[00:00:00] Speaker 03:
Good morning, ladies and gentlemen.

[00:00:02] Speaker 03:
Welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
Before we hear argument this morning, I want to dispose of some housekeeping matters.

[00:00:09] Speaker 03:
Specifically, the cases of Smith v. United States Trustee, and I have to give the case numbers because it's all the same case name, 24-169, 24-170, 24-173, and 24-174.

[00:00:28] Speaker 03:
Then Gantt v. O'Malley.

[00:00:31] Speaker 03:
Magana versus Ganya versus Garland.

[00:00:34] Speaker 03:
And effective, I'm sorry, tomorrow, two cases, Guadalupe Lopez Garcia versus Garland and Poco Rivas versus Garland.

[00:00:45] Speaker 03:
Those last two will be effective tomorrow.

[00:00:49] Speaker 03:
So the first case for argument today is Agustin Simon versus United States.

[00:00:55] Speaker 03:
I guess Mr., did you say it?

[00:00:57] Speaker 03:
Bresnahan?

[00:00:58] Speaker 04:
Bresnahan.

[00:00:59] Speaker 03:
Very good.

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

[00:01:01] Speaker 04:
I may please the court.

[00:01:04] Speaker 04:
Good morning.

[00:01:04] Speaker 04:
I'm Mike Bresnahan.

[00:01:05] Speaker 04:
I represent Domingo Augustine Simon.

[00:01:10] Speaker 04:
This is a remand for a de novo resentencing.

[00:01:15] Speaker 04:
I wanted to very quickly go over what's changed since the original sentencing.

[00:01:19] Speaker 04:
The gun conviction and its contribution to the overall mosaic or complexion of the case is gone.

[00:01:27] Speaker 04:
We've had 11 plus years of demonstrated rehabilitation by Augustine.

[00:01:33] Speaker 04:
That was presented to the court in the second sentencing.

[00:01:36] Speaker 04:
That included educational self-improvement courses, solid job history at the Bureau of Prisons, and, of course, 11 years for him to examine his life.

[00:01:47] Speaker 04:
This time around, district court was presented with a fact-rich detailed analysis.

[00:01:54] Speaker 04:
of the rape allegation that was not presented in the first sentencing or likely considered by the first sentencing judge or the first appellate panel.

[00:02:04] Speaker 04:
This time around the district court was presented with an expanded argument as to why the district court should have rejected the hostage taking guidelines in favor of the other 3553A factors.

[00:02:19] Speaker 03:
With respect, you had an opportunity to brief all of this before the district court, right?

[00:02:24] Speaker 03:
and argue it before the district court.

[00:02:26] Speaker 03:
And the district court returned a below-guideline sentence.

[00:02:30] Speaker 03:
So apart from your disagreement about the substantive reasonableness of the sentence, how did the district court procedurally err in failing to consider sentence disparities?

[00:02:44] Speaker 04:
Well, there are a couple of areas where I think there was a procedural error, Your Honor.

[00:02:55] Speaker 04:
The finding that there was, in fact, a rape, which is probably the most important procedural error that I would point to, because of the probable impact.

[00:03:05] Speaker 03:
Was that a procedural error or is it just simply you don't agree with the court's analysis of what?

[00:03:12] Speaker 04:
Well, I'm asking the, I'm sorry.

[00:03:14] Speaker 04:
Go ahead.

[00:03:15] Speaker 04:
Yeah.

[00:03:15] Speaker 04:
I'm asking this court to, after considering the arguments that I've made and prepared to continue to make today,

[00:03:25] Speaker 04:
that that finding was clearly erroneous.

[00:03:29] Speaker 04:
And if it was clearly erroneous, I think under Cardi that would be procedural error.

[00:03:35] Speaker 04:
The remedy would be to send the case back for re-sentencing absent that finding.

[00:03:42] Speaker 04:
And the judge would then recalibrate his thinking on that and perhaps come up with something other than the 35 years.

