[00:00:00] Speaker 02: Case number 24-3098, United States of America versus Calvin Smith, also known as ASA, the balance. [00:00:08] Speaker 02: Ms. [00:00:08] Speaker 02: Van Pelt for the balance. [00:00:10] Speaker 02: Ms. [00:00:10] Speaker 02: Kelly for the vote. [00:00:11] Speaker 00: Good morning. [00:00:13] Speaker 00: Good morning, Your Honors, and may it please the court. [00:00:16] Speaker 00: Libby Van Pelt for Calvin Smith. [00:00:18] Speaker 00: I'd like to reserve two minutes for rebuttal. [00:00:22] Speaker 00: The government has conceded error on count one, the drug conspiracy, where the district court sentenced Mr. Smith to life, even though that sentence was admittedly above the statutory maximum. [00:00:35] Speaker 00: This error alone requires remand to the district court for a full de novo resentencing hearing. [00:00:42] Speaker 00: The government has also conceded error with respect to counts 19 and 20, where the district court sentenced Mr. Smith on both, even though the parties agreed that was unconstitutional and in violation of the double jeopardy clause. [00:01:00] Speaker 00: A number of other issues arose at this re-sentencing, and I'm going to start by addressing those that pertain to Count 3, the RICO conspiracy. [00:01:10] Speaker 00: With regard to that count, the district court committed a cascaded series of errors. [00:01:17] Speaker 00: First, he sentenced Mr. Smith under the incorrect assumption that Count 3 carries a mandatory sentence of life. [00:01:26] Speaker 00: And I'll explain how we know that based on the context and also the actual words that the district court both spoke and wrote. [00:01:36] Speaker 00: Second, and relatedly, even if he had not been laboring under that incorrect understanding, he still failed to consider, as is required by statute, Mr. Smith's individualized characteristics, which were quite compelling in this case, and otherwise aired in how he considered the evidence before the court. [00:01:58] Speaker 00: Third, the district court improperly considered conduct associated with counts four and five, the vacated counts, even though the court failed to make a factual finding that that conduct had been proven by a preponderance of the evidence or otherwise. [00:02:15] Speaker 00: And in fact, there's no valid basis upon which the district court could so conclude, given that they were vacated on a fundamental ground that renders them unreliable. [00:02:26] Speaker 00: ineffective assistance of council and also how the district court characterized the evidence in its written ruling following the ineffective assistance of council hearing. [00:02:37] Speaker 02: Course, if I don't ask you about counts, four and five. [00:02:42] Speaker 02: So what was the precise objection that was raised? [00:02:46] Speaker 02: Is it that Mr. Smith did not admit the underlying conduct or was the objection simply to considering the vacated offenses? [00:02:59] Speaker 00: Um to both your honor at a sentencing hearing in order to consider relevant conduct, the district court has to find after the government proves that beyond a preponderance of an of the evidence, the defendant actually committed that relevant conduct. [00:03:16] Speaker 02: In this case, was that objection made below clearly that way? [00:03:20] Speaker 02: I mean, there are a number of places where it seems that the objection may be simply to considering the vacated conduct and not the not whether that conduct was in fact. [00:03:31] Speaker 00: Yes, your honor. [00:03:31] Speaker 00: That objection was made fulsomely. [00:03:33] Speaker 00: If you look in the sealed appendix, which contains the pre-sentence investigation in this report, I was counseled below with regard to the resentencing hearing. [00:03:44] Speaker 00: And there was a fulsome objection there. [00:03:46] Speaker 00: In fact, I went back to the actual trial transcripts from 2002 and pulled the evidence from that trial transcript and submitted to the court. [00:03:56] Speaker 00: Here are the findings you should make. [00:03:58] Speaker 00: and why you should not consider it counts four and five because it's inherently unreliable, right? [00:04:03] Speaker 00: Um so that objection was fulsomely made. [00:04:07] Speaker 00: I also then submitted separately from the pre-sentence investigation reports, a detailed uh sentencing memorandum in which I renewed those objections and then twice at the sentencing hearing, I also raised the