[00:00:05] Speaker 04:
Good morning.

[00:00:06] Speaker 04:
And it's a pleasure to sit here in Arizona, in Phoenix.

[00:00:12] Speaker 04:
Some of you know we don't have as many arguments here.

[00:00:17] Speaker 04:
We're having more.

[00:00:18] Speaker 04:
The Ninth Circuit is having more arguments here.

[00:00:20] Speaker 04:
And I'm just delighted to be able to sit and preside over today's panel and welcome all of you to the Sandra Day O'Connor Courthouse and this special proceedings courtroom, which is just beautiful.

[00:00:32] Speaker 04:
And it's a pleasure.

[00:00:35] Speaker 04:
to have Judge Michael Hawkins on this panel, and we're both so happy to welcome our newest colleague to the Ninth Circuit Court of Appeals here today.

[00:00:46] Speaker 04:
Would you like to introduce yourself, Judge Johnstone?

[00:00:50] Speaker 00:
I'm Anthony Johnstone, and I'm coming from Missoula, Montana, and very happy to be here back in Phoenix sitting with the Chief and Judge Hawkins.

[00:01:00] Speaker 04:
So then just comparing the weather to Missoula, Montana and Phoenix, we told them it's normally a little bit more sunshine, but maybe you all will bring some sunshine to the arguments today here, so.

[00:01:14] Speaker 04:
It's pleasure.

[00:01:15] Speaker 04:
This is the time set for six cases.

[00:01:18] Speaker 04:
Three have been submitted.

[00:01:20] Speaker 04:
The first is an oral argument, and it is the Candelizet Ortega versus United States of America.

[00:01:30] Speaker 04:
And if the parties are ready to proceed, you may please come forward.

[00:01:39] Speaker 03:
Good morning.

[00:01:40] Speaker 03:
It is indeed a pleasure to have just driven up the road from Tucson rather than to get on a plane to argue elsewhere in the circuit.

[00:01:50] Speaker 03:
Good morning, and may it please the court and counsel.

[00:01:53] Speaker 03:
My name is Amy Krauss.

[00:01:54] Speaker 03:
I represent Candid Lizette Ortega, and I would like to reserve two minutes of my time for rebuttal.

[00:02:02] Speaker 03:
Candy is serving a 10-year sentence for drug trafficking because the district court judge found that she did not qualify for the safety valve relief from the mandatory minimum sentence.

[00:02:13] Speaker 03:
We know that the district court judge reached a legal conclusion that Candy's proffer was not truthful or complete.

[00:02:22] Speaker 03:
But what we don't know is the factual basis for that decision.

[00:02:27] Speaker 02:
Didn't he rely upon the pre-sentence report

[00:02:30] Speaker 03:
He did, Your Honor.

[00:02:31] Speaker 02:
Wasn't there factual information in the PSR?

[00:02:36] Speaker 03:
There was factual information in the PSR.

[00:02:38] Speaker 02:
Which was revealed to your side of the case before the judge relied on it?

[00:02:45] Speaker 03:
Indeed.

[00:02:45] Speaker 03:
There were at least five filings by the party.

[00:02:48] Speaker 02:
And your client had the opportunity to correct what was in the PSR?

[00:02:52] Speaker 02:
Factually.

[00:02:53] Speaker 03:
Your Honor, there was a factual dispute that existed up until the moment that the sentence was pronounced in this case.

[00:03:00] Speaker 03:
And the nature of the dispute, the facts were vast.

[00:03:05] Speaker 03:
They covered many different topics, and they were unresolved up until the time of sentencing.

[00:03:10] Speaker 03:
When the district court judge imposed the sentence, he made only broad conclusory comments.

[00:03:16] Speaker 03:
He said, for example,

[00:03:18] Speaker 03:
that Candy wasn't willing to provide the government with all the information that she knew, that she portrayed herself as a victim.

[00:03:26] Speaker 03:
He said the record is replete with evidence that she knew more than she was telling the government, and he also found that the record is ample.

[00:03:35] Speaker 03:
But the court did not identify any part of the record that supported these conclusions.

[00:03:40] Speaker 00:
So what efforts did you make or your client make to correct

[00:03:47] Speaker 00:
any discrepancies you saw on the record up until the final pronouncement of the sentence.

[00:03:52] Speaker 03:
Defense counsel filed objections to the pre-sentence report that challenged the factual assertions that were made therein.

[00:04:01] Speaker 03:
There was a sentencing memorandum.

[00:04:04] Speaker 03:
There was arguments of counsel.