[00:03:51] Speaker 04:
I believe in that case with the rape allegation,

[00:03:55] Speaker 04:
Given all of the other facts and considerations in this court, that's the only explanation I can come up with for why the judge imposed a 35-year sentence instead of a 25-year sentence, which is a sentence that was given to the co-defendant who went to trial in this case, Rabinales, I believe, Cassia.

[00:04:17] Speaker 02:
Counsel, the information about the rape obviously informs the sexual exploitation enhancement.

[00:04:24] Speaker 02:
Is it your position that those facts inform any of the other enhancements?

[00:04:31] Speaker 04:
Is it our position that the rape allegation informs any of the other enhancements?

[00:04:39] Speaker 04:
I don't think that's my argument at this point in time.

[00:04:44] Speaker 02:
I'm asking this because even if we were to throw out the sexual exploitation enhancement,

[00:04:50] Speaker 02:
wouldn't that be harmless error because with all of the other factors that the district court considered, you would have already been at the offense level maximum.

[00:05:00] Speaker 02:
So adding that enhancement to this didn't actually change the bottom line of the sentence.

[00:05:05] Speaker 04:
Well, it didn't change the guidelines range.

[00:05:07] Speaker 04:
I think it did change the complexion of the case.

[00:05:11] Speaker 04:
Absent the rape, assuming that... So you're saying it informed the

[00:05:17] Speaker 02:
district court's exercise of discretion, but not its calculation.

[00:05:20] Speaker 04:
That's correct.

[00:05:21] Speaker 04:
That's correct.

[00:05:21] Speaker 04:
I think it changes the complexion of the case pretty dramatically, because I think it did add about 10 years to the case, again, comparing... But what in the record tells you that?

[00:05:32] Speaker 02:
What in the record tells me... I mean, I understand sort of the logical point of that's a pretty egregious fact, and maybe it would influence the sentencer, but can you point to anything specific in the record to show us that that particular thing

[00:05:44] Speaker 02:
sort of as a but for a reason why the district court chose what it chose?

[00:05:47] Speaker 04:
I can't find any reasons why there would have been any difference.

[00:05:56] Speaker 04:
I think that's the way I come at that issue.

[00:05:58] Speaker 04:
There's just nothing in the record that would justify the 10-year difference between those two individuals.

[00:06:05] Speaker 02:
Well, didn't the district court find that this defendant had a bigger leadership role?

[00:06:12] Speaker 04:
In a sense, yes, he was considered, he did some things that would couch him or posture him as a supervisor of this drop house.

[00:06:24] Speaker 04:
But the government itself in the Rabinales-Casillas sentencing went out of their way, and I have a quote from that sentencing, went out of their way to compare Rabinales to Augustine

[00:06:43] Speaker 04:
and make the argument that the two were essentially equivalent.

[00:06:49] Speaker 04:
Very quickly, what the government said to the judge in that sentencing is, in addition to all of this, there was conduct different than the defendant Augustine Simon, who was the operative controller of the House.

[00:07:02] Speaker 04:
But this defendant, Robinales, his role stretched all the way back to the interior of Mexico, across the border, through the desert, into the House, where this

[00:07:11] Speaker 04:
where he was with these aliens and in charge of them.

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All of this, the government indicates, this was not the only or the first time the defendant had done something like this.

[00:07:22] Speaker 04:
Indeed, in order to be a guide through the desert, the defendant needed a certain amount of knowledge and experience.

[00:07:28] Speaker 04:
I think that goes towards, if you're looking at it from a 3553A perspective, the history and characteristics of this defendant here.

[00:07:37] Speaker 04:
So I think in that proceeding,

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They were playing up his role, and they were, I think, arguing that he was equivalent to Augustine.

[00:07:48] Speaker 03:
But counsel, with respect, as you well know, the judge has a lot of discretion in sentencing, a lot.

[00:07:55] Speaker 03:
Correct.

[00:07:56] Speaker 03:
And you've got a below guideline sentence.

[00:07:59] Speaker 03:
I'm not sure all district judges would have done that.

[00:08:03] Speaker 03:
To some degree, if you want to send it back, you actually may put your client in a worse position, given the totality of all of this.

[00:08:10] Speaker 03:
But it gets back to my original question.

