Double Jeopardy Clause is.

[00:14:37] Speaker 05:
And I'd want that original meaning applied to the facts of this case.

[00:14:41] Speaker 05:
I try to figure out what the original meaning is and apply it to the facts of this case.

[00:14:45] Speaker 05:
There's not very much argument about original meaning in your brief.

[00:14:51] Speaker 05:
I understand not all judges think original meaning is as important as some other judges do.

[00:14:56] Speaker 05:
Sure.

[00:14:58] Speaker 05:
If I feel like I need that and it's not there, what do you propose I do?

[00:15:03] Speaker 00:
Sure.

[00:15:04] Speaker 00:
So I mean, I think original meaning actually, maybe this is a cop out, but I do think original meaning accords with the Bradley rule because I think original meaning of the double jeopardy clause in the multiple punishment context is just that you cannot suffer multiple punishments.

[00:15:17] Speaker 05:
Bradley is about, you know,

[00:15:19] Speaker 00:
five minutes long and well even mentioned the double jeopardy clause never mind analyze what double jeopardy meant at the time of the founder fair enough and I guess we would go to lang before that but if you look at the rest of the cases that have gone into more detail over time about the

[00:15:35] Speaker 00:
various applications of the double jeopardy clause.

[00:15:38] Speaker 00:
I think the piece of it that is helpful to us is that what the double jeopardy clause prohibits is being punished twice for the same offense.

[00:15:46] Speaker 00:
As applied to this case, the legislature said you can be punished once, either A or B. He undoubtedly was punished with both A and B. Doesn't original meaning contemplate the possibility that if there was a mistake and there's an objection,

[00:16:04] Speaker 04:
The case can be sent back for re-sentencing and the re-sentencing can look different than it originally did.

[00:16:11] Speaker 04:
That's not inconsistent with original meaning as I understand it.

[00:16:15] Speaker 04:
That's always been a possibility.

[00:16:17] Speaker 00:
I think that is true, but I think this case would fit within that frame.

[00:16:22] Speaker 00:
I think the reason that it doesn't, Your Honor, is that what you cannot undo

[00:16:27] Speaker 00:
is the 18 months that he served on probation.

[00:16:29] Speaker 00:
That time, it's different than a fine, which can be refunded.

[00:16:32] Speaker 00:
But even the Supreme Court in Bradley said, we can't do that.

[00:16:36] Speaker 00:
The 18 months that he served can't be magically given back to him.

[00:16:39] Speaker 00:
He can't go relive those 18 months.

[00:16:40] Speaker 04:
You're just fighting the crediting.

[00:16:42] Speaker 04:
That's your crediting, Mark.

[00:16:44] Speaker 04:
I agree with you.

[00:16:44] Speaker 04:
You certainly can have resentencing.

[00:16:46] Speaker 04:
And it can end up looking different.

[00:16:48] Speaker 04:
Oh, absolutely.

[00:16:49] Speaker 04:
And that's not a double jeopardy.

[00:16:51] Speaker 00:
No, and that's clear under the sentencing package cases.

[00:16:53] Speaker 00:
And the reason they're different in this case is, I think, twofold.

[00:16:56] Speaker 00:
First is that those cases, by definition, involve multiple counts of conviction with multiple sentences of imprisonment, which put them within the Jones rule directly.

[00:17:05] Speaker 00:
So that's one difference.

[00:17:07] Speaker 00:
And the second difference has eluded me.

[00:17:12] Speaker 00:
So that is the key difference that I will stick with.

[00:17:16] Speaker 05:
Okay, I'm done.

[00:17:18] Speaker 05:
Thank you.

[00:17:19] Speaker 05:
Thank you very much.

[00:17:21] Speaker 05:
Two minutes in the bottle.

[00:17:40] Speaker 01:
Good morning, and may it please the court.

[00:17:42] Speaker 01:
Ruvendyshevsky for the United States.

[00:17:44] Speaker 01:
Sentence imposed by the district court on remand does not violate double jeopardy.

[00:17:49] Speaker 01:
It credits all time previously served by Little in prison and on probation.

[00:17:53] Speaker 01:
It imposes a sentence, a total aggregate punishment within the maximum authorized by statute.

[00:18:01] Speaker 01:
And Little could have no legitimate expectation in the finality of the original unlawful split sentence that he successfully challenged.