[00:04:06] Speaker 03:
But as I said, up until the very moment that the sentence was pronounced, it was not clear what the judge was going to find or on what basis.

[00:04:16] Speaker 03:
And as this court knows, the requirement to provide a statement of reasons is well established.

[00:04:22] Speaker 03:
It's in statute 18 USC 3553C.

[00:04:28] Speaker 03:
It's in federal rule of criminal procedure 32.

[00:04:31] Speaker 03:
And the case law is very clear that significant procedural error occurs when the district court fails to adequately explain its sentencing decision.

[00:04:39] Speaker 00:
What's missing from the decision?

[00:04:40] Speaker 00:
What would you add?

[00:04:42] Speaker 03:
Facts.

[00:04:43] Speaker 00:
Which facts?

[00:04:43] Speaker 03:
Any facts.

[00:04:45] Speaker 03:
There were none.

[00:04:46] Speaker 03:
Saying that the record is ample or the record is incomplete is indistinguishable.

[00:04:52] Speaker 03:
from other cases in which this court found that the sentencing decision was inadequately explained.

[00:04:58] Speaker 02:
Isn't it correct that in those cases, the sentencing judge did not rely on the PSR?

[00:05:06] Speaker 03:
I don't think that's true as to all of the cases, Your Honor.

[00:05:09] Speaker 02:
And the problem is... What's your best case in which a sentencing judge did exactly what Judge Hinderaker did here, and that is refer to the PSR?

[00:05:22] Speaker 03:
The judge here did not just refer to the PSR, Your Honor, and that's part of the problem.

[00:05:28] Speaker 03:
There were five different memoranda that were filed.

[00:05:31] Speaker 03:
And if you have to look at the sentencing record below, which obviously you do, I think what you come up with is saying,

[00:05:41] Speaker 03:
We're going to guess at what the district court judge was thinking.

[00:05:45] Speaker 03:
And in Rangel Guzman, this court declined to guess what the district court judge was thinking.

[00:05:50] Speaker 03:
And the reason you would have to do that here is I would pose these questions.

[00:05:54] Speaker 03:
So for example, which of the areas of dispute did the district court find that Candy was untruthful about?

[00:06:01] Speaker 03:
Which of the areas of dispute did the district court find

[00:06:04] Speaker 03:
that her proffer was incomplete about.

[00:06:07] Speaker 03:
Did the district court judge agree with some?

[00:06:09] Speaker 02:
Was your client unaware that it was the position of the United States government that she had not been completely truthful in her proffer?

[00:06:20] Speaker 02:
It is, by the way, her burden to establish eligibility for the safety valve relief, correct?

[00:06:27] Speaker 03:
Absolutely.

[00:06:28] Speaker 03:
That is correct.

[00:06:29] Speaker 02:
And my point, Your Honor, is... So she was unaware that the government believed she was not being truthful about the vehicle she drove down to Mexico or came back with?

[00:06:39] Speaker 03:
No, of course she had to be aware of that because the parties were debating that very fact.

[00:06:43] Speaker 03:
even at the sentencing hearing.

[00:06:45] Speaker 02:
Was she also aware that the government believed she had not been truthful about the sources of her income?

[00:06:52] Speaker 03:
Again, Your Honor, she must have been aware of that, yes, of course.

[00:06:55] Speaker 03:
But that's not the problem that I'm identifying here.

[00:06:59] Speaker 03:
And I understand, I believe I understand that the court's concerned.

[00:07:03] Speaker 03:
I am trying to address it.

[00:07:04] Speaker 03:
The more we talk about the nature of the factual disputes and whether her evidence and the government's evidence, which was more compelling, the more I think supports the position that the district court judge needed to make a statement of reasons, a more explicit finding of facts.

[00:07:23] Speaker 03:
And that's because as you sit here now, how is this court to

[00:07:28] Speaker 03:
execute its obligation to meaningfully review the appellate record based on what the judge said.

[00:07:34] Speaker 03:
There was a lot of evidence in the record, but we don't know what the district court judge found compelling.

[00:07:41] Speaker 03:
And that's the problem.

[00:07:42] Speaker 03:
And that's why this court should remand this case so that those questions that you're asking Judge Hawkins can be answered.

[00:07:49] Speaker 03:
in the record itself.

[00:07:51] Speaker 03:
Maybe the judge found that she was untruthful about the number of trips she took to Mexico, and maybe that's a valid basis to deny safety of our relief, but we don't know.