issue. [00:04:21] Speaker 00: Um. [00:04:22] Speaker 00: Thank you. [00:04:24] Speaker ?: The [00:04:24] Speaker 00: And so I think there's a, well actually what I'll do is I'll return then to our first issue, which is that the district court sentenced Mr. Smith on count three, the Rico conspiracy, under an incorrect assumption that it carried a mandatory sentence of life. [00:04:42] Speaker 00: And I said earlier, how do we know that? [00:04:44] Speaker 00: We know that based on context and then the actual words that were said and written by the district court. [00:04:50] Speaker 00: So I'll start with the context here, which I think is important. [00:04:53] Speaker 00: Mr. Smith's original sentencing was held back in 2005. [00:04:58] Speaker 00: He was jointly sentenced with five other co-defendants. [00:05:02] Speaker 00: Each of those other co-defendants was subject to a mandatory life sentence. [00:05:07] Speaker 00: So the district court sentenced those five to life and then also at the same hearing sentenced Mr. Smith to life. [00:05:15] Speaker 00: After a very brief allocation by his attorney, the same one that has been found ineffective, that attorney failed to ask for a sentence of less than life, even though one was available. [00:05:28] Speaker 00: At that time, the district court provided no discussion whatsoever of the 3553A factors he just pronounced sentence. [00:05:36] Speaker 00: Now, at the re-sentencing in 2024, the district court referenced that earlier sentence when he said, I must and shall adhere to my prior decision and re-sentence Mr. Smith to life. [00:05:47] Speaker 00: So given that context, it makes sense that the district court was coming into this sentence, this re-sentencing hearing with mandatory life sentence in his mind. [00:05:58] Speaker 00: Okay, so then we get to the hearing and what he said at the hearing and what he wrote afterwards. [00:06:04] Speaker 00: Everything at the sentencing suggests that he was laboring under this incorrect assumption. [00:06:10] Speaker 00: Or the flip side of that is there's nothing in the record that shows that he understood that a sentence of less than life was available. [00:06:16] Speaker 00: So I have four different things that he said and wrote that I'd like to go through. [00:06:20] Speaker 01: If he thought it was a mandatory life sentence on count three, how do you explain his discussion of why he's not departing downward? [00:06:31] Speaker 01: If it were a mandatory sentence, he would have no reason to even consider departing downward. [00:06:39] Speaker 00: Well, I don't think there was a discussion ever about departing downward. [00:06:43] Speaker 00: He did recite some of the 3553A factors. [00:06:46] Speaker 00: Remember that count three was just one count upon which the district court was sentencing on him. [00:06:51] Speaker 00: And even if a count is mandatory life, the statute still requires that the judge... [00:06:59] Speaker 01: He responds to the suggestion to mitigate downward by saying that it suffices that Mr. Smith has not one but multiple convictions today, any one of which would be sufficient to sustain a life sentence. [00:07:14] Speaker 01: That remark and the remarks that follow are inconsistent with the idea that he thought the life sentence was mandatory. [00:07:28] Speaker 00: I think, actually, that is the opposite, your honor. [00:07:31] Speaker 00: So if we start at the very beginning, the outset of the sentencing hearing, the district court announced there, I am going to, Judge Lambert said, I am going to sentence Mr. Smith above the statutory maximum on count one, the drug conspiracy. [00:07:45] Speaker 00: And I quote, because Mr. Smith has multiple other convictions that call for life sentences, the court sees no reason to alter its prior sentence on this count, which is similar to the language that your honor just recited. [00:07:57] Speaker 00: Now, importantly, the only other conviction that carried the possibility of a life sentence was count three. [00:08:06] Speaker 00: So the fact that you have the district court at the very beginning of the hearing, before we have argument, before we have allocution, saying that he's going to get life on count three, so it doesn't matter if I give him life on count one, two, that statement assumes that the district court knew that [00:08:23] Speaker 00: the beginning of the hearing that he was going to give Mr. Smith life on count three, and that he thought he had to. [00:08:30] Speaker 