[00:18:09] Speaker 01:
in his first appeal.

[00:18:12] Speaker 01:
In the second appeal, his claim relies entirely on Lang and Bradley.

[00:18:16] Speaker 01:
As pointed out by the court, the Supreme Court's more recent double jeopardy decisions

[00:18:23] Speaker 01:
limit the presidential value of Lang and Bradley to their specific factual context.

[00:18:27] Speaker 01:
And what we have here is different.

[00:18:30] Speaker 01:
Most importantly is this crediting issue.

[00:18:33] Speaker 01:
As opposed to the fine and prison in Lang and Bradley, what we're dealing with here is probation and prison.

[00:18:41] Speaker 01:
And it should be uncontroversial that probation, time served on probation, can be credited against a future term of imprisonment.

[00:18:55] Speaker 01:
Little has not identified a single case that holds otherwise.

[00:18:59] Speaker 01:
And in fact, the cases cited by the parties in both briefs overwhelmingly approve of crediting of probation against prison.

[00:19:09] Speaker 05:
Let me ask you a follow up to my my last question to Mr Little's attorney.

[00:19:17] Speaker 05:
Imagine that there were no precedents.

[00:19:20] Speaker 05:
Related in any way to this case in the past 200 years.

[00:19:25] Speaker 05:
And I think you would still have the argument that Judge Edwards mentioned, that as an original matter, it was fine to re-sentence after an appeal, after an appeal vacates the original sentence.

[00:19:40] Speaker 05:
But of course, this case has some complications that a typical re-sentencing doesn't, including the crediting factor.

[00:19:48] Speaker 05:
Imagine there's no precedence from the past 200 years.

[00:19:50] Speaker 05:
What would your argument today be?

[00:19:54] Speaker 01:
I think that the crediting solves that, but also, and not to fight back against the hypothetical.

[00:20:02] Speaker 05:
There were so many kinds of different ways of punishing the founding that are different than now, so I'm not pointing you if you haven't found an instance of this kind of crediting at the founding, but my impression is that you have not.

[00:20:15] Speaker 01:
I would say two things.

[00:20:16] Speaker 01:
First of all, probation wasn't a sentence at the founding.

[00:20:18] Speaker 01:
probation only became a sentence after the 1984 Sentencing Reform Act.

[00:20:22] Speaker 01:
The second thing I would say, and I realize this is pushing back against the hypothetical, is that the Supreme Court has told us what the double jeopardy clause means.

[00:20:32] Speaker 01:
And so I don't know that it's necessary to engage in any sort of exercise to try to determine what it meant at the founding, because the Supreme Court has told us in De Francesco and in Jones that in the multiple punishment context,

[00:20:46] Speaker 01:
The interest that the double jeopardy protects is that a defendant not suffer greater punishment than that authorized by a statute.

[00:20:55] Speaker 01:
And what we know from North Carolina v. Pierce is that crediting protects that interest.

[00:21:00] Speaker 05:
I think even you don't think that's the only obstacle to the government winning here.

[00:21:05] Speaker 05:
I take your brief to say it has to not exceed the statutory maximum of punishment.

[00:21:10] Speaker 05:
And there has to have not been an expectation of finality at the sentence.

[00:21:17] Speaker 01:
Absolutely.

[00:21:18] Speaker 01:
Yes.

[00:21:18] Speaker 01:
Both of those interests exist.

[00:21:23] Speaker 05:
That might be a great test.

[00:21:24] Speaker 05:
And it may be the test we applied.

[00:21:25] Speaker 05:
It may be the test that is compelled or at least suggested by the best reading of the precedents.

[00:21:32] Speaker 05:
But this just strikes me as a case where if I agree with you and Bradley is not directly on point and controlling,

[00:21:38] Speaker 05:
then there's not a case that's directly on point and controlling.

[00:21:41] Speaker 05:
In which case, I wish there were more argument about the, I wish there were more briefing about the original meaning of the Constitution.

[00:21:50] Speaker 01:
I understand that at the same time, again, the Supreme Court has told us that these two interests are the interests at play in the multiple punishment context.

[00:22:01] Speaker 01:
And while this court is writing

[00:22:04] Speaker 01:
on a blank slate with regard to crediting probation against prison.

