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Case number 23-3126.

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United States of America versus Eduardo Gonzalez Balencia, also known as Lalo, also known as Flaco, also known as Silver, also known as Silverio, also known as Eduardo, also known as Lane, at balance.

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Mr. Burstein for the balance, Ms.

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Allen for the appellate.

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Good morning.

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I just want to note that Judge Henderson is not able to be here today, and she intends just to listen to the recording of the oral argument, and she'll decide the case based on the record and the oral argument that she'll listen to.

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We're ready to proceed with the first case.

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Mr. Burstein?

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Thank you, Your Honor.

[00:00:44] Speaker 01:
Morning, Your Honors.

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Devin Burstein on behalf of Mr. Gerardo Gonzalez Valencia.

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Mr. Gonzalez Valencia pleaded guilty to the sole counts of the indictment, conspiracy to import cocaine.

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He was found to have accepted responsibility for his conduct.

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And in exchange, the benefit he received for his bargain is a life sentence.

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Well, there was no bargain, was there?

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He pledged to the indictment with no plea agreement.

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He waived his rights to a jury trial, to confrontation, the other panoply of rights that come along with the trial right.

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But he did that with no bargain.

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There was no agreement with the government.

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They didn't agree to anything.

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He just led to the indictment.

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And as a result, he was sentenced to essentially die in prison.

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We believe there's no justice in that sentence and that it should be vacated for several reasons.

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I think the most straightforward reason is that we know on this record that Uruguay was absolutely clear at every level of its judiciary and executive that whether binding or not, its expectation was that he not receive a life sentence.

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We know that that was heavily discussed in the sentencing papers.

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All of the

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papers that the government put in the supplemental appendix show those documents they were all before the district court and what is silent in the record.

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Is whether the district court considered any of that.

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in fashioning its sentence.

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That's a very important consideration because it stands in stark contrast to the majority of the types of issues district courts day in and day out based their sentences on.

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But your client's counsel didn't ask the court to explicitly address that on the record.

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Your client's counsel was given that opportunity when the court said anything else, is there anything we're missing, anything else we should discuss?

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And your client's counsel never asked that what you're saying should have happened.

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Correct, but.

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Okay.

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Okay.

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So correct, but the ask was ahead of time.

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That's the point of litigating these things.

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And then I understand the government's argument.

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So when I say that, I hope I'm clear.

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The ask was in the papers and in all the documents that were filed.

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And that's the point.

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And then and then the district court imposed sentence said life.

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It wasn't like before I imposed sentence, anything else imposed life and then said, are there any further objections and really

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It's such a form over substance thing.

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We know she imposed life.

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So what he was supposed to futilely say, Oh yeah, but you forgot this.

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I mean, it's just presumably there was an allocution before she pronounced sentence.

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And was there a request at that point that she specifically address this issue?

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Well,

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No, but it's the same thing we're doing right now.

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It would be like, well, you didn't mention in oral argument counsel this point in your brief.

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It's like, right, Judge Pan, because that's why I wrote you a 35-page brief, because I don't have time to discuss everything.

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And if I started to repeat my whole brief, I think both yourself and Judge Randolph would say, counsel, why are you reading your brief to us?

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We've read it.

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So right, the oral argument portion of the sentencing was to address the court's questions.

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controls the oral argument portion of the sentencing, just like this court controls my questions.

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The whole thing that I find incredibly troubling about this whole line is this is not supposed to be a gotcha game where we're bureaucrats saying, oh, he didn't dot this I, he didn't dot this T. Our job collectively is to do justice.

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And here we have a real issue.

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Your guy was clear as can be.

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Don't impose a life sentence.

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Maybe that would impact the judge.

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Maybe it wouldn't.

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But shouldn't we know the answer to that before we sentence somebody to die in prison?

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And I hate the term life in prison because it's such a euphemism.

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We don't have parole.

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This is not a California kind of or state court thing.

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Life is life.

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You leave in a body bag.

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And I just don't want to make, let's not put a smiley face on that.

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This is as serious as it gets, but for the death penalty.

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And we have something that is undisputed that we don't know the answer to.

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And there is a- Our case law says that a district court doesn't have to address every argument that's in the- Of course.

