[00:00:01] Speaker 04:
And Ms.

[00:00:01] Speaker 04:
Young, you'll start.

[00:00:05] Speaker 04:
Morning, Your Honors.

[00:00:06] Speaker 04:
Catherine Young from the Federal Public Defender's Office for the Appellant, David Bunavac.

[00:00:11] Speaker 04:
I would like to reserve about three minutes of my time, and I will watch the clock.

[00:00:15] Speaker 04:
Mr. Bunavac pled guilty to securities and wire fraud.

[00:00:18] Speaker 04:
He pled guilty within one month of appointment of counsel.

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He agreed to an extensive factual basis.

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He did not contest the amount of restitution.

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His plea agreement included calculations that would generate

[00:00:39] Speaker 04:
in the plea agreement.

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in 1993 when he used a false ID to apply for a store credit card.

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Both of them were misdemeanors.

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They did not count in the criminal history calculation because they were so stale.

[00:01:26] Speaker 04:
He also had a state court conviction for sale of securities in 2017, which he was sentenced to probation with 360 days in jail.

[00:01:36] Speaker 04:
That was considered relevant conduct by the probation officer and ultimately determined to be relevant conduct by the court.

[00:01:43] Speaker 04:
It did not generate any criminal history points.

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nonetheless departed upward even though he only had two misdemeanors that were 30 years old at the time of sensing.

[00:01:55] Speaker 03:
I think that there isn't but

[00:02:16] Speaker 04:
other criminal history as defined in the sentencing guidelines.

[00:02:20] Speaker 04:
And with respect to the upward departure, she was bound by the language of the sentencing guidelines.

[00:02:25] Speaker 00:
I just ask you, you're calling this a departure, but why is that a variance?

[00:02:31] Speaker 04:
She granted one departure and one variance, Your Honor.

[00:02:33] Speaker 04:
She was explicit into what she was doing.

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She departed upward one category in criminal history.

[00:02:38] Speaker 04:
That's under the language of the sentencing guidelines, although we contend it's barred by the sentencing guidelines.

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And at this point, I'm addressing the departure.

[00:02:57] Speaker 01:
If the recent California conviction was not considered part of the relevant conduct, wouldn't it have equaled three criminal history category points, create three criminal points?

[00:03:08] Speaker 01:
No.

[00:03:09] Speaker 01:
Then it would have allowed him, then he would have been in criminal category two.

[00:03:13] Speaker 04:
No, Your Honor, because after this sentencing, this was in 2022, but in 2023, the Sentencing Commission retroactively deleted what are called

[00:03:33] Speaker 04:
It would have, but had she done that, Mr. Bunavach could then have gone after November 1, 2023, he could have gone in and had those deleted, because it was retroactively deleted.

[00:03:43] Speaker 04:
And there's a procedure in the sentencing guidelines for removing those points if they were crafted.

[00:04:04] Speaker 01:
So it seems exactly what that variance is for, or that departure is for.

[00:04:09] Speaker 04:
Well, I think under the language of the guidelines, it can't be because the guidelines specify it has to be conduct not part of the incident offense or relevant conduct.

[00:04:18] Speaker 04:
So in this case, it could not have been granted under the terms of the guidelines.

[00:04:33] Speaker 03:
guidelines were working in this case, and particularly that in her judgment, it wasn't accounting for the seriousness of his conduct shown between the state conviction and then the conviction that was at issue in this case.

[00:04:47] Speaker 03:
And given that we review for substantive reasonableness at this point, the guidelines are not mandatory.

[00:04:53] Speaker 03:
How do you get around that the district court is basically just telling us for all kinds of factual reasons that she just doesn't think that the calculation under the guidelines is enough for the

[00:05:08] Speaker 04:
the guidelines and the court can review the language of the guidelines.

[00:05:10] Speaker 04:
When you move on to the 355A factors, Your Honor is correct, then it's reviewed for substantive reasonableness, and when I would argue that it's not because it's contrary to the terms of the guidelines, I'm going to disagree with you on that point and conclude that it was substantively reasonable what the district court did in this case, then what does that do to the argument that you're making about the criminal history?

[00:05:31] Speaker 04:
I think it's separate, because I think, first of all, the guidelines have to be correctly calculated.

[00:05:36] Speaker 04:
I mean, the guidelines this Court has said are the benchmark, the initial benchmark, the starting point, the touchdown, the load start, they have to be correctly calculated.

[00:05:44] Speaker 04:
So you start from that point, and they have to be correctly calculated, which we argue the District Court didn't do.

[00:05:49] Speaker 04:
And then you move on to the substantive reasonable.

[00:06:18] Speaker 01:
for relevant conduct under what basis are you saying that?

[00:06:22] Speaker 04:
I'm saying under 4A1.2A1 criminal history points are

[00:06:47] Speaker 04:
She said that the issue is similar to 4A1.3, but that refers to an upward departure where the defendant is pending trial or sentencing on another charge.

[00:06:58] Speaker 04:
So it's starting on another charge, not the incident offense or relevant conduct.

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reasonableness of the sentence.

[00:07:28] Speaker 00:
Right.

[00:07:29] Speaker 00:
So in other words, you're asking us to maybe have it go back for really kind of a ministerial correction of the record?

[00:07:37] Speaker 04:
Well, I don't think that's correct because I think this Court has emphasized the sentencing guidelines of the starting point, the benchmark.

