[00:00:09] Speaker 02: Good morning, Your Honors. [00:00:11] Speaker 02: Katie Hurlbrink on behalf of Anthony Navarro. [00:00:14] Speaker 02: In this case, the government pled and proved that Mr. Navarro had driven drugs across the border one time. [00:00:21] Speaker 02: The government did not try to prove that he had done it more than once. [00:00:25] Speaker 02: And under Supreme Court precedent, the government bore the burden on that issue. [00:00:29] Speaker 02: Thus, the district court simply should have sentenced Mr. Navarro as a one-time importer, disregarding the possibility that he had committed additional drug crimes. [00:00:40] Speaker 02: Yet, near the beginning of the sentencing hearing, the court began to discuss other importers who had done it more than once, stating that might be his case. [00:00:50] Speaker 02: And the court continued to emphasize questions about how many times he did it, classifying the number of loads as a massive factor. [00:01:00] Speaker 02: and how many times did they do it as one of the biggest factors that comes into play in a case like this. [00:01:06] Speaker 01: Was the sentencing range wrong for someone where the conviction was just based on one event? [00:01:14] Speaker 02: Does your honor mean the guidelines range? [00:01:16] Speaker 02: Yes. [00:01:17] Speaker 02: No. [00:01:17] Speaker 02: The guidelines range was undisputed. [00:01:19] Speaker 02: The only argument at sentencing was what sentence was due under the 3553A factors. [00:01:27] Speaker 01: And the judge [00:01:29] Speaker 01: went below the guidelines range, right? [00:01:32] Speaker 02: That's correct, Your Honor. [00:01:34] Speaker 02: But the Fifth Amendment case law does not speak in terms of where the judge ended up on the scale of possible sentences. [00:01:43] Speaker 02: It doesn't talk about, did the judge go above or below the guidelines? [00:01:47] Speaker 02: Did he give a relatively high or relatively low sentence? [00:01:50] Speaker 02: And to be clear, in the context of our district, this was not a relatively low sentence. [00:01:55] Speaker 02: It was years above what probation recommended. [00:01:58] Speaker 02: But the case law speaks... Oh, I'm sorry. [00:02:01] Speaker 03: I don't mean to... Well, it just seems to me the judge was responding to the counsel's argument that essentially Mr. Navarro should be sentenced in the same way as someone who had qualified for other sentencing reductions, and the judge was just responding to that argument. [00:02:19] Speaker 02: I think that, I understand your Honor's reading of the record there, but to the extent that the judge was giving Mr. Navarro a higher sentence than other people because of speculation that he committed uncharged crimes, that's still a Fifth Amendment violation. [00:02:38] Speaker 02: To the extent he was giving Mr. Navarro a higher sentence than he would have because he shifted the burden to Mr. Navarro concerning uncharged crimes. [00:02:49] Speaker 02: that is still a Fifth Amendment violation. [00:02:52] Speaker 02: And I think we can see here that the guidelines range is not dispositive in the actual case law. [00:03:03] Speaker 02: Mitchell discusses the question presented there as a question of whether in determining facts about the crime, which bear upon the severity of the sentence, [00:03:15] Speaker 02: the court can in fact draw adverse inferences from silence. [00:03:19] Speaker 01: And so that was the problem here, is that the court in comparing him to other importers, for example, he was defining- How do we separate this from just, I mean, I don't think you dispute that he didn't meet the criteria for the safety valve in minor role, right? [00:03:35] Speaker 02: That's absolutely correct, Your Honor, yes. [00:03:38] Speaker 01: So at that point, [00:03:40] Speaker 01: That's why I think the judge was saying that he got a higher sentence than other people. [00:03:45] Speaker 02: I definitely believe that the court was in part responding to the guidelines. [00:03:51] Speaker 02: But at ER 22, we see the court specifically saying that, so he's comparing Mr. Navarro to other people who've gotten minor roller safety valve. [00:04:01] Speaker 02: He says, if they proffer, then theoretically, you have an idea of what they did and how involved they were. [00:04:07] Speaker 02: And did they make one load or two loads or three loads and what did they do and he says that that is a massive factor because and this is he putting