[00:22:08] Speaker 01:
As Judge Pan pointed out before, there are many other courts that have addressed this issue.

[00:22:16] Speaker 01:
And I would disagree with my opponent that a number of them do address it in the double jeopardy context.

[00:22:22] Speaker 01:
Not that that matters, because the point in the end of the day is that if probation can be credited against

[00:22:29] Speaker 01:
a future term of imprisonment, that is more than enough to distinguish it from Bradley and put us in a place where Mr. Little's double jeopardy rights have been protected.

[00:22:40] Speaker 03:
So to follow along with this idea that we should look to first principles of double jeopardy, double jeopardy clause, you can't be put in jeopardy for life for limb, I guess, for the same offense.

[00:22:55] Speaker 03:
And it seems to me that when there's an appeal and a remand for resentencing, it is one punishment for one offense.

[00:23:05] Speaker 03:
And it's just being corrected.

[00:23:06] Speaker 03:
And as long as you're not going above the statutory maximum, you're not violating double jeopardy.

[00:23:16] Speaker 03:
And in this case, the argument is that these are two punishments because you've already served one part of the original sentence that was imposed.

[00:23:25] Speaker 03:
But the response to that is it's not two sentences.

[00:23:28] Speaker 03:
It's one sentence because you can credit what you served before to what we're doing now.

[00:23:33] Speaker 03:
So it's all one sentence.

[00:23:34] Speaker 03:
And so that is consistent with the original meaning of double jeopardy.

[00:23:38] Speaker 03:
It is one sentence from one offense.

[00:23:41] Speaker 01:
I think that's right.

[00:23:42] Speaker 01:
And I also think that goes to another point, which is that Judge Lamberth crafted a single sentence in the split sentence the first time around.

[00:23:52] Speaker 01:
And he provided his reasoning in his written opinion for that.

[00:23:58] Speaker 01:
And it was intended to exact a cumulative punitive effect.

[00:24:04] Speaker 01:
And when this court's decision in the first Little appeal unraveled that sentence, what Judge Lamberth did on remand was engage with that cumulative punitive effect and try to craft a sentence that both protected Little's double jeopardy rights, but also achieved what his responsibility was under the 3553A factors.

[00:24:33] Speaker 01:
And so crediting protects the double jeopardy rights.

[00:24:39] Speaker 03:
And I'd just like to turn quickly to the expectation of- Can you respond to your friend on the other side's argument that his crediting argument is preserved because anything that supports a double jeopardy claim is preserved?

[00:24:58] Speaker 01:
Yeah, so I agree with the thrust of the question that you asked him.

[00:25:03] Speaker 01:
And I would distinguish ye.

[00:25:04] Speaker 01:
I don't think that raising a double jeopardy claim writ large preserves every possible claim that falls within double jeopardy.

[00:25:15] Speaker 01:
And one example where the court has dealt with this issue recently in a different context is United States v. Stevens, which dealt with aggravated assault

[00:25:25] Speaker 01:
a guideline where the defendant below challenged one element of the guidelines definition and then on appeal added in a second challenge to another element of the of the guideline and what this court found in Stevens which was an opinion.

[00:25:42] Speaker 01:
issued earlier this year is that making one of those claims does not preserve the other, even though arguably, because he made the overarching claim attacking the application of that guideline, that everything else would fall within.

[00:26:00] Speaker 01:
And I think that's the same argument that Little is making here with regard to plain error.

[00:26:04] Speaker 03:
Are you aware of Yi being applied in any criminal case in this circuit to preserve claims like this?

[00:26:11] Speaker 01:
I'm not aware.

[00:26:12] Speaker 01:
I don't know.

[00:26:16] Speaker 01:
Thank you.

[00:26:16] Speaker 01:
With regard to the legitimate expectation of finality, I think this court's case law is clear, including in Fogel, that a defendant that challenges, successfully challenges an unlawful sentence does not have a legitimate expectation of finality.

[00:26:37] Speaker 01:
The unlawfulness of the split sentence is not similar to the, quote unquote, technical defect involved in the Fogel case.

[00:26:46] Speaker 01:
As the court pointed out in Fogel, the court acted sua sponte, which casts it in a different situation than here.

[00:26:56] Speaker 04:
Tell me, play it out a little bit for me.

[00:27:00] Speaker 04:
I'm not sure I understand how you're addressing ye.