[00:08:02] Speaker 03:
That's the same can be said about text messages that were in dispute, the meaning and interpretation of text messages.

[00:08:09] Speaker 03:
There was her employment history and what her income was in the summer of 2018 when she took this trip to Mexico.

[00:08:19] Speaker 03:
And so the question that I would have is how this court could speculate on the strength of that evidence, but that would be inappropriate and that would be unfair to Candy in terms of meaningful appellate review.

[00:08:32] Speaker 03:
We don't know if the district court found one part of the government's evidence compelling and another not.

[00:08:40] Speaker 03:
We don't know if the district court made a credibility determination.

[00:08:43] Speaker 03:
against Candy.

[00:08:45] Speaker 03:
And so without knowing those facts, you would have to do exactly what the court said in Rangel Guzman it would not do, which is to guess what the district court was thinking.

[00:08:56] Speaker 04:
But doesn't the district court's decision support a reasonable inference here that Ms.

[00:09:02] Speaker 04:
Ortega's proffer was at least, very least incomplete or not truthful?

[00:09:09] Speaker 03:
Well, as I said, Judge, the problem here is that you don't have de novo review.

[00:09:13] Speaker 03:
And we don't know if the district court was thinking her proffer.

[00:09:18] Speaker 03:
We don't know on the basis on which it found that her proffer was incomplete.

[00:09:24] Speaker 03:
For sure, the judge said, and he was tortured by this.

[00:09:28] Speaker 03:
You can read this.

[00:09:29] Speaker 03:
And it's very clear from the transcript.

[00:09:30] Speaker 03:
He was very upset.

[00:09:32] Speaker 04:
Well, it seems like the frustration was

[00:09:36] Speaker 04:
at least from my review and correct me is that, uh, I guess there was some discussion whether or not she could give more information or be more forthcoming on what happened in terms of admitting some of the her conduct.

[00:09:54] Speaker 04:
Uh, and the judge gave her extra time to talk and try to work that out.

[00:10:00] Speaker 04:
And ultimately it seems like

[00:10:03] Speaker 04:
It's reasonably time for reasonable to infer that he was not satisfied.

[00:10:08] Speaker 04:
And it said as much that she could have been more truthful and she wasn't.

[00:10:13] Speaker 03:
I agree with that.

[00:10:15] Speaker 03:
A hundred percent.

[00:10:16] Speaker 03:
Okay.

[00:10:16] Speaker 03:
He was frustrated.

[00:10:17] Speaker 03:
No.

[00:10:17] Speaker 03:
Well, he was saying she was untruthful or that her proffer, she wasn't self safety valve eligible because he found her truck, her proffer to be untruthful or incomplete is a legal conclusion.

[00:10:30] Speaker 03:
That's, but we don't have the factual basis for this conclusion that would enable this court to exercise its appellate review of whether that decision making was, whether the district court judge used his discretion appropriately.

[00:10:44] Speaker 04:
And that's the problem that- Do you want to reserve the rest of your time?

[00:10:47] Speaker 04:
I do.

[00:10:47] Speaker 03:
Okay.

[00:10:48] Speaker 03:
Thank you so much.

[00:10:57] Speaker 01:
Good morning, Your Honors.

[00:10:58] Speaker 01:
Terry Criss for the government.

[00:10:59] Speaker 01:
May it please the court?

[00:11:00] Speaker 01:
Whether a proffer is true or complete is not a legal conclusion, it's a factual conclusion reviewed by this court for clear error.

[00:11:08] Speaker 01:
And the district court did not clearly err in making that determination in this case, nor did the court plainly err in the way it explained the sentence or the opportunity that it gave the defendant to support or amend her proffer.

[00:11:21] Speaker 01:
So the district court here said,

[00:11:24] Speaker 01:
which prong of the safety-valued statute it had issue with, which was prong five, and then made the finding that the proffer was untrue and incomplete because the defendant tried to minimize her role in the offense, falsely casted herself as a victim, and knew more information than she had disclosed to the government.

[00:11:41] Speaker 01:
Those are factual findings based on credibility determinations, and those are things that this court defers to the district court when making findings.

[00:11:50] Speaker 00:
Mr. Christ, how would you help us draw the line between your assertion of

[00:11:54] Speaker 00:
failure to preserve the objection to the judge's specificity with respect to the factual grounds for the denial of safety relief.

[00:12:02] Speaker 00:
And then the question about the findings themselves.

[00:12:08] Speaker 00:
In other words, what are we reviewing?

[00:12:09] Speaker 00:
What are you contending we should review for plain error and which for clear error?

