[00:00:00] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:02] Speaker 04:
Alexis Klein for the United States.

[00:00:05] Speaker 04:
I would ask to please reserve four minutes for rebuttal and I will plan to monitor my time.

[00:00:12] Speaker 04:
This court recently reiterated what it called a long recognized basic rule in Colosso.

[00:00:20] Speaker 04:
That is that a defendant charged with a drug crime need not know the exact nature of the substance with which he was dealing.

[00:00:29] Speaker 00:
Can you turn to me and explain to me this?

[00:00:33] Speaker 00:
Because what we're trying to do is get to what an explicit admission is, correct?

[00:00:38] Speaker 04:
Yes.

[00:00:39] Speaker 00:
Okay.

[00:00:41] Speaker 00:
When I read the plea colloquy, I read the court saying, and this is a quote, the court asked, all right, so do you understand that those are the elements that the government would have to prove if you went to trial?

[00:00:58] Speaker 00:
And this is what Mr. Gaston says, and I say Gaston, I'm not sure if it's Gaston or Gaston.

[00:01:06] Speaker 00:
Mr. Gaston says, yes, not that I knew it was actual, but I knew it was drugs.

[00:01:13] Speaker 00:
So what other facts are there that tells me that that is an explicit admission to the quantity?

[00:01:25] Speaker 04:
Your honor, first, I would submit that that is an accurate statement of what the law is, that all the government needed to prove beyond a reasonable doubt.

[00:01:33] Speaker 04:
And we can use the language of Thomas about an explicit admission or the other language of this court and opinions like Colosso and what needed to be established.

[00:01:41] Speaker 04:
But when you look at what the district court's opinion was, it necessarily needed to incorporate the facts from the factual basis.

[00:01:50] Speaker 04:
And that's where I would start with the court, coupled with the totality of the record about what actually happened here.

[00:01:57] Speaker 04:
We know Mr. Gaston negotiated and arranged this drug deal.

[00:02:01] Speaker 00:
No, no, no.

[00:02:04] Speaker 00:
Take me back to the question I'm asking.

[00:02:07] Speaker 00:
The question I'm asking is, what in the

[00:02:09] Speaker 00:
a plea colloquy suggests that there was an explicit admission to the quantity.

[00:02:16] Speaker 00:
I guess that's what I'm, I just want to make sure I understand what the best argument of the government is.

[00:02:23] Speaker 04:
Thank you, your honor.

[00:02:23] Speaker 04:
I would say ER 89 through 91 when there is a summary of the factual basis and also the Mr. Gaston's repeated acknowledgments at the beginning of the plea colloquy about the mandatory minimum he faced.

[00:02:42] Speaker 04:
what drug crime we were talking about and the fact that he had the opportunity to review the factual basis.

[00:02:48] Speaker 00:
So what do we do with, and I'm really just trying to understand, what do we do when we have in a plea colloquy something like the quote I just issued and then

[00:03:01] Speaker 00:
What you point to, which is when the government is giving that recitation of what the evidence is in the case, what do we do in that circumstance when there's, some would argue, conflicting statements about what he is admitting to?

[00:03:21] Speaker 00:
Whose burden is it to establish an explicit admission?

[00:03:26] Speaker 04:
Thomas says it's the government's burden.

[00:03:28] Speaker 00:
Okay, so when we have this ambiguity, what should we do in that circumstance?

[00:03:36] Speaker 04:
Well, I'd submit to the court, there's not the ambiguity that is suggested by the district court.

[00:03:43] Speaker 01:
This isn't an amount ambiguity.

[00:03:45] Speaker 01:
This is a quality, right?

[00:03:47] Speaker 01:
This is not a quantity case.

[00:03:48] Speaker 01:
This is a quality.

[00:03:49] Speaker 04:
Correct.

[00:03:49] Speaker 01:
So to get the 10 years mandatory minimum under 841B, the government's got to establish it's actual pure meth.

[00:03:55] Speaker 01:
Correct.

[00:03:55] Speaker 01:
And your position is the factual basis.

[00:03:57] Speaker 01:
Final paragraph says the lab said it was pure.

[00:04:00] Speaker 01:
The indictment says it's actual.

[00:04:02] Speaker 01:
So you've got an indictment.

[00:04:03] Speaker 01:
You've got a factual basis.

[00:04:04] Speaker 01:
Then the district court clarifies, is that what you did?

[00:04:06] Speaker 01:
He says, yes.

[00:04:07] Speaker 01:
Well, he is saying, what I did doesn't establish what the lab says.

[00:04:10] Speaker 01:
But the next sentence is the district court says,

[00:04:13] Speaker 01:
is, let me read it to you, did you hear all that?

[00:04:17] Speaker 01:
Do you other guys agree with that statement of facts?

[00:04:19] Speaker 01:
Yes, Your Honor.

[00:04:21] Speaker 01:
That's what it comes down to, right?

[00:04:22] Speaker 01:
You say that's an explicit admission.

[00:04:25] Speaker 04:
Yes.

[00:04:27] Speaker 01:
The difficulty with that, I think, is earlier when the little colloquy occurs about his state of mind, which is irrelevant to the enhancement,

[00:04:37] Speaker 01:
The government interrupts and the government says, this isn't really an issue for the plea, this is an issue for sentencing.

[00:04:45] Speaker 01:
But that's perhaps, I want to hear your thoughts, isn't that a mistake?

[00:04:50] Speaker 01:
Because it is an issue to be established by the defendant at the colloquy.

[00:04:56] Speaker 01:
Yet the government interjected and arguably lulled him.

[00:04:59] Speaker 01:
And then you've got a district court that holds two different hearings.

[00:05:02] Speaker 01:
She firsthand says, just wasn't clear enough.

[00:05:05] Speaker 01:
Isn't that what this case talk?

[00:05:08] Speaker 01:
So all of that to say, I agree when a defendant pleads guilty to a wide open 841, there's no plea agreement.

[00:05:17] Speaker 01:
The government normally has to be able to rely on a sworn admission to a factual basis.

[00:05:21] Speaker 01:
Has to.

[00:05:22] Speaker 01:
There's no other way you could get an explicit admission.

[00:05:24] Speaker 01:
They can't force the defendant to speak more.

[00:05:27] Speaker 01:
However, here, what I think the district court was discomforted by was the government had actually sort of modified that.

[00:05:34] Speaker 01:
That's my concern.

[00:05:37] Speaker 04:
Thank you, Your Honor.

[00:05:39] Speaker 04:
I think that the government's counsel certainly could have

[00:05:43] Speaker 04:
state of the elements in a more eloquent way and a better way.

[00:05:48] Speaker 04:
But I submit to this court, they weren't insufficient.

[00:05:51] Speaker 01:
But then, but I just interrupt.

[00:05:52] Speaker 01:
I mean, the government then opposes the motion to withdraw the guilty plea, which you would see in Thomas.

[00:06:00] Speaker 01:
And the court doesn't let him withdraw.

[00:06:01] Speaker 01:
You know that.

[00:06:02] Speaker 01:
And then in Thomas, the Ninth Circuit says, at least resolve it at Rule 32.

[00:06:07] Speaker 01:
But the government, even though it's objecting to the PSR, doesn't ask for a Rule 32 evidentiary determination.