[00:08:12] Speaker 03:
It seems to me you're simply arguing that the sentence is substantively unreasonable.

[00:08:18] Speaker 03:
Isn't that really what it boils down to, given all of the facts that you've cited and the errors that you think were contained in the facts?

[00:08:27] Speaker 04:
Well, yes.

[00:08:29] Speaker 04:
The argument that the judge should have rejected the hostage-taking guidelines, that is a substantive reason for this argument.

[00:08:40] Speaker 03:
But the jury convicted your client of that.

[00:08:42] Speaker 03:
Isn't that sufficient to bring your client within the scope of 2A4.1?

[00:08:50] Speaker 03:
You're bound by the jury.

[00:08:52] Speaker 04:
Yes, but I don't think that that ends the analysis.

[00:08:56] Speaker 04:
For the jury to find guilt in this case, the jury had to find nothing more than the following, seizure or detention of one person, threat to kill, injure, or continue to detain one person,

[00:09:09] Speaker 04:
with the purpose of compelling another person to act in a certain way.

[00:09:13] Speaker 04:
My argument throughout has been that this was not a kidnap ransom scenario.

[00:09:20] Speaker 04:
There were some features that allowed the jury to find guilt in this case.

[00:09:24] Speaker 04:
I'll grant you that.

[00:09:25] Speaker 04:
But the business model here was not that.

[00:09:28] Speaker 04:
That's a completely different business model or concept.

[00:09:32] Speaker 04:
The business model here, even though lines may have been crossed,

[00:09:36] Speaker 04:
uh... was uh... fee for services and as far as i can tell from all of the evidence i saw that's what was going on people were coming into this drop house they were uh... waiting for their fees to get paid and they were moving on you want to save any of your time it's entirely up to you but you have just a little over a minute for a rebuttal if you want it may i save a minute please do thank you very well let's hear from the government uh...

[00:10:05] Speaker 03:
Let's see.

[00:10:08] Speaker 03:
Ms.

[00:10:09] Speaker 03:
Zambrano, is that correct?

[00:10:10] Speaker 01:
Yes, Your Honor.

[00:10:10] Speaker 03:
Very well.

[00:10:18] Speaker 03:
Please.

[00:10:21] Speaker 01:
Good morning, Your Honors.

[00:10:22] Speaker 01:
May it please the Court, Diamond Zambrano on behalf of the United States.

[00:10:26] Speaker 01:
Your Honors, this is an appeal of a resentencing in which the District Court took seven years off of a sentence that this Court previously held was substantively reasonable.

[00:10:35] Speaker 01:
That district court sentenced the defendant to a below-guidelines sentence of 35 years.

[00:10:41] Speaker 02:
Can I ask you something about that?

[00:10:45] Speaker 02:
We did have a prior appeal where this court looked at the sentence and as you just said, said that the district court properly weighed all the factors and made a valid sentencing choice.

[00:10:56] Speaker 02:
What weight, if any, do we give that?

[00:11:00] Speaker 01:
Your Honor, I think that

[00:11:03] Speaker 01:
That factor should be taken into consideration when analyzing whether the district court considered all of the defendant's arguments at sentencing, whether the defendant, excuse me, whether the court considered all of the Section 3553A factors.

[00:11:20] Speaker 01:
We talked about whether the district court committed any procedural errors in failing to mention, specifically mentioned the 3553A6 factor.

[00:11:30] Speaker 01:
The court wasn't required to take off every single 3553A factor when it sentenced the defendant.

[00:11:41] Speaker 02:
Let me boil it down, I guess, a little bit more what I'm trying to get at is the district court on the counts that remained gave the same sentence at the first sentencing and the second one in terms of time, right?

[00:11:56] Speaker 02:
Correct, Your Honor.

[00:11:58] Speaker 02:
Your opposing counsel is arguing that the facts presented at the second sentencing round were different, at least as to the rape issue.

[00:12:06] Speaker 02:
And maybe the arguments were different.

[00:12:08] Speaker 02:
I'm not sure that matters as much as maybe the factual record being different.