[00:12:14] Speaker 01:
Essentially, the sufficiency of the evidence would be the clear error standard.

[00:12:19] Speaker 01:
And whether the judge made an adequate explanation on the record would be a plain error issue because the defendant could have objected and said, Your Honor, can we please have further elaboration on your reasons?

[00:12:32] Speaker 01:
And they did not do so.

[00:12:33] Speaker 01:
They didn't give the district court that opportunity.

[00:12:35] Speaker 02:
It would be easier to do for us if the sentencing judge had detailed the factual problems with the inadequacy of her application for safety valve relief.

[00:12:48] Speaker 02:
Right?

[00:12:50] Speaker 02:
Yes, it might have been a little easier, but how much effort would it have taken to say it looks like you weren't truthful about the car you drove down there or the car you drove back or your sources of income?

[00:13:05] Speaker 02:
He didn't do that, did he?

[00:13:06] Speaker 01:
No, he didn't, but he wasn't required to under the law.

[00:13:10] Speaker 01:
And under the law, all he had to do was provide an explanation sufficient for appellate review.

[00:13:15] Speaker 01:
This court affirms for any grounds supported by the record anyway, and in a sufficiency of the evidence context, the question is just whether there was enough evidence to support the district court's conclusion, and that would have been on the clear-earth standard.

[00:13:28] Speaker 01:
So even if the district court had given some reasons on appeal, we could argue the entirety of the record to support that finding anyway.

[00:13:35] Speaker 01:
So further elaboration wouldn't really facilitate appellate review that much as it is.

[00:13:42] Speaker 02:
There are safety valve relief cases which the Ninth Circuit has sent back for re-sentencing where the district judge did not rely upon the PSR, correct?

[00:13:55] Speaker 02:
You're aware of those cases.

[00:13:57] Speaker 01:
Yes, I believe that's correct.

[00:13:59] Speaker 01:
I would note one difference between the cases cited by the defense in this case, where this court sent the cases back, was the court essentially didn't even tell the parties which prong of safety valve the defendant didn't meet eligibility for.

[00:14:14] Speaker 01:
Here, the court's very clear, it's the proffer that's the problem.

[00:14:17] Speaker 01:
The court in

[00:14:18] Speaker 01:
Some of those cases basically said, I just find no safety valve eligibility without any elaboration.

[00:14:24] Speaker 01:
Court here says a lot more than that.

[00:14:26] Speaker 01:
And we know that we're focusing on the truthfulness and completeness of the proffer and the court's factual finding that the proffer is untrue and incomplete.

[00:14:36] Speaker 01:
And that's really all the court needed to do.

[00:14:38] Speaker 01:
In the Salazar case cited by the defense in their apply brief, the court notes that a finding of untruthfulness is all the court really has to do.

[00:14:46] Speaker 01:
So, anything beyond that is basically icing on the cake.

[00:14:50] Speaker 01:
It's helpful, but it's not legally required, and it's not a basis for reversal.

[00:14:54] Speaker 02:
This defendant have a prior record?

[00:14:57] Speaker 02:
Not to my knowledge.

[00:14:59] Speaker 02:
Reading the transcript of the sentencing, one gets the impression that the defendant was surprised by the outcome.

[00:15:10] Speaker 02:
Is that correct?

[00:15:11] Speaker 02:
She says that... Am I correct in reading the transcript that way?

[00:15:15] Speaker 01:
At sentencing, she does express surprise.

[00:15:20] Speaker 02:
And would that suggest she wasn't adequately prepared for sentencing?

[00:15:25] Speaker 01:
No.

[00:15:26] Speaker 01:
The defense counsel says at sentencing that they had a meeting with the government to discuss the proffer.

[00:15:33] Speaker 01:
And it's worth noting that earlier, at the first sentencing hearing, the court said that it was going to continue sentencing for 30 days to give her a chance to amend her proffer.

[00:15:43] Speaker 01:
So the court's decision to continue

[00:15:45] Speaker 01:
wanting her to amend the proffer, plus the meeting that the government had with defense counsel would have given her the notice she needs.

[00:15:54] Speaker 01:
I don't know why she expressed a surprise at sentencing, but she was given adequate notice that there was something wrong with her proffer, and she had adequate opportunity to defend that proffer or to amend it.

[00:16:05] Speaker 01:
Her counsel makes arguments before the sentencing, presents evidence at the sentencing, and makes arguments.

[00:16:11] Speaker 01:
And then at allocution, the district court gives her an opportunity to say anything she wants regarding the sentence.