aside. [00:04:20] Speaker 02: impact it has on the guidelines. [00:04:22] Speaker 02: They are being sentenced for what they did and for their involvement in the offense and this is somebody I don't know what his role is, I don't know how many times he did it. [00:04:30] Speaker 02: And that's not the only time that he emphasized the number of crossings. [00:04:34] Speaker 01: But isn't saying I don't know how many times he did it and I don't know his role just a way of saying I don't know if he had a minor role? [00:04:42] Speaker 02: To the extent the court was discussing the actual crime pled and proved here, we're totally fine with that. [00:04:49] Speaker 02: He was totally, it was completely fine for the judge to cite, you know, for example, how much time did he have to think about it? [00:04:58] Speaker 02: Or, you know, how much was he paid? [00:05:01] Speaker 02: Those kinds of factors did have to do with the sentence pled and proved. [00:05:05] Speaker 02: the way the court crossed the line was by speculating without evidence that Mr. Navarro may have committed this crime more than once. [00:05:16] Speaker 00: Where does he do that? [00:05:17] Speaker 00: I mean, what he's saying is, I can't make a finding on minor role. [00:05:24] Speaker 00: Where does he speculate that he did this more than once, and that's why his sentence is going to be what it is? [00:05:34] Speaker 00: Sure, Your Honor. [00:05:35] Speaker 02: I am going to quote the court on ER 31, but before I do, I just want to quickly establish something, and that is that if the court was truly holding the government to its burden to prove any uncharged crimes, then the factor of how many times he did it should have been as mitigated as possible here. [00:05:54] Speaker 02: It should have been one. [00:05:56] Speaker 03: The government was the government. [00:05:57] Speaker 03: I mean, all of this transcript is the judge responding to Bara's counsel's arguments that he should be treated as someone who qualified for minor role in safety valve reductions. [00:06:08] Speaker 03: And I don't see the government arguing that his sentence should be increased because he actually engaged in more than the proven incident. [00:06:16] Speaker 03: And when the judge actually talks about the basis for the sentencing, it's quite straightforward. [00:06:22] Speaker 02: Um, your honor. [00:06:23] Speaker 02: So the, the, [00:06:25] Speaker 02: Defense was asking for a lower sentence, but there are two ways you can ask for a lower sentence. [00:06:31] Speaker 02: You can say that a mitigating factor applies, so you should impose a lower sentence, for example, because the client is young, or you can say that the government has not met their burden to prove an aggravating factor. [00:06:45] Speaker 02: And in the face of that kind of argument, it is not permissible for the district court to then shift the burden to the defendant. [00:06:52] Speaker 02: I mean, that's what we have in Mitchell. [00:06:53] Speaker 01: But is there anything that suggests that the judge found an aggravating factor? [00:06:57] Speaker 02: Yes, Your Honor. [00:06:59] Speaker 02: And so, as noted, if the court had really held the government to its burden, then the factor of how many times he did it should have been as mitigated as possible. [00:07:08] Speaker 02: It should have been one. [00:07:09] Speaker 02: But what he says on ER 31, he's wrapping up the 3553 and A analysis, and he says that he's considered all the factors, but, quote, there are not as many mitigating factors in this case as there are in most of them. [00:07:23] Speaker 02: The biggest, perhaps one of the biggest factors that comes into play in a case like this is what did the person do? [00:07:29] Speaker 02: How many times did they do it? [00:07:32] Speaker 02: And so there, he's citing how many times did they do it as a factor that is not mitigated here. [00:07:40] Speaker 01: Similarly, at the- But that doesn't mean he found an aggravating factor. [00:07:43] Speaker 01: I mean, I think it would have been a fact. [00:07:47] Speaker 01: Everything would be lower if he met the minor role adjustment, but he didn't. [00:07:51] Speaker 02: Yes, Your Honor. [00:07:51] Speaker 02: But even still, the court, as he said at ER 22, was considering the number of crimes, even putting aside the impact it has on the guidelines because he wanted to sentence my client for what he did. [00:08:04] Speaker 02: And so again, we see on ER 