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Of course.

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And your client's counsel did not ask her to address this.

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So like you said, this is not a gotcha game.

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It's also not a gotcha game on the district court.

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Our counsel respectfully have to disagree.

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Do I agree that the lower counsel below should have done a better job?

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Yes.

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Could counsel for the government have also raised it because it was in their papers?

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Yes.

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But to say this wasn't raised, I don't think is fair, Your Honor.

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It was raised.

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All of these documents were before the judge.

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But your argument in your brief is that she should have discussed it on the record.

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And nobody asked her to discuss it on the record during the sentencing hearing.

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OK, and so we're left.

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I mean, all I can say to that is yes, that's true.

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And then the question and then that begs the question.

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So what does this court do?

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Can this court look and say?

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that as a matter of international comedy, as a matter of the strong preferences, as a matter of protecting United States citizens in the same position overseas.

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As a matter of plain error, which is the standard of review.

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As a matter of plain error, should the court have looked at this?

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Because what are?

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How can you meet the plain error standard when we have case law that says a court doesn't have to address everything in the papers?

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Because the record at the sentencing.

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I can easily meet the plain error standard, bigly.

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is a plain error case where it was reversed for failure to address on the record, a non frivolous argument.

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This court has a whole bigger body of law that makes the essential point because it's a common sense point.

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Judge, if you have a major issue for mitigation and you don't say anything about it, we sitting as the Court of Appeals aren't sure you considered it.

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If we aren't sure you considered it, we can't affirm your sentence because somebody could be doing life in prison on a mistake.

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We don't do that in America.

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That's what separates us out.

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And I'm not asking the court, send it back for a new trial.

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The sentencing transcript was 63 pages.

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It would take Judge Howell 10 pages.

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We can all go back and do this in 15 minutes, and then we can look at ourselves in the mirror and say, if he gets a life sentence, despite what Uruguay said, then we know at least we've done our job.

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Due process has been had.

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Justice has been served because we know, we know

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she considered the point.

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What is the harm?

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Imagine we're sitting here in an apartment, not the standard that we're applying here, but imagine a parallel universe, your honor, where we do know.

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And she says, you know what?

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I didn't consider it, and I'm going to give him 35 years.

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And instead we, and that universe exists, but instead we said, you know what, we're gonna get overly focused on the standard of review and we're gonna hang our head on that and too bad, so sad, you die in prison.

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What's more just?

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What speaks better of the American justice system, to the man on the street, to the woman on the street, that we got it right because we knew there was an issue that needed to be gotten right, or that we said, you know what, your lawyer messed up and didn't use the right phraseology and his talismanic words weren't enough, and so sorry, you die in jail, sir.

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That's not who we are.

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That's not our values.

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I don't think anybody as an officer of this core would appreciate that kind of ruling over one that just simply said, let's get it right.

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So you make an interesting point.

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And we are a court of law.

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And the plain error standard is intended to promote justice, because it says that even if you don't raise something, we will correct it if you can meet these four prongs of the test and will correct it anyway, even if you didn't.

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preserve it.

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And so the whole structure and system of that standard of review is to promote justice, to still have to meet the four prongs.

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It's not a general, it would be just, it would be fair for us to do something.

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That's not what we're doing here.

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We're a court of law.

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We're applying a standard.

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The standard promotes justice.

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And you have not shown how you meet that standard, the plain error standard.

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I disagree, Your Honor.

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We did show it.

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I quoted you bigly.

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I disagree with the exact premise.

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This is a common law.

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court derived from both courts of law and courts of equity, 21, uh, 28 USC 2106 gives this court express authority to do exactly what I'm asking.

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And we clearly meet the plain error standard, even in its standard form, the plain error standard one error, the district, this court's law is crystal clear.

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The district court must address non frivolous arguments that I mean, you're shaking your head, but that's what this court's case law says.

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Our case law says that the district court isn't required to.

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to address every argument.

[00:11:05] Speaker 01:
No, it says it's not required to tick off every 3553A factor.

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It doesn't say it's not required to address significant non-frivolous arguments.

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That would be a nonsense.

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The fact that we're having this disagreement means it's not plain clear or obvious, is it?