[00:16:16] Speaker 01:
And she did not take the court up on that offer.

[00:16:18] Speaker 02:
Who represented her at sentencing?

[00:16:22] Speaker 01:
You know, the counsel's name escapes me, I'm afraid.

[00:16:25] Speaker 01:
But it's certainly on the record.

[00:16:28] Speaker 01:
OK.

[00:16:29] Speaker 01:
So the court gives the adequate opportunity.

[00:16:33] Speaker 02:
It wasn't Ms.

[00:16:33] Speaker 02:
Kraus, correct?

[00:16:34] Speaker 02:
No.

[00:16:37] Speaker 01:
So the court gives an adequate opportunity.

[00:16:39] Speaker 01:
The court gives an explanation.

[00:16:41] Speaker 01:
And ultimately, the decision was not clearly erroneous.

[00:16:45] Speaker 04:
What about the request or the alleged request for an evidentiary hearing?

[00:16:50] Speaker 01:
I don't read any such request in the record.

[00:16:53] Speaker 01:
The defense in the objection to the pre-sentence report makes a passing reference that defendants can testify.

[00:17:00] Speaker 01:
And at sentencing, defense counsel says that the defendant could say things that could help her

[00:17:06] Speaker 01:
proffers seem more truthful, but they never explicitly request an evidentiary hearing.

[00:17:11] Speaker 01:
And right after making that reference to the defendant testifying, she gets up and speaks at allocution.

[00:17:16] Speaker 01:
And there's no objection that we want a more formal evidentiary hearing.

[00:17:19] Speaker 01:
This isn't good enough.

[00:17:21] Speaker 01:
Evidentiary hearings are not required by right at sentencing.

[00:17:25] Speaker 01:
And all the district court needs to do is provide a reasonable opportunity for the defendant to present evidence.

[00:17:30] Speaker 01:
And that reasonable opportunity certainly exists in this case.

[00:17:34] Speaker 04:
So we review that for plain air.

[00:17:36] Speaker 01:
Yes, because there was no objection.

[00:17:38] Speaker 01:
It was not preserved.

[00:17:41] Speaker 00:
Is there anything about, I guess the district court's problem with the proffer rests more on omissions rather than positive untruths.

[00:17:56] Speaker 00:
And so it does make it a little difficult to assess this because there's an infinite number of things that are excluded from the proffer.

[00:18:05] Speaker 00:
and without some detail about which particular aspects of that proffer are creating the problem, can you see that that does put Ms.

[00:18:16] Speaker 00:
Ortega in a difficult position to counter that?

[00:18:21] Speaker 01:
Well, I respectfully disagree that the court didn't find positive falsehoods.

[00:18:24] Speaker 01:
The court says that the defendant tried to cast herself as a victim

[00:18:31] Speaker 01:
And that she had more knowledge than she said she did.

[00:18:34] Speaker 01:
And those are untruths.

[00:18:36] Speaker 01:
Frankly, the entire thrust of the proffer was that she had not made an agreement to transport these drugs, notwithstanding pleading guilty to conspiracy.

[00:18:46] Speaker 01:
And that it was the passenger, Cuevas, who had essentially masterminded the whole thing.

[00:18:50] Speaker 01:
And frankly, none of that's true.

[00:18:53] Speaker 01:
And there's lots of evidence in the record to contradict that.

[00:18:56] Speaker 01:
from Cuevas' own text messages expressing dissatisfaction with being in Mexico with, quote, Candy's friends and the drugs and cartels, from the fact that it's just facially implausible that a drug trafficking organization would load $200,000 of product into a car without letting the driver know or having any plan to recover those drugs in the United States.

[00:19:17] Speaker 01:
She admits in the proffer that Cuevas doesn't know where she lives in the United States with her mother, so how are the cartels going to get those drugs back?

[00:19:24] Speaker 00:
So you think this turns on

[00:19:26] Speaker 00:
much more than just how'd you buy the car?

[00:19:30] Speaker 01:
The entire proffer is patently untrue, frankly.

[00:19:33] Speaker 01:
And so it's not just omissions.

[00:19:35] Speaker 01:
It's affirmative false statements.

[00:19:37] Speaker 01:
It's the fact that she has no credibility because she's told three different versions of the story.

[00:19:42] Speaker 01:
And while it's true that prior false statements do not automatically disqualify a proffer, they are certainly relevant to assessing credibility.

[00:19:49] Speaker 01:
The district court made a credibility finding here.

[00:19:51] Speaker 01:
The court said she was untruthful.