11, the court is responding to the argument that Mr. Navarro is young and that there are no aggravating factors. [00:08:12] Speaker 01: But if you're right about this, then wouldn't everyone who [00:08:18] Speaker 01: doesn't get the minor role but only the conviction is only based on one event, end up with the minor role anyway? [00:08:25] Speaker 02: No, Your Honor. [00:08:26] Speaker 02: And to be clear, the defense counsel said at sentencing, I know his sentence is going to be higher because he can't establish the minor role guidelines because the guidelines are higher. [00:08:37] Speaker 03: And then counsel argued and said, but I still want you to give him the same sentence you would give to someone who qualified for minor role and safety valve. [00:08:44] Speaker 03: And the judge said, I can't. [00:08:46] Speaker 03: And then it seems to me, counsel was saying, can you just please explain that to my client? [00:08:50] Speaker 03: And the judge did. [00:08:51] Speaker 03: And then counsel made the argument again and everything that you quote seems to me to be in response to the argument from defense counsel. [00:08:59] Speaker 03: that the judge should essentially sentence Ms. [00:09:01] Speaker 03: Navarro in the same way that someone who actually qualifies for safety valve in minor role. [00:09:07] Speaker 02: Well, Your Honor, even if that is the case, even if he's responding to the defense, he is still not allowed to cite as a basis for his sentence, as one of the facts bearing upon the severity of the sentence, that he may have done it more than once. [00:09:21] Speaker 02: And with that, I'd like to reserve the remainder of the time. [00:09:23] Speaker 02: Thank you. [00:09:34] Speaker 04: Good morning and may it please the court, Kelly Reese on behalf of the United States. [00:09:38] Speaker 04: The court should affirm Navarro's 80-month sentence for the importation of methamphetamine for two reasons. [00:09:45] Speaker 04: First, the court thoroughly explained its reasoning for imposing a below-guidelines sentence after considering Navarro's argument under 3553A that he should receive a variance based on the fact that he was a minor participant in the events. [00:09:59] Speaker 04: And second, the court did not consider Navarro's exercise of his Fifth Amendment right to remain silent or draw any adverse inferences from that silence in fashioning the appropriate sentence here. [00:10:11] Speaker 04: Turning to the first point, the court sufficiently explained its reasoning for rejecting Navarro's argument that he should receive essentially an equivalent variance under 3553A because the circumstantial evidence supports the finding that he was a minor participant. [00:10:29] Speaker 04: The court pointed to Amendment 794 to the sentencing guidelines that outlines the factors a court can consider when determining whether a mitigating role adjustment is appropriate. [00:10:43] Speaker 04: And those factors were at the forefront of the court's mind when it found that there was not enough information in the record to support a minor role adjustment here. [00:10:56] Speaker 04: So the court focused on [00:10:59] Speaker 04: what Navarro did, how many times he did it, how much planning was involved, the financial stake that he had in the offense, as well as the amount of time he had for reflection. [00:11:10] Speaker 04: And there was no evidence in the record as to any of those factors. [00:11:16] Speaker 04: Did the government put in any evidence on Roe? [00:11:20] Speaker 04: No, Your Honor, the government in its sentencing papers acknowledged that the defendant failed to meet his burden of showing that he was substantially less culpable than the average participant in the offense. [00:11:36] Speaker 04: And so the court had before it essentially just the facts of the offense that Mr. Navarro drove a vehicle loaded with 100 pounds of methamphetamine into the United States from Mexico. [00:11:50] Speaker 04: But there was no information about [00:11:53] Speaker 04: You know his financial state there was no information about his role in this organization and so the court explained its reasoning for the 88 month downward variance from the properly calculated guidelines of 168 to 210 months. [00:12:10] Speaker 04: And the court noted some of the factors that Navarro argued in his argument for a variance, including Navarro's youth, his lack of role models growing up. [00:12:22] Speaker 04: The court also mentioned