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They have to be kept in mind.

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They have a substantial role in the determination of what's a reasonable sentence.

[00:07:48] Speaker 04:
That's where you start.

[00:07:50] Speaker 04:
So if you're starting for a lower point, you should end up at a lower point, would be my argument.

[00:08:07] Speaker 03:
Hey, Mr. Schwab.

[00:08:58] Speaker 02:
your court gave rational and meaningful consideration to the Section 3553A factors, and that's precisely what occurred here.

[00:09:08] Speaker 02:
I'll just note one other thing is that substantive reasonableness in the demanding standard that it imposes, it's a neutral standard.

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It's one that probably in the majority of cases is actually beneficial to defendants because it's more frequent that there's a downward variance than there's an upward variance, as was the case here.

[00:09:26] Speaker 02:
I think it's improper.

[00:09:46] Speaker 02:
sentencing guidelines are now analyzed holistically as part of that substantive reasonableness analysis.

[00:09:53] Speaker 02:
So fundamentally, this court is right in its questions that the analysis, whether or not the exact verbiage of the upward departure in the sentencing guidelines, whether or not this court agrees that the district court appropriately imposes as a departure was correct, that doesn't matter.

[00:10:12] Speaker 02:
What matters is whether it provided ample

[00:10:17] Speaker 01:
It's still important to know.

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not relying on the fact of the prior conviction.

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Rather, it was relying on the fact that this defendant committed the incident offense while on probation.

[00:10:52] Speaker 02:
In fact, escalated the severity of the conduct while on probation in the state offense and analogizing that to what is spelled out

[00:11:16] Speaker 02:
In fact, escalated that crime even while serving that same sentence.

[00:11:20] Speaker 02:
You're saying the estate court condition was not the basis for the upward departure?

[00:11:23] Speaker 01:
Correct.

[00:11:25] Speaker 02:
The fact that he was instead relying on... Wasn't there also an upward obstruction departure?

[00:11:33] Speaker ?:
There was a variance granted based on the fact that the court determined,

[00:12:00] Speaker 02:
whether this defendant is a

[00:12:41] Speaker 02:
Again, it's just...

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for committing the incident offense while serving a criminal justice sentence.

[00:13:14] Speaker 02:
In this case, the fact that he was on probation and continuing to offend, that shows that he's a greater risk of recidivism than someone who had a perfectly sterling record and a really thin slice.

[00:13:24] Speaker 01:
You're saying the two points don't exactly count, but it's the conduct of the two points.

[00:13:41] Speaker 02:
I agree that as a factual matter, if the underlying conviction was not going to

[00:14:39] Speaker 02:
of recidivism going forward.

[00:14:43] Speaker 02:
Broadly speaking, I do want to note, you know, some time was spent in both the briefs about whether the district court appropriately explained its sentence.

[00:14:52] Speaker 02:
I'll note that the bulk of the defendant's claims both during the sentencing hearing itself and in his papers were arguments about his health, and the district court explicitly referenced that and explained why it wasn't compelling to her.

[00:15:08] Speaker 02:
But I think it's something

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and after his time in prison.

[00:15:49] Speaker 02:
I'd interpret that not even as a statement that these are mitigating factors, but more a basis to justify what ultimately turned into a recommendation for RDAP, which is a program for people who have substance abuse issues.

[00:16:02] Speaker 02:
And ultimately, a recommendation for RDAP was actually included as part of the sentence in this case.

[00:16:07] Speaker 02:
So this wasn't some sort of separate mitigating argument that was presented to the district court that this court failed to grapple with.

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Rather, the cheap argument, which was one

[00:16:28] Speaker 02:
that are equipped with dealing with them.

[00:16:32] Speaker 02:
I'll just note as one final thing, I know that wasn't really brought up much before during my friend's argument, but with respect to the victim impact statements, I'll just note that the CVRA is distinct not just in its function, but its purpose from what role victim statements play

[00:16:59] Speaker 02:
but rather it's about the defendant's right to specifically confront or excuse me the victim's right

[00:17:41] Speaker 03:
questions I'd submit.

[00:17:52] Speaker 04:
Thank you.

[00:17:54] Speaker 04:
First of all I wanted to address the issue of whether or not this court should look at downward departures and look at them separately and we decided the Mohammed

[00:18:07] Speaker 04:
and that's because the

[00:18:34] Speaker 03:
That's what I'm struggling with.

[00:18:35] Speaker 03:
It seems like our role in the Ninth Circuit is a unitary review of sentences for substantive reasonableness.

[00:18:43] Speaker 03:
And so, like I said, I think that you've got some logical appeal to some of the technical arguments that you're making, but I'm not sure how we get to them given our standard of review post-booker.

[00:18:54] Speaker 04:
Okay, well, I would argue that if the guidelines are important, and this Court has emphasized that the Court has to correctly calculate the guidelines range, then it has to be reviewable at some

[00:19:09] Speaker 04:
And in fact, as discussed in our brief, he got about five or six years for having repaid investors with fraudulent funds, which was alleged.

[00:19:18] Speaker 04:
And if he had actually gone to jail instead of repaying the investors for the restitution, he would have only served about six months.

[00:19:26] Speaker 04:
So I would argue that's really a reasonable and excessive penalty.

[00:19:41] Speaker 04:
about heart failure