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It has to be plain clear and obvious.

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I would point this court to Bigley and to Borda, and it is obvious.

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This is as obvious as it can be.

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And if it's obvious, then the district court had to do it.

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If the district court had to do it,

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And didn't.

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That's plain error.

[00:11:34] Speaker 04:
That I agree on.

[00:11:35] Speaker 01:
Okay.

[00:11:38] Speaker ?:
No.

[00:11:38] Speaker 04:
Okay.

[00:11:38] Speaker 04:
Thank you.

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We'll give you two minutes for rebuttal.

[00:11:40] Speaker 01:
Thank you, Your Honor.

[00:11:45] Speaker 03:
Ms.

[00:11:46] Speaker 03:
Allen.

[00:11:50] Speaker 03:
Thank you, your honor.

[00:11:50] Speaker 03:
Catherine Allen on behalf of the United States.

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I just want to make sure that I clarify one thing here regarding the merits of the argument that council was making, which is just I want to just walk through exactly what happened with respect to the extradition.

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He is correct that the initial request from Uruguay did request that the United States make assurances that he would not be sentenced to life in prison.

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And the United States responded and did not provide any assurances.

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And that's at Supplemental Appendix 173 to 176.

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The AG's, the Uruguayan Attorney General's letter confirms this.

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At supplemental appendix 95, it states that the attorney general's office, quote, understands that, quote, the failure to provide guarantees with respect to the non-imposition of the sentence of life imprisonment is justified.

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So I just want to be very clear that there were never any assurances by the United States in the extradition process that he would not be sentenced to life imprisonment.

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Is there anything in the sentencing guidelines that deals with this type of situation where the country that is, where the individual is being extradited from makes a request with respect to sentencing?

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Is there anything in the guidelines that deals with that?

[00:13:11] Speaker 03:
Not that I'm aware of, Your Honor.

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And you know, this argument was raised for the, the Barrett's argument was raised for the first time.

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in his supplemental sentencing memorandum after the evidentiary hearing.

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And it was raised separate and apart from his arguments about the guidelines and separate and apart from his argument about the 3553A factors.

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And the guidelines, the guideline calculation resulted in a life sentence, is that correct?

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That's correct, Your Honor.

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So nothing in the guideline sentence would change as a result of Uruguay's request

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Not that I'm aware of your honor.

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And just to be clear, it was only Uruguay's initial request that requested assurances that the United States not send him to life imprisonment.

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But then after the United States responded, did not provide those assurances, the Uruguayan attorney general's office recognized that the United States had not provided those assurances and Uruguay then nonetheless

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still extradited him.

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So we, we think that it's very clear on the merits that, that there was no, you know, there, ultimately there was no condition and there were no assurances that he wouldn't be sentenced to life in prison.

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And the import of judge Randolph's question is if the district court were to take this into account, it would have had to doubly depart or vary from the guidelines in order to account for Uruguay's position.

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That's correct.

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And sorry, I was just trying to make clear that we don't believe that was Uruguay's position as a factual matter, because it extradited him.

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Uruguay's position may be we would prefer that this person not get a life sentence, but it's not binding.

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The United States didn't say, OK, that's a condition of you giving.

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None of that happened.

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Exactly.

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But understanding that Uruguay's preference would be for this defendant to not receive a life sentence, if the district court were to take that into account,

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for it to actually impact the sentence, the court would have had to actually depart from the guideline range.

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That's correct.

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And I just want to also be very clear, Your Honor.

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Gonzalez Valencia never argued below that, even in the Supplemental Sentencing Memorandum, that the district court, in its discretion, should consider Uruguay's preference or request for him not to have a life sentence.

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The argument was that, as a matter of law,

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his extradition was conditioned on him not receiving a life sentence, and therefore the district court couldn't impose a life sentence.

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But he never argued that as a mitigation factor, because Uruguay requested this, the district court should exercise its discretion and depart from the guidelines range.

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That argument wasn't presented at all.

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And so I think that's no basis for saying that the district court erred by failing to explicitly address that on the record at the sentencing

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Did the Uruguay court give any reasons for its request?