his lack of convictions as well as his strong employment history given his age as a mechanic. [00:12:31] Speaker 04: Now, the court did note that this case was aggravated given the type and quantity of narcotics. [00:12:37] Speaker 04: This was more than 100 pounds of methamphetamine. [00:12:41] Speaker 04: But the court was clear that it wouldn't guess as to Navarro's role. [00:12:45] Speaker 04: Given the lack of information in the record to support a finding that he was a minor participant, the court said, I don't know what his role was. [00:12:54] Speaker 04: And the court was unwilling to make those inferential leaps that Navarro was arguing in favor of. [00:13:00] Speaker 04: in his sentencing papers and then at the sentencing hearing. [00:13:04] Speaker 00: The one thing that gave me pause in this whole sentencing was that the court seemed to be really trying to pressure him to cooperate and to make himself eligible for safety valve or perhaps a motion by the government and [00:13:28] Speaker 00: I don't think defense counsel quite made this argument, but it seemed like the judge was, he was not happy. [00:13:43] Speaker 00: I won't go further than that at this point, but he was not happy that this defendant was not disclosing what he knew about the crime and others involved in the crime. [00:13:59] Speaker 00: He doesn't expressly say this, but it seemed to me like that kind of tainted the sentencing. [00:14:06] Speaker 00: And we sat here this week and we had a situation where someone actually did cooperate and was scared for his life. [00:14:16] Speaker 00: And, you know, I think it just kind of troubles me that [00:14:25] Speaker 00: The failure to cooperate, say, if you're dealing with a cartel or something like that, should not be held against the person in any way. [00:14:34] Speaker 00: But there was a lot of colloquy at the beginning about, are you sure? [00:14:37] Speaker 00: Are you sure? [00:14:38] Speaker 00: You don't want to do this? [00:14:39] Speaker 00: You know you're going to have a big sentence if you don't do this. [00:14:41] Speaker 00: And I found that troubling about this sentencing. [00:14:46] Speaker 04: So to kind of your honor's first point about the court, [00:14:51] Speaker 04: sort of suggesting to the defendant whether he wanted to seek the minor role in safety valve adjustments. [00:14:59] Speaker 04: I think everyone here wanted to make sure that Navarro understood that his decision not to provide any information about the offense would impact the amount of time he spent in custody. [00:15:14] Speaker 04: And so at the outset of the hearing, the court says, am I understanding correctly that he's not seeking minor role or safety valve and Navarro's counsel even says, you know, I've advised him as to this, but maybe hearing it from your honor will [00:15:30] Speaker 04: perhaps change his mind. [00:15:31] Speaker 04: And so I think the court here wanted to make very clear to him that this was an avenue that was open to him. [00:15:39] Speaker 04: However, the court also made clear that he didn't have to speak to anyone. [00:15:44] Speaker 04: He didn't have to talk to the government about the offense, and it was his right not to. [00:15:48] Speaker 04: But by not doing so, it would impact the amount of time he spent in custody, because the court would not have enough information to find that he was a minor participant. [00:15:59] Speaker 04: As to whether that sort of tainted the overall proceeding, it's clear based on both the 88-month variance and the court's colloquy when giving, imposing the sentence, [00:16:12] Speaker 04: that it did consider those mitigating factors and equities in Navarro's favor in deciding that that level of variance was appropriate here. [00:16:23] Speaker 04: So the court did talk about his youth, his troubled childhood, and all of those things in sort of deciding that the 80-month sentence ultimately was the most appropriate in this case. [00:16:37] Speaker 01: I think your opposing counsel is arguing that when the judge said, I don't know how many times he did it, that's speculating that he did it more times because he was really only convicted of one time. [00:16:49] Speaker 01: And so how do you respond to that? [00:16:50] Speaker 01: I think that's her strongest argument that even if it's a little vague, it really is suggesting that there were more times and that there was no evidence to support that. [00:16:58] Speaker 04: So it's important to