00: Okay? [00:08:31] Speaker 01: The other alternative is that... These remarks seem to me significant in another respect. [00:08:39] Speaker 01: He was refusing to depart downward because Smith had multiple life sentences. [00:08:46] Speaker 01: Now, or after this hearing before us, he no longer has multiple life sentences, he only has one. [00:08:56] Speaker 01: And so the reasoning that Judge Lamberth gave for not departing downward no longer exists. [00:09:03] Speaker 00: Well, I don't think I'm not sure I I may not understand the question but at this re sentencing hearing, it was a de novo re sentencing hearing. [00:09:12] Speaker 00: He was re sentencing mister Smith on all of the counts. [00:09:16] Speaker 00: Right. [00:09:16] Speaker 00: So, and the only count for which a a sentence of life was available was count three. [00:09:24] Speaker 03: Alright. [00:09:24] Speaker 03: So, if we're required, there was no life required life. [00:09:27] Speaker 00: No life required. [00:09:29] Speaker 00: It was simply available. [00:09:30] Speaker 00: I'd like to point. [00:09:31] Speaker 00: I think just I [00:09:32] Speaker 03: I understand Judge Randolph's point right. [00:09:34] Speaker 03: It's that he had previously said there's multiple life sentences and that had influences his sentencing decision. [00:09:41] Speaker 03: But in fact, I think Judge Randolph is pointing out that that was no longer accurate by [00:09:46] Speaker 03: was hearing, right? [00:09:48] Speaker 03: Correct. [00:09:49] Speaker 00: Yes, your honor. [00:09:49] Speaker 00: That was no longer accurate. [00:09:51] Speaker 00: And so that language, given that it was inaccurate, suggests that he did not understand that count three did not, in fact, carry a mandatory sentence of life. [00:10:00] Speaker 00: And Judge Randolph, I'd like to He said, I'm sorry, go ahead. [00:10:04] Speaker 00: Uh Judge Randolph, if you look to at um again, the outset of the hearing, uh the district court stated both the guidelines and the statutory provisions and so the court said the statutory provision for count one is ten years to life. [00:10:19] Speaker 00: Also recited the statutory provisions for the other counts. [00:10:22] Speaker 00: Then it said twice, [00:10:23] Speaker 00: The statutory provision for count three is life. [00:10:27] Speaker 00: And again, the statutory provision for count three is life. [00:10:30] Speaker 00: So for the other counts, he gave the sentencing range available to him by statute, right? [00:10:36] Speaker 00: The mandatory minimum up to the maximum authorized. [00:10:39] Speaker 00: But for count three, he just said life, suggesting that there was no range because the only available sentence was life. [00:10:46] Speaker 00: And as someone who does these cases in the trial court, that is how you say it when it is, in fact, a mandatory life sentence. [00:10:53] Speaker 00: So, that's another thing he said at the sentencing hearing that suggests that he was laboring. [00:10:57] Speaker 01: What did he say in his written explanation for the sentence? [00:11:00] Speaker 00: So, in the written explanation, and that's at Seal Dependent 63, he uses language that's similar to what he said at the outside of the hearing. [00:11:10] Speaker 00: He says, well, I'm going to sentence him on both counts 19 and 20 because, quote, Mr. Smith would have received a life sentence anyway on counts one and three. [00:11:21] Speaker 00: And then separately on that same page, he writes that he was reimposing life on count one, even though it was above the statutory maximum quote because he would have received a life sentence anyway on count three. [00:11:35] Speaker 00: So that suggests again that the district court is thinking about the sentence for count three as mandatory. [00:11:40] Speaker 00: Otherwise, you simply would not say and write, I'm going to give him life on count one because he's getting life count on count three. [00:11:47] Speaker 00: Anyway, if count three is not mandatory life, that reasoning simply does not make sense. [00:11:52] Speaker 00: And also the verb tense, right? [00:11:53] Speaker 00: He didn't say because he received life on count three, he would have would have received it. [00:12:01] Speaker 00: The other place, um, [00:12:04] Speaker 00: The other place in the record where the district court makes statements that suggests again that he thinks count three is a mandatory life count is in the record in the appendix