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So he challenged his extradition in Uruguay and the criminal court, the lower level of court,

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imposed the condition, and it based it, as detailed in his supplemental sensing memorandum, it based it not on the treaty, but on sort of Uruguayan domestic law and other things outside of the treaty.

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The lowest court imposed that condition.

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But then, again, I think the key points are that when Uruguay requested those assurances, the United States did not provide them.

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Uruguay was aware of that and then extradited him anyway.

[00:16:50] Speaker 00:
I understand that.

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What I'm asking is, what was the reasoning of the Uruguay criminal court for making that request?

[00:17:02] Speaker 03:
I believe, Your Honor, that it was based on domestic law and some, you know, international, perhaps international agreements.

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I know that it was not based on the treaty, the extradition treaty between the United States and Uruguay.

[00:17:17] Speaker 00:
Or the particular circumstances of the defendant?

[00:17:21] Speaker 00:
No, Your Honor.

[00:17:26] Speaker 03:
If the court has no further questions, we urge you to affirm the conviction and sentence here.

[00:17:30] Speaker 04:
Thank you.

[00:17:31] Speaker 03:
Thank you.

[00:17:37] Speaker 01:
My turn?

[00:17:39] Speaker 01:
All right.

[00:17:42] Speaker 01:
Normally I do this off the iPad, and this was my, I just learned that no iPad's allowed up here.

[00:17:48] Speaker 01:
So I am gonna hopefully end with a few quotes that maybe can convince this court that this is in fact plain error.

[00:17:57] Speaker 01:
So the two of them are from Bigley, and the last one is from McKeever, both cases from this court.

[00:18:03] Speaker 01:
By quote, by failing to consider the defendant's non-frivolous mitigation argument,

[00:18:08] Speaker 01:
the district court committed plain error.

[00:18:10] Speaker 01:
Bigly.

[00:18:11] Speaker 01:
Bigly again.

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When a judge fails to address a defendant's non-frivolous mitigation claim based on a 3553A sentencing factor, a reviewing court and the public cannot adequately evaluate the judge's sentencing selection.

[00:18:27] Speaker 04:
Was that argument made at the sentencing hearing then?

[00:18:31] Speaker 01:
No, that's why it's plain error.

[00:18:34] Speaker 00:
Unfortunately, if what the government tells us is accurate, we don't have it.

[00:18:41] Speaker 00:
The district court didn't have any mitigation arguments in front of them.

[00:18:47] Speaker 00:
I'm not sure.

[00:18:48] Speaker 00:
What's a mitigation argument?

[00:18:50] Speaker 01:
The mitigation argument would be that out of respect for the law, which is a 3553A factor, the judge should have considered Uruguay's condition

[00:18:59] Speaker 01:
that an expression as a matter of, and I can answer your honor's question as to why it was there.

[00:19:05] Speaker 01:
It should have considered Uruguay's expression and condition that he not receive a life sentence.

[00:19:10] Speaker 01:
That's a mitigating factor.

[00:19:12] Speaker 01:
That as a matter of international comedy, the extraditing state said, don't do this.

[00:19:18] Speaker 01:
The reason the extraditing

[00:19:20] Speaker 04:
The government just said that that wasn't the argument made below.

[00:19:23] Speaker 04:
The argument made below was that it was a condition of the extradition.

[00:19:27] Speaker 04:
So it's more of a legal question, not a mitigating thing that the court can take into consideration under 3550.

[00:19:33] Speaker 01:
And that's why your honor was asking me how I meet the plain error standard.

[00:19:37] Speaker 01:
Because this precise nature of this argument, this wasn't artfully raised by a counsel below.

[00:19:43] Speaker 01:
It was raised, as my opposing counsel says, as this was a binding condition.

[00:19:50] Speaker 04:
I mean, here's an argument has morphed because before you were saying the argument was in the papers and then she didn't right.

[00:19:57] Speaker 04:
Presley stated and now you're saying.

[00:19:59] Speaker 04:
Now that you're confronted with the fact that this particular argument about mitigation wasn't in the papers, now you're making a different argument, which is that this is something the court should have just thought of on its own.

[00:20:09] Speaker 01:
No, we say it in our brief.