[00:27:04] Speaker 04:
which says once a federal claim is properly presented, a party can make any argument in support of that claim.

[00:27:11] Speaker 04:
Parties are not limited to the precise arguments they made below.

[00:27:16] Speaker 04:
How does that work for you?

[00:27:18] Speaker 01:
So what I would say is making a claim of double jeopardy does not open up the whole universe of any

[00:27:28] Speaker 01:
subclaim within double jeopardy.

[00:27:32] Speaker 01:
And so what Little did not do below is he did not challenge the imposition of a new sentence because probation cannot be credited against prison.

[00:27:43] Speaker 01:
He did not challenge the imposition of a new sentence because a one-to-one crediting ratio, if probation and prison can be credited against each other, if that a one-to-one ratio is required, he didn't make those claims.

[00:27:56] Speaker 01:
And so what I'm saying, and one example again is USV Stevens, which is a criminal case, which distinguished E, you know, making a general attack of one sort doesn't necessarily mean that all subsidiary claims or possible subsidiary claims should be included in that.

[00:28:19] Speaker 04:
You're saying the claim can't be double jeopardy.

[00:28:23] Speaker 04:
It has to be the crediting.

[00:28:26] Speaker 04:
And then any argument in support of that.

[00:28:29] Speaker 04:
To preserve it.

[00:28:30] Speaker 04:
And I think that I'm just trying to see how you're breaking it down in your head.

[00:28:33] Speaker 04:
You can't just say, well, it was double jeopardy violation.

[00:28:38] Speaker 04:
Or to be silly, I was treated badly.

[00:28:40] Speaker 04:
And now when I get on appeal, I can say anything I can think of in support of that, I was treated badly.

[00:28:46] Speaker 04:
I'm saying the claim has to be the creditor.

[00:28:48] Speaker 01:
I think that's right.

[00:28:50] Speaker 01:
I think that's right.

[00:28:50] Speaker 01:
And regardless of whether the court agrees or not, the government is comfortable with its crediting position on the merits.

[00:28:57] Speaker 01:
So I don't think that whether or not this is plain error should affect the outcome of the case here.

[00:29:05] Speaker 03:
So in Stevens, Stevens actually did rely on Ye to make new arguments in support of a preserved claim.

[00:29:14] Speaker 03:
And I guess,

[00:29:15] Speaker 03:
We, this court, rejected that, saying that these are not, that you didn't apply because they're not two separate arguments of a single claim.

[00:29:26] Speaker 03:
These were separate claims.

[00:29:27] Speaker 03:
That's correct.

[00:29:28] Speaker 03:
And I guess in this case, the analysis would be saying that the alternative sentencing cases applies to preclude this is different from saying, it's a different claim from saying it is not possible to credit

[00:29:45] Speaker 03:
probation against imprisonment.

[00:29:47] Speaker 03:
That's a different claim.

[00:29:49] Speaker 03:
That's right.

[00:29:50] Speaker 03:
It's a different type of double jeopardy claim.

[00:29:52] Speaker 01:
Right.

[00:29:53] Speaker 01:
And when given the opportunity to object at the end, after sentencing, Little said, I don't really like this ratio.

[00:30:02] Speaker 01:
I think a one to five ratio would be better.

[00:30:05] Speaker 01:
But nowhere in the briefing before or afterwards did he make a claim that double jeopardy prohibits that sort of crediting or that double jeopardy requires a one to one offset.

[00:30:19] Speaker 01:
The court has no further questions.

[00:30:20] Speaker 01:
We'd ask that the judgment below be affirmed.

[00:30:26] Speaker 01:
Thank you.

[00:30:34] Speaker 00:
The second reason that eluded me before, that's OK.

[00:30:38] Speaker 00:
The second difference in the sentencing package cases is the expectation of finality.

[00:30:43] Speaker 00:
And that's where we think, again, it's critical that the defect here was unrelated to the length of imprisonment, which distinguishes the situation from the sentencing package cases.

[00:30:54] Speaker 00:
I think the other key component of the expectation of finality here is the lack of a cross appeal.

[00:31:00] Speaker 00:
If you look at what the Supreme Court has said in Greenlaw,

[00:31:03] Speaker 00:
It says that when the government is seeking to increase the length of a sentence, it needs to file the cross-appeal because that gives a defendant fair warning that pursuing the appeal could subject him to additional imprisonment.