that 994 the same page that you reference judge Randolph where the district court. [00:12:23] Speaker 00: says in order to communicate that our society simply will not tolerate such terrible acts no matter what the personal circumstances of the person committing them. [00:12:34] Speaker 00: This court must and shall adhere to its earlier decision and re sentence mister Smith to life in prison must and shall our command verbs [00:12:46] Speaker 00: that create non-discretionary sentencing outcomes. [00:12:49] Speaker 00: Federal courts treat them exactly the same, and they treat them that way. [00:12:53] Speaker 00: So if you look at statutes, if we take the word must, the Armed Career Criminal Act uses the word must to impose a mandatory minimum sentence. [00:13:01] Speaker 00: It says, in the case of a person who violates this section, that person must be in prison, not less than 15 years. [00:13:08] Speaker 01: Also, if you look at this- It's incredibly consistent with him thinking that because of the nature of the offense [00:13:15] Speaker 01: other factors that I've got to sentence this guy to life, because otherwise I don't communicate to society how grave, how horrendous this criminal act was. [00:13:29] Speaker 00: But that's not what he said. [00:13:31] Speaker 00: I would agree with you if the district court had said, after considering all of the 3553A factors and looking at Mr. Smith individually, this crime outweighs all of those other factors such that the only appropriate sentence is a life sentence. [00:13:48] Speaker 00: But that's not what he said. [00:13:50] Speaker 00: He did not say he was exercising his discretion and that was what he had decided. [00:13:54] Speaker 01: Right after the statement that I just said, [00:13:59] Speaker 01: or the statement that I was just quoting and you were, followed immediately after he said the sentence was warranted because of the nature and circumstances of the offense. [00:14:12] Speaker 00: That's consistent. [00:14:13] Speaker 00: That is consistent with with it being a mandatory life sentence and the district court imposing a mandatory life sentence. [00:14:20] Speaker 00: There's no inconsistency whatsoever there and also I'll note that that statement. [00:14:25] Speaker 01: There is inconsistency when he continues and says it's also warranted because of the history and characteristic of the characteristics of the defendant. [00:14:35] Speaker 01: If it's mandatory, the characteristics of the defendant don't matter. [00:14:40] Speaker 00: Well, you're still going to get a mandatory life sentence on that count, but you still have to follow the statute and recite those. [00:14:49] Speaker 00: And I'll also note, Judge Randolph, that in that sentence, the must and shall sentence, if you will, the district court was not specific to Mr. Smith. [00:14:59] Speaker 00: What the district court said was that for this particular crime, the court must and shall impose a life sentence regardless of the individualized circumstances of this defendant. [00:15:10] Speaker 00: That, again, is a judgment that Congress makes, right? [00:15:14] Speaker 00: Because Congress has various statutes that impose a mandatory life sentence, where we have Congress telling the courts, don't consider nothing for this particular crime. [00:15:26] Speaker 00: No factor can outweigh the seriousness of this conduct. [00:15:29] Speaker 00: And so we're going to impose a mandatory life sentence. [00:15:33] Speaker 03: Do you have any more questions? [00:15:35] Speaker 03: Great. [00:15:36] Speaker 03: Terrific. [00:15:36] Speaker 03: Thank you. [00:15:36] Speaker 03: We will give you your time for rebuttal. [00:15:37] Speaker 03: Thank you, Your Honor. [00:15:40] Speaker 03: You're from the government now, Ms. [00:15:42] Speaker 03: Kelly. [00:15:47] Speaker 04: Thank you, Your Honor. [00:15:47] Speaker 04: It's Katherine Kelly on behalf of the United States. [00:15:50] Speaker 04: Your Honor, in this case, the government has conceded that there was error in regard to sentencing on count one, the life sentence on the narcotics conspiracy, and that it is necessary to vacate count 20 due to merger principles, but that it [00:16:07] Speaker 04: does not require re-sentencing. [00:16:09] Speaker 04: It can simply be done by one. [00:16:11] Speaker 03: One requires re-sentencing. [00:16:13] Speaker 04: Correct, on count one itself. [00:16:15] Speaker 03: But beyond that, though, there's- This judge was looking at sort of the whole picture of all the sort of multiple life sentences that were out there, if you actually vacate one of those life sentences. [00:16:27] Speaker 03: Well, the court- Doesn't that- I'm sorry. [00:16:31] Speaker 03: Sorry, I wasn't quick enough on the draw there. [00:16:34] Speaker 03: Doesn't that suggest that [00:16:38] Speaker 03: it would be best if the district court could go back and just consider the sentencing on, again, in light of both those changes. [00:16:47] Speaker 03: I don't think it seems to be synergistic in the sentencing process. [00:16:51] Speaker 03: And that's sort of how it's supposed to be, particularly the 3553 factors. [00:16:57] Speaker 03: But when you have a judge who's said many, many times, look at all these crimes, look at all these life sentences, and then if it turns out there's no mandatory life sentence at all, [00:17:08] Speaker 03: The one that he thought was life was capped at 40. [00:17:11] Speaker 03: And another one of those life sentences, it just appeared. [00:17:16] Speaker 03: Why wouldn't it be fairer to the district court judge to just leave it to that judge to decide whether that vacatur makes a difference? [00:17:22] Speaker 03: He could say, it doesn't. [00:17:24] Speaker 03: Um it's it just seems to me it's fair to the district court judge to let the district court judge look at the whole picture on remand rather than tying his hands. [00:17:34] Speaker 04: I mean the court certainly could do that and and we're not saying that it couldn't. [00:17:39] Speaker 04: There's nothing wrong with doing it. [00:17:40] Speaker 04: We would just say simply particularly because none of the other errors that um defense counsel has raised were um [00:17:49] Speaker 04: raised to the court. [00:17:50] Speaker 04: Most of the other arguments are on plain error review. [00:17:54] Speaker 03: Conceited plain error on count one and count three was preserved. [00:18:03] Speaker 04: Are there objections to count three? [00:18:07] Speaker 04: We conceded error on count one. [00:18:09] Speaker 04: That argument was preserved at the resentencing. [00:18:14] Speaker 04: But the others, in particular on count three on the RICO conspiracy, we don't believe was preserved. [00:18:19] Speaker 04: There was no indication during the resentencing hearing that defense counsel was concerned or was presenting an argument notifying the court that it believed it was making an incorrect statement that [00:18:35] Speaker 04: the court was indicating that both the mandatory maximum under the statute and the mandatory minimum were life. [00:18:43] Speaker 04: So, given what the court actually said and particularly what Judge Randolph has pointed out in regard to the court not needing to say that it wasn't going to depart from the guideline sentence of life if it truly believed that there was a statutory requirement that it be life, there's just [00:19:04] Speaker 04: Given those statements, there's no reason to believe that the court made any errors on count three account. [00:19:09] Speaker 03: Sorry. [00:19:10] Speaker 03: Correct me if I've got this wrong, but the count three one for the Rico conspiracy to become life depended on the reliant, the judge's reliance on the dense murder. [00:19:22] Speaker 03: Is that correct? [00:19:23] Speaker 04: Actually, no, Your Honor. [00:19:25] Speaker 04: Did I have that wrong? [00:19:26] Speaker 04: In footnote 25 of the pre-sentence report, it says that even if you take out the Dent murder and CCE murder counts four and five, that it had no overall effect on the total offense level, which is 43. [00:19:42] Speaker 03: He said he was relying on the Dent murder. [00:19:46] Speaker 03: He said that. [00:19:46] Speaker 03: He said he considered it. [00:19:48] Speaker 03: But he said that's what he was relying on. [00:19:49] Speaker 03: And the only relevance would have at this point would be to bumping count three up to life. [00:19:57] Speaker 04: I believe the way the court framed it, he was talking about at the beginning of the resentencing, defense counsel raised three objections that the court ruled on, one of them being that the court should not consider in any manner the dent counts four and five. [00:20:14] Speaker 04: And the court said in a generalized statement that it believed under United States versus Watts that it could do so. [00:20:21] Speaker 03: I'm not being clear about my question. [00:20:23] Speaker 03: I'm sorry. [00:20:24] Speaker 03: Where in the record, as I read the record, he was relying on the Dent murder to get this up to life. [00:20:31] Speaker 03: You have to find something to move it up to life under count three. [00:20:35] Speaker 03: The only thing I see discussed is the Dent murder. [00:20:38] Speaker 03: Is there a place where he said he was relying on something else to bump that up to life? [00:20:46] Speaker 04: I don't recall there being any particular statement about what he was using particular to count three. [00:20:53] Speaker 03: Your judges need to identify the basis on which they are determining that this RICO conspiracy count is now a RICO conspiracy count in the category that's eligible for life sentence. [00:21:04] Speaker 03: It wouldn't otherwise be. [00:21:05] Speaker 03: Right, right. [00:21:06] Speaker 03: You have to identify that, right? [00:21:08] Speaker 04: I believe so. [00:21:10] Speaker 04: There were numerous RICO acts, rec tearing acts. [00:21:16] Speaker 03: The one that he pointed to. [00:21:19] Speaker 03: And that means a lot. [00:21:21] Speaker 03: The judge is the one that's there. [00:21:22] Speaker 03: The judge gets the discretion. [00:21:23] Speaker 03: The judge is the one making this decision. [00:21:25] Speaker 03: And the only thing he relied on was the tenth one, death murder, correct? [00:21:30] Speaker 04: I just see that would have been an item that the court relied on. [00:21:34] Speaker 04: However, I believe that this court statement was more general because I was talking on page A948, where this was briefly discussed. [00:21:44] Speaker 03: I'm asking what the district, not what we said, I'm asking what the district court relied on, and it was the Dent murder, and we haven't been able to find anything else, correct? [00:21:53] Speaker 03: That the district court said he was reliant. [00:21:55] Speaker 03: District court had to identify the basis. [00:21:57] Speaker 03: District court pointed to the Dent murder. [00:22:00] Speaker 03: That's what we got. [00:22:01] Speaker 04: That we do have that. [00:22:02] Speaker 04: But we also have the PSR statement that even without consideration of the Dent murder, that the total offense level for the RICO conspiracy would not raise. [00:22:14] Speaker 04: I can get the court's quote. [00:22:20] Speaker 03: I understand, but the PSR is not making the decision. [00:22:22] Speaker 03: The judge is making the decision. [00:22:24] Speaker 04: No, it's not. [00:22:25] Speaker 03: The judge is to identify it. [00:22:26] Speaker 03: So I understand the point you're making, but the judge didn't do it. [00:22:30] Speaker 04: But the court did accept, as did the parties, and the parties agreed that the total offense level for the RICO conspiracy was indeed 43. [00:22:38] Speaker 03: Is it the offense level that bumps up the RICO conspiracy charge, or is it the identification of a particular racketeering act? [00:22:49] Speaker 04: Actually, the PSR, your honor, says that racketeering Act 22, which was the Dent murder, was used, paragraph 145. [00:23:02] Speaker 04: However, the court did say, or not, I'm sorry, I'm misspeaking. [00:23:05] Speaker 04: The PSR did say that the removal of counts four and five in racketeering Act 22 would have no overall effect on the total offense level. [00:23:15] Speaker 03: Right, but that's because I assume the PSR was assuming you can consider dent anyhow, the dent murder anyhow, which you talked about, right? [00:23:25] Speaker 04: No, it says, however, should the court determine racketeering Act 22 is also invalid. [00:23:31] Speaker 04: Racketeering Acts 1 and 9 would be grouped with another of the murder racketeering acts. [00:23:35] Speaker 04: And ultimately, the total offense level for all of the counts would not change. [00:23:39] Speaker 04: It would remain 43. [00:23:40] Speaker 04: OK. [00:23:41] Speaker 03: So I think that's a different point. [00:23:43] Speaker 03: So what I'm trying to focus on here is I thought you agreed the district court needs to identify a racketeering act as the basis for upping that sentence to the life range. [00:23:57] Speaker 03: Right, the statute says if you find, then the cap is liable, correct? [00:24:03] Speaker 03: I believe so, Your Honor, yes. [00:24:06] Speaker 03: OK. [00:24:06] Speaker 03: And the one the district court identified, the PSR identified, was the Dent murder. [00:24:10] Speaker 03: And when it was suggested that you should rely on the Dent murder, the judge said, no, I can rely on the Dent murder even if the count is vacated. [00:24:20] Speaker 03: Correct. [00:24:21] Speaker 03: That's how the sentencing proceeded. [00:24:22] Speaker 03: But I thought it was also pretty crystal clear that the judge [00:24:27] Speaker 03: When something, when there's an acquittal, the judge has to find that the murder occurred by preponderance of the evidence, correct? [00:24:37] Speaker 03: Correct, but they can't do it. [00:24:40] Speaker 03: They can do it, but they have to find where in the record did Judge Lambert find by preponderance of the evidence that Mr. Smith committed the death murder? [00:24:51] Speaker 04: It did not specifically state at any point that it was finding by it makes a finding. [00:24:55] Speaker 03: Yes, or not. [00:24:56] Speaker 03: It did not. [00:24:57] Speaker 04: It did not. [00:24:58] Speaker 03: Finding to rely upon that. [00:25:00] Speaker 03: Okay. [00:25:01] Speaker 04: Thank you. [00:25:04] Speaker 04: However, I would also say that this was not an issue that was raised at the hearing. [00:25:09] Speaker 04: the defense counsel never asked for a specific finding and that you can also tell from the ineffective assistance counsel decision that I'm talking about this free sentencing. [00:25:19] Speaker 04: No, I understand your honor, but I don't think that there's any question that the court could could find that. [00:25:25] Speaker 04: So I didn't, but I did not. [00:25:27] Speaker 04: Yes. [00:25:28] Speaker 04: So, um, as to the plane air, [00:25:36] Speaker 04: I believe it would I believe it would need to say that specifically. [00:25:41] Speaker 04: Um but beyond that, there's there's certainly no question um in the additional points defense council made that um the court considered mister Smith personal circumstances. [00:25:52] Speaker 04: It specifically said that um the court made statements that it had clearly considered a circumstances. [00:26:00] Speaker 04: It acknowledged expressly that it was required to consider the [00:26:05] Speaker 04: including the history and characteristics of the defendant. [00:26:09] Speaker 04: It acknowledged Mr. Smith's plea for leniency. [00:26:13] Speaker 04: It recognized that he was youthful at the time of his offenses and that it was arguable that his disadvantaged home life led to his criminality and his rehabilitation and so forth. [00:26:27] Speaker 04: But it understood that [00:26:30] Speaker 04: It was impossible, as the court said, when it weighed those to overstate the gravity of Mr. Smith's offenses, that he was deeply embedded in the drug trafficking conspiracy that claimed many lives and helped to aid the district's status as a murder hotspot. [00:26:48] Speaker 04: um so the the statement that it must and shall impose a life sentence um no matter what Mr. Smith's personal circumstances were is out of context. [00:26:59] Speaker 04: The court even before making that statement was talking about all these these factors that it recognized and had considered um and and the fuller statement, the court was saying that it was um [00:27:15] Speaker 04: to communicate to our society that it will simply not tolerate such terrible acts no matter what the personal circumstances of the person committing them. [00:27:23] Speaker 04: This court must and shall adhere to its earlier decision and re-sentence Mr. Smith to life in prison. [00:27:29] Speaker 04: That is certainly not a reflection that the court was laboring under a misunderstanding that it was statutorily required to just simply re-sentence Mr. Smith as it had in the past. [00:27:42] Speaker 04: The court definitely considered it. [00:27:44] Speaker 04: This rehabilitation, and although we have not gotten into it, we certainly believe that Judge Lambert is the most appropriate judge, particularly considering his lengthy history with this case to resense Mr. Smith. [00:27:58] Speaker 04: Thank you. [00:27:58] Speaker 03: Thank you very much, counsel. [00:28:00] Speaker 03: We will give you two minutes for rebuttal, Ms. [00:28:02] Speaker 03: Van Pelt. [00:28:07] Speaker 00: I recognize that this is not something that your honors are doing routinely, but in this case, I think reassignment is appropriate. [00:28:15] Speaker 00: Looking at the wolf factors, the court does not have to find that Judge Lamberth is biased or incapable of doing a third sentencing hearing in accordance with the law or unable to put out of his mind the lengthy