[00:20:11] Speaker 01:
So the first part is that the district court was required under Rule 32 to resolve this dispute.

[00:20:18] Speaker 01:
There is a dispute in the paper.

[00:20:20] Speaker 01:
The defense papers say you are bound by Uruguay's condition because there was a reasonable understanding by Uruguay that the US would comply.

[00:20:30] Speaker 01:
The government says that was not the understanding.

[00:20:33] Speaker 01:
That was a legal dispute that the district court didn't resolve but was required to resolve under Rule 32.

[00:20:39] Speaker 01:
We discussed that at length in our brief, especially in the reply brief.

[00:20:43] Speaker 00:
Why wasn't the district court's sentence a resolution of the dispute?

[00:20:49] Speaker 00:
Because the district the defendant said no life sentence.

[00:20:53] Speaker 00:
That's a condition of my extradition.

[00:20:56] Speaker 00:
And the district court announces life sentence because the district resolved the dispute.

[00:21:02] Speaker 01:
No, because the district court didn't mention their dispute.

[00:21:05] Speaker 01:
This district district court didn't rule on it.

[00:21:07] Speaker 01:
Look at how the rest of the district court.

[00:21:09] Speaker 01:
I mean, this is a district court that when there's an issue before her, she rules very clearly.

[00:21:15] Speaker 01:
She lays out the two sides and then rules this.

[00:21:19] Speaker 01:
An honest view of this record is that it got missed.

[00:21:23] Speaker 01:
We can assign blame wherever, but to say that she ruled on it is a judicial fiction.

[00:21:28] Speaker 01:
She didn't rule on it.

[00:21:29] Speaker 01:
We know she didn't rule on it, because she's very clear on everything else.

[00:21:33] Speaker 01:
And then this big elephant just got silent.

[00:21:35] Speaker 01:
It somehow got missed.

[00:21:37] Speaker 01:
You know what?

[00:21:38] Speaker 01:
As the Supreme Court was just talking about in Rosales Morales, there are some times where mistakes just happen.

[00:21:45] Speaker 01:
This is a complex process.

[00:21:47] Speaker 01:
The problem is a mistake happened in a case where some guy got life.

[00:21:50] Speaker 04:
And the mistake was?

[00:21:51] Speaker 04:
his client not asking for this ruling on the record.

[00:21:54] Speaker 01:
Which ruling, Your Honor?

[00:21:56] Speaker 01:
Sorry to ask you a question.

[00:21:56] Speaker 04:
The ruling that you're saying she should have addressed on the record, the council never asked for it.

[00:22:02] Speaker 04:
So I don't see that as the district court's mistake.

[00:22:04] Speaker 04:
I see that as council's mistake.

[00:22:07] Speaker 01:
Fine.

[00:22:07] Speaker 01:
I mean, council asked for one of the rulings in the papers.

[00:22:13] Speaker 01:
That's where we were.

[00:22:13] Speaker 04:
Not what we're talking about.

[00:22:15] Speaker 01:
You're talking about the mitigating factor argument, right?

[00:22:18] Speaker 01:
That wasn't raised.

[00:22:19] Speaker 04:
I'm talking about either one.

[00:22:20] Speaker 04:
There was no request that the district court address anything that you're saying here at the sentencing hearing, at the sentencing hearing.

[00:22:28] Speaker 04:
And your claim here is that she needed to address it at the sentencing hearing.

[00:22:32] Speaker 04:
That's what we're talking about.

[00:22:33] Speaker 04:
So the mistake was not the district court's mistake.

[00:22:36] Speaker 04:
It was counsel's mistake.

[00:22:37] Speaker 01:
But Your Honor, if I ask for something in my sentencing papers,

[00:22:42] Speaker 01:
And the district court doesn't rule on it at the sentencing hearing.

[00:22:45] Speaker 01:
Whose fault is that?

[00:22:46] Speaker 04:
It's your fault for not asking the court to do so.

[00:22:50] Speaker 01:
So I asked for it in my sentencing papers, the district court doesn't do it, and then I have to ask for it again.

[00:22:55] Speaker 04:
I'm a former district court judge.

[00:22:56] Speaker 04:
Yes.

[00:22:57] Speaker 04:
I was a trial judge for 12 years also on another court.