[00:12:12] Speaker 02:
So in light of the fact that there was a new sentencing hearing and some things might have been new or different, what do I make of the fact that we previously looked at this exact same number or sort of bottom line sentence and said it was fine?

[00:12:30] Speaker 01:
Your honor, I would say that this is a new sentencing, so it's subject to de novo review.

[00:12:36] Speaker 01:
So we shouldn't give any sort of weight to our prior decision?

[00:12:41] Speaker 01:
I think that this court isn't required to give weight to that prior decision.

[00:12:47] Speaker 01:
However, the district court, having been the same judge that presided over the trial, the first sentencing in 2013, sentencing of all the co-defendants, the resentencing, I think he was entitled to rely on that decision.

[00:13:00] Speaker 01:
and this court's finding that it was a substantively reasonable sentence and that this court also held that there were no unwarranted sentencing disparities among the defendants with similar records who had been found guilty of similar conduct.

[00:13:14] Speaker 01:
I think that goes to the defendant's argument that the district court failed to address the sentencing disparities.

[00:13:20] Speaker 01:
I think the district court should have been able to rely on this court's previous holding that there were no unwarranted sentencing disparities.

[00:13:30] Speaker 00:
He's sentenced to 35 years, and the co-defendants have significantly shorter sentences.

[00:13:41] Speaker 00:
What is the difference?

[00:13:43] Speaker 00:
Why was Mr. Augustine Simone sentenced to such a longer sentence than the other co-defendants?

[00:13:52] Speaker 01:
Yes, Your Honor.

[00:13:53] Speaker 01:
So the government recognizes that there are disparities between Augustine Simon and his co-defendants.

[00:13:59] Speaker 01:
And there's two explanations for those disparities, and both of those explanations are permissible explanations under this court's president.

[00:14:07] Speaker 01:
First, four of the co-defendants pleaded guilty, and they pleaded guilty to different crimes than Augustine Simon was convicted of.

[00:14:19] Speaker 01:
pleaded guilty to the 924C conviction.

[00:14:22] Speaker 01:
They were sentenced to, I believe, seven and eight years.

[00:14:25] Speaker 01:
The other two pleaded guilty to count four, which was harboring illegal aliens.

[00:14:30] Speaker 01:
They were sentenced to two years and 51 months, respectively.

[00:14:34] Speaker 01:
And the fact that they pleaded guilty is a permissible explanation.

[00:14:39] Speaker 01:
And United States v. Cardy, in that case,

[00:14:42] Speaker 01:
This court also analyzed whether there was sentencing disparities between a defendant and his co-defendant.

[00:14:48] Speaker 01:
That was a bank robbery case.

[00:14:50] Speaker 01:
In that case, the defendant was sentenced to 39 years.

[00:14:53] Speaker 01:
His co-defendants who pleaded guilty, and they also cooperated with the government, got eight years and 10 years respectively.

[00:14:59] Speaker 01:
And in that case, this court found that there were no sentencing disparities between that defendant and his co-defendant who pleaded guilty.

[00:15:06] Speaker 01:
Similar range of disparities here in this case.

[00:15:09] Speaker 01:
As to what the government believes is the only relevant comparator here, which is Rabinelles Casillas, who went to trial, who was convicted of the same crimes as Augustine Simon, there is more than just the rape that differentiates those two.

[00:15:27] Speaker 01:
Rabinelles Casillas did not receive an aggravating role enhancement, although the defense says that the government advocated for one.

[00:15:36] Speaker 01:
In the end, the district court and the precinct's report doesn't reflect that.

[00:15:40] Speaker 01:
That means he was not a manager, leader, organizer, or a supervisor.

[00:15:45] Speaker 01:
In addition, Augustine Simon was the one who brandished a gun and broke out a fight that occurred between the guards in the house and the undocumented individuals who were held as victims in the house.

[00:15:57] Speaker 01:
And there's multiple factors that point to the fact that Augustine Simon was the organizer leader in this house.

[00:16:05] Speaker 01:
He rented the home.

[00:16:06] Speaker 03:
From the government's perspective,

[00:16:09] Speaker 03:
these two defendants were entirely different in the sense that there were elements that you've just delineated that segregated the two people.