[00:19:53] Speaker 01:
And that is exactly the kind of finding that this court would defer to because it's the district court in the better position to assess credibility.

[00:20:01] Speaker 01:
So no, I don't think this is just a gotcha over one misstrip to Mexico.

[00:20:06] Speaker 01:
It's a broader disbelief in the entire thrust of the proffer

[00:20:10] Speaker 01:
And that is supported by the facial implausibility of the proffer, by the prior false statements of the defendant, internal contradictions in the proffer, external contradictions to other evidence, and then omissions of a few things that the government does know that the defense should have known, such as the phone number of Eli.

[00:20:31] Speaker 01:
She says in the proffer, Eli gave me his phone number.

[00:20:33] Speaker 01:
Well, we don't have it.

[00:20:35] Speaker 01:
What was the plan to get the drugs back afterwards?

[00:20:37] Speaker 01:
There are lots of things about her story she doesn't give.

[00:20:40] Speaker 01:
And finally, I would say that even her explanation for why she supposedly lied before doesn't make sense because the photo of her ID card wouldn't have had her address in it because she lives with her mother now and she says nobody knows where that is.

[00:20:53] Speaker 01:
So she's provided no, basically every piece of this proffer is untrue and inconsistent.

[00:21:00] Speaker 01:
If the court has no further questions, we would respectfully request and affirm the sentence.

[00:21:03] Speaker 01:
Thank you.

[00:21:04] Speaker 01:
Thank you, Mr. Chris.

[00:21:10] Speaker 03:
Thank you and very briefly Mr. Chris makes the point when he argues that list of evidence that was presented to the district court that showed that candy was untruthful.

[00:21:23] Speaker 03:
What it shows you is there was a lot of evidence before the court.

[00:21:27] Speaker 03:
It was contested.

[00:21:28] Speaker 03:
Every aspect of that evidence was contested, and the district court didn't resolve the factual dispute at all.

[00:21:35] Speaker 00:
Ms.

[00:21:35] Speaker 00:
Krause, could you speak to the plain error question and the scope of whatever objections might be preserved before us?

[00:21:42] Speaker 03:
Sure.

[00:21:43] Speaker 03:
This court's review is for plain error because defense counsel who, she was represented by the Federal Public Defender's Office in Tucson, by the way.

[00:21:53] Speaker 03:
Sorry, is that me?

[00:22:08] Speaker 04:
Thank you.

[00:22:11] Speaker 04:
Try it now.

[00:22:12] Speaker 04:
Go ahead.

[00:22:13] Speaker 03:
This court's review is for plain error.

[00:22:15] Speaker 03:
But the plain error decision goes to is the district court's fact finding.

[00:22:24] Speaker 03:
Safety valve statute was enacted back in 1994.

[00:22:27] Speaker 03:
In 1996,

[00:22:29] Speaker 03:
when it was still kind of being worked out in the courts and interpreted in the courts, this court decided Real Hernandez.

[00:22:35] Speaker 03:
And in that case, the court said, and has held ever since, that in the safety valve context, the district court must give reasons for accepting or rejecting a safety valve proffer.

[00:22:47] Speaker 03:
That didn't happen in this case.

[00:22:48] Speaker 03:
So the plain error review is to that error, whether the district court

[00:22:57] Speaker 03:
set its statement of reasons set forth and made an adequate record that would enable this court to review its decision.

[00:23:04] Speaker 03:
That error is plain for the reasons that I described before.

[00:23:08] Speaker 03:
Having to make a statement of reasons and adequately explain the record is in statute.

[00:23:13] Speaker 03:
It's in the rules of criminal procedure.

[00:23:15] Speaker 03:
It's in the case law.

[00:23:16] Speaker 03:
It's procedural error not to adequately explain the sentencing decision.

[00:23:21] Speaker 03:
It was substantial.

[00:23:22] Speaker 03:
It affected her rights, and we know

[00:23:24] Speaker 03:
that the district court judge would not have imposed the mandatory minimum had he found that safety valve applied.

[00:23:30] Speaker 03:
And for those reasons, I would ask this court to remand this matter so that the correct record can be made and then this court can review that record appropriately.

[00:23:39] Speaker 03:
Thank you.

[00:23:39] Speaker 04:
Thank you.

[00:23:41] Speaker 04:
Ms.

[00:23:41] Speaker 04:
Krauss, Mr. Kriss, thank you very much.

[00:23:43] Speaker 04:
The case of Candy Lizette Ortega versus United States of America is now submitted.