[00:22:59] Speaker 04:
And at sentencing, there could be an enormous record before the court.

[00:23:04] Speaker 04:
And it's up to the parties to focus the court on what they think are the most important issues.

[00:23:10] Speaker 04:
And there's a reason why we have

[00:23:12] Speaker 04:
precedent that says a district court's not required to tick off everything that's in the papers because it's not practical.

[00:23:19] Speaker 04:
Some sentencing hearings last more than a day.

[00:23:21] Speaker 04:
Right.

[00:23:23] Speaker 04:
The record can be enormous.

[00:23:25] Speaker 04:
So it is up to counsel to focus the court on what are the important issues that need to be addressed on the record at the sentencing.

[00:23:35] Speaker 01:
So if it's counsel's fault, let's just assume it's counsel's fault.

[00:23:39] Speaker 01:
Who bears the brunt of the faults right now?

[00:23:43] Speaker 04:
What does the law say?

[00:23:44] Speaker 01:
The client at this point, well, I think this is a classic plain error situation.

[00:23:49] Speaker 00:
And I think that the court should exercise its discretion to send it back because of the gravity of what- We have now heard 15 minutes of argument about whether the issue should have been raised

[00:24:02] Speaker 00:
Number one, number two, whether it was raised.

[00:24:04] Speaker 00:
Number three, what the district court should have done after

[00:24:11] Speaker 00:
being alerted to this issue.

[00:24:13] Speaker 00:
What we haven't heard is a single word about the merits.

[00:24:18] Speaker 00:
If the district court, if this were placed before the district court, what is the argument that says that the district court should give a lesser sentence because a criminal court in Uruguay requested that?

[00:24:36] Speaker 00:
What is the merits argument?

[00:24:38] Speaker 01:
So there's Supreme Court.

[00:24:40] Speaker 01:
That's a great question, Your Honor.

[00:24:41] Speaker 01:
Thank you.

[00:24:42] Speaker 01:
It's a question that goes back to Rauscher and the Supreme Court, which says that our domestic courts, as a matter of international comedies, should provide deference to the requests and conditions of the extraditing courts as a means of protecting United States citizens.

[00:24:58] Speaker 00:
I don't think that's the law.

[00:25:00] Speaker 00:
That is the law.

[00:25:03] Speaker 00:
Deference, yes.

[00:25:04] Speaker 00:
When we have made a representation

[00:25:07] Speaker 00:
during the extradition, but we've made no guarantee during the extradition and there's no law that I'm aware of that says because a criminal court in Uruguay requested something, the United States has to agree to it.

[00:25:21] Speaker 00:
We didn't agree.

[00:25:22] Speaker 00:
I agree with you.

[00:25:23] Speaker 01:
It doesn't say you have to agree to it, but having to agree to it and considering it are different.

[00:25:27] Speaker 01:
Think of it, we're on the other foot.

[00:25:29] Speaker 01:
And this court ordered extradition.

[00:25:30] Speaker 01:
I know it doesn't, but imagine it ordered extradition.

[00:25:34] Speaker 01:
And it said very clearly, in the United States, it's very important to us that this guy cannot get more than a 30-year sentence.

[00:25:40] Speaker 01:
He's a United States citizen, and it's important.

[00:25:43] Speaker 01:
Can you please consider that?

[00:25:44] Speaker 01:
And then Uruguay, or pick a state, went ahead and imposed life sentence without even mentioning

[00:25:50] Speaker 01:
this court statement that was then affirmed by the Supreme Court, that it's important to us that he doesn't get it.

[00:25:57] Speaker 01:
You know, that matters.

[00:25:58] Speaker 01:
That's the kind of comedy.

[00:26:00] Speaker 01:
How would this court feel?

[00:26:01] Speaker 01:
It's like, well, we said to you, we're going to extradite, but please take a real look at giving him less than 30 years.

[00:26:08] Speaker 00:
All right.

[00:26:08] Speaker 00:
I've got your argument.

[00:26:10] Speaker 00:
Thank you, Your Honor.

[00:26:11] Speaker 00:
Thank you.

[00:26:12] Speaker 01:
The case is submitted.