history with this case and all of the various co-defendants. [00:28:32] Speaker 00: Even setting all of that aside, fundamental to our judiciary is public confidence in the impartiality of judges and the proceedings over which they provide. [00:28:42] Speaker 00: And so I think the delay in this case is significant. [00:28:46] Speaker 00: And maybe one of the most important cases in my brief is the Hernandez case because it bears so many similarities. [00:28:52] Speaker 00: to the case that we have here. [00:28:54] Speaker 00: That's also a case where the Second Circuit remanded a case to a district court to hold a hearing and the district court waited over 10 years to hold that hearing. [00:29:06] Speaker 00: And then when it held the resentencing hearing, it again committed errors. [00:29:11] Speaker 00: In that case, the Second Circuit took an additional step of reassigning the sentencing for three reasons. [00:29:18] Speaker 02: Some of the delay here was not [00:29:20] Speaker 02: due to Judge Lambert's delay. [00:29:22] Speaker 02: There were delays that were a result of the reassignment of counsel and other things. [00:29:27] Speaker 02: Some of the delay may have been. [00:29:29] Speaker 02: the district court judges, but certainly not all of it. [00:29:33] Speaker 02: Or maybe even the lion's share of it. [00:29:35] Speaker 00: Well, I think it was the lion's share. [00:29:37] Speaker 00: So for instance, Mr. Smith filed a 2255 out of an abundance of caution in 2014, noting that, Judge Lamberth, we still need to hold this ineffective assistance of counsel hearing. [00:29:48] Speaker 00: The district court did not rule on that motion for seven years. [00:29:52] Speaker 00: It took the district court seven years to rule that that motion was premature. [00:29:57] Speaker 00: At another point, Mr. Smith's counsel filed with the court a notice that a hearing needed to be held, and the district court did not act on that filing for over three years. [00:30:06] Speaker 00: At one point, Mr. Smith's counsel filed a motion to withdraw, citing a conflict. [00:30:11] Speaker 00: The district court did not rule on that motion or appoint Mr. Smith another attorney for a year and a half. [00:30:17] Speaker 00: So I think there were delays to even do like routine simple things in this case. [00:30:22] Speaker 00: And so the question then becomes returning to what the Second Circuit cited in Hernandez. [00:30:29] Speaker 00: You know, there's there's a couple reasons why just for the appearance of justice, right? [00:30:32] Speaker 00: There were dozens of people in the courtroom at this hearing. [00:30:35] Speaker 00: There will be going forward. [00:30:41] Speaker 00: An objective observer might question the judge's impartiality given this gap. [00:30:47] Speaker 00: And so Judge Calabresi in the Second Circuit wrote, when a judge has, through a combination of the judge's own inaction of some government neglect and Judge Rao perhaps of the prisoner's lack of complaint, failed to act for some, in that case, 15 years, an objective observer might question the judge's impartiality, regardless of the result the judge ultimately reaches. [00:31:08] Speaker 00: And the judges in that case then talk about, even if the defendant is then sentenced below or the same or above what the original sentence is, an objective observer could still walk away thinking here that this is not how we should conduct court proceedings in this country. [00:31:29] Speaker 03: Any further questions from my colleagues? [00:31:34] Speaker 03: We want one sentence to wrap up and then [00:31:37] Speaker 00: One sentence, Your Honor. [00:31:38] Speaker 00: Life is an extraordinary sentence. [00:31:41] Speaker 00: It means a denial of hope. [00:31:42] Speaker 00: It means that good behavior and character improvement are immaterial. [00:31:46] Speaker 00: It means that whatever the future might hold in store for the mind and spirit of the convict, he will remain in prison for the rest of his days. [00:31:55] Speaker 00: Mr. Smith deserves a fair sentencing hearing. [00:31:57] Speaker 00: Please vacate his convictions and remand to another judge. [00:32:01] Speaker 03: Thank you very much. [00:32:02] Speaker 03: Ms. [00:32:02] Speaker 03: Van Pelt, you are appointed by this court to represent Mr. Smith in this case, and the court thanks you very much for your assistance. [00:32:09] Speaker 00: Thank you, Your Honor. [00:32:09] Speaker 03: The case is submitted.