[00:16:19] Speaker 03:
And that accounts for the difference in the sense.

[00:16:21] Speaker 03:
Is that correct?

[00:16:23] Speaker 01:
Yes, that's correct, Your Honor.

[00:16:24] Speaker 01:
There's, I'd say, three things that account for the 10-year difference.

[00:16:28] Speaker 01:
The rape, his aggravating role as an organizer or leader.

[00:16:33] Speaker 01:
He rented the house.

[00:16:35] Speaker 01:
He paid for utilities, managed ledgers, made demands on price.

[00:16:39] Speaker 01:
was involved in securing payment.

[00:16:41] Speaker 01:
And then the third thing that I would say that separates him from Rabinales-Cacias is the brandishing the gun and breaking up the fight.

[00:16:50] Speaker 02:
And I guess it's not just the rape, right, the alleged rape, but also other sexual assaults against multiple illegal aliens that were being held.

[00:17:00] Speaker 01:
That's true, Your Honor.

[00:17:01] Speaker 01:
So the defendant in this case had the rape allegation.

[00:17:04] Speaker 01:
There were multiple witnesses that testified that the women in this house were being sexually abused by multiple guards.

[00:17:13] Speaker 01:
And so for purposes of calculating the sentencing guidelines, they all received the plus six enhancement for sexual exploitation of a victim.

[00:17:21] Speaker 01:
That was based off of the abusive sexual conduct that was happening in the home, the groping of the women

[00:17:30] Speaker 01:
this defendant in this case received that enhancement not only based off of the abuse of sexual conduct, but also on the rape.

[00:17:37] Speaker 01:
Um, and the court, the district court made that finding in, at the sentencing hearing.

[00:17:42] Speaker 00:
So he's received the same six level enhancement as the other defendants.

[00:17:46] Speaker 00:
Correct.

[00:17:51] Speaker 01:
Unless there are any further questions from the panel.

[00:17:55] Speaker 03:
Other questions by my colleagues?

[00:17:56] Speaker 03:
I think not.

[00:17:57] Speaker 01:
Thank you.

[00:17:58] Speaker 01:
The government would respectfully ask you to affirm the district court's 35-year sentence.

[00:18:05] Speaker 03:
All right.

[00:18:05] Speaker 03:
Counsel, you have a little rebuttal time.

[00:18:07] Speaker 04:
Thank you.

[00:18:09] Speaker 04:
Just a couple of things real quick.

[00:18:10] Speaker 04:
There were two other procedural errors alleged.

[00:18:14] Speaker 04:
One was the role enhancement.

[00:18:16] Speaker 04:
We argued that

[00:18:19] Speaker 04:
Augustine, although a supervisor at the drop house, was not a leader in any sense in the organizational structure, or at least there was no evidence of that.

[00:18:31] Speaker 04:
This was a larger organization, obviously, from the evidence.

[00:18:34] Speaker 03:
I thought there was plenty of evidence of that.

[00:18:36] Speaker 03:
It seems to me you just disagree with the district judge's evaluation of the evidence that was presented.

[00:18:42] Speaker 03:
Isn't that really what we're dealing with here?

[00:18:44] Speaker 04:
Well, we are allowed to argue that

[00:18:48] Speaker 04:
the judge's decision was clearly erroneous.

[00:18:51] Speaker 03:
And your basis for saying it was clearly erroneous is what?

[00:18:56] Speaker 04:
There is simply no evidence showing that he was anything more than a supervisor.

[00:19:01] Speaker 04:
It's the absence of evidence and that's where the argument comes from.

[00:19:05] Speaker 04:
Mitigation, I saw nothing in the record indicating the judge even considered the mitigation evidence, which we felt was considerable in this case and which is one of the big differences between the first sentence and the second sentence.

[00:19:19] Speaker 03:
Your time is up.

[00:19:20] Speaker 03:
Let me ask my colleagues whether either has additional questions.

[00:19:23] Speaker 03:
I think not.

[00:19:24] Speaker 03:
Thanks to both counsel for your argument.

[00:19:26] Speaker 03:
The case just argued is submitted.