look at the comments regarding, I don't know how many times he did it, within the context of the minor role analysis. [00:17:08] Speaker 04: And it's common for courts in the Southern District of California, when examining the role of those people who have imported drugs and acted as a courier, [00:17:19] Speaker 04: how many times they've acted as a courier in the past. [00:17:22] Speaker 04: And that can go to their knowledge of the drug trafficking organization, the amount of planning, the amount of trust that organization places in them. [00:17:32] Speaker 04: So the court was using it more as a shorthand to those role factors. [00:17:38] Speaker 04: And not [00:17:41] Speaker 04: And by its explicit words, the court did not say, I'm assuming he did more than just the one time that he imported methamphetamine. [00:17:52] Speaker 04: The court says, I don't know. [00:17:53] Speaker 04: And that's the common theme throughout this sentencing hearing is that there was not enough information for the court to find that. [00:18:04] Speaker 04: And so, ultimately, the court did not hold Navarro's silence against him. [00:18:09] Speaker 04: As I mentioned, the court said at multiple points that it was his right to not speak to the government, and he didn't have to say anything about the offense. [00:18:19] Speaker 04: I'll speak very briefly about the standard of review here. [00:18:23] Speaker 04: Navarro did not object to any aspect of the sentencing before the lower court, and so therefore the plain error standard would apply here. [00:18:34] Speaker 04: And Navarro has not shown any error, let alone a plain error, and therefore the court should affirm the sentence. [00:18:42] Speaker 04: Thank you. [00:18:44] Speaker 00: Thank you, counsel. [00:18:45] Speaker 00: Ms. [00:18:46] Speaker 00: Herbrink, you had some time. [00:18:50] Speaker 02: Thank you, Your Honor. [00:18:53] Speaker 02: So I heard your honor's concern about the pressure to plead, or sorry, the pressure to talk to the government to get these guidelines enhancements at the beginning of the hearing, and that really is the gravamon of the Mitchell rule, is that the failure to cooperate should not be held against you when determining facts about the crime that bear on the severity of the sentence. [00:19:19] Speaker 03: Now, the problem I have though is that [00:19:23] Speaker 03: We've also said, and courts made clear that, you know, the minor role in safety valve reductions are permitted and they require, you know, information cooperation. [00:19:33] Speaker 03: And then in this particular case, I see defense counsel below essentially asking the court to speak directly to Mr. Navarro to explain to Mr. Navarro that what the implications would be of not availing himself of those options. [00:19:51] Speaker 03: It just seems to me now to then say on appeal that the judge's response to those arguments and invitation from defense counsel to talk about this is a bit of a, it seems to me it takes the district court's responses to arguments and requests from defense counsel out of context. [00:20:16] Speaker 02: I don't recall a specific request. [00:20:18] Speaker 03: Well, I'm reading it right here on ER 12. [00:20:24] Speaker 03: The judge says, as a result of the actions he's taking, which he has the right to do, he's going to double his sentence. [00:20:32] Speaker 03: And counsel says, I understand that. [00:20:34] Speaker 03: I really appreciate the court making those comments at the outset, perhaps hearing it directly from you, as opposed to... And then the judge goes on to... [00:20:44] Speaker 03: speak directly to Mr. Navarro. [00:20:46] Speaker 03: I see, Your Honor. [00:20:47] Speaker 02: Well, even if the court was just trying to get the defendant to Mr. Navarro to get those guidelines reductions, even still, you can tell from his repeated references to the number of offenses, how many times he did it, that [00:21:06] Speaker 02: talking about other importers who did it more than once and saying that might be his case, that this continued to occupy the court's mind and influence the way that he viewed the 3553A factors. [00:21:17] Speaker 02: I see I'm out of time. [00:21:18] Speaker 00: All right, thank you very much. [00:21:19] Speaker 00: U.S. [00:21:20] Speaker 00: versus Navarro will be submitted. [00:21:22] Speaker 00: We previously submitted U.S. [00:21:24] Speaker 00: versus Egan's, and we'll take up U.S. [00:21:26] Speaker 00: versus Yepes.