[00:31:15] Speaker 03:
I'm sorry, what would the cross-appeal be in a criminal case like this?

[00:31:17] Speaker 00:
So the cross-appeal would be that if the government could have cross-appealed and said two months is not a sufficient sentence under the 3553A factors,

[00:31:25] Speaker 00:
which is apparently what Judge Lamberth concluded on remand by increasing it from two months to five months.

[00:31:31] Speaker 00:
So the government could have filed a cross appeal arguing that Judge Lamberth had made a mistake under the 3553A factors in imposing a sentence that lenient.

[00:31:39] Speaker 03:
Doing that would have given- I'm sorry, so are you suggesting that for us to remand a case for resentencing, we can only do that if the government cross appeals?

[00:31:50] Speaker 00:
If the challenge is unrelated to the length of imprisonment, certainly if there is, in the normal case that you deal with, the challenges to the calculation of the guidelines or the procedural reason why it's a sentence, all of those, we acknowledge, clearly covered by the expectation of finality precedent, that by putting the length of the sentence in question, there is no expectation of finality.

[00:32:10] Speaker 03:
There are plenty of cases that don't go to the length of the sentence, like maybe you didn't cover the immigration

[00:32:20] Speaker 03:
implications of a plea, something of that nature, whatever.

[00:32:23] Speaker 03:
But anytime we remand for resentencing, we can only do so if there's been a cross-approval by the government.

[00:32:30] Speaker 00:
It's not that broad.

[00:32:32] Speaker 00:
It's when the appeal is unrelated to the length of the sentence.

[00:32:35] Speaker 00:
So for example,

[00:32:36] Speaker 00:
If a defendant appealed in a criminal case solely based on a restitution order or a forfeiture order and prevailed on that, and the court remanded to deal with those issues, that would not authorize the district court.

[00:32:47] Speaker 03:
Do you have any authority for this theory that the only time we can remand for resentencing if it's not related to the length of the sentence?

[00:32:54] Speaker 03:
There has to be a cross appeal by the government.

[00:32:56] Speaker 00:
Your Honor, the case we rely on that is Fogel, which says that there is an expectation of finality where the defect in the procedure like Fogel does not follow the pattern that you suggested.

[00:33:04] Speaker 00:
Oh, absolutely.

[00:33:06] Speaker 00:
We think the principle applied in Fogel would extend here.

[00:33:10] Speaker 03:
And especially when red and light doesn't agree center for the government to cross appeal things that they don't even think might be meritorious because they want to be able to get a resentencing.

[00:33:19] Speaker 00:
I mean, it does.

[00:33:21] Speaker 00:
I think that is a natural consequence of green law.

[00:33:23] Speaker 00:
But I think it's critical and understanding expectation of finality because the key point I would make is

[00:33:27] Speaker 00:
There's no doubt in terms of expectation of finality that Mr. Little would not have appealed this sentence had he believed that there was the possibility of an increased prison sentence on remand.

[00:33:37] Speaker 00:
So subjectively, there's no doubt there was an expectation of finality here.

[00:33:42] Speaker 00:
It's just a question of whether it's one that the court is willing to recognize under its precedent.

[00:33:47] Speaker 05:
Again, he wouldn't have appealed what?

[00:33:51] Speaker 00:
Your honor, I think Mr. Little is very clear that had he known that the consequence of succeeding on appeal was that he would have to go back to prison, he would have just said, I'll let the error stand.

[00:34:00] Speaker 05:
What if he knew that if he succeeded on his appeal, he might end up worse and he might end up better?

[00:34:13] Speaker 05:
In that case, he might have rolled the dice.

[00:34:16] Speaker 00:
He might have.

[00:34:17] Speaker 00:
And again, that's what the cross appeal would have done, would have given him fair warning that there was a chance this could get worse as it was his expectation.

[00:34:24] Speaker 03:
Shouldn't have his attorneys have informed him of the sentencing packaging cases that say that if you succeed on your criminal appeal, you could.

[00:34:33] Speaker 00:
That is certainly a claim he will make in a 2255.

[00:34:35] Speaker 00:
I expect if there are no further questions, your honor.

[00:34:41] Speaker 00:
Thank you.

[00:34:42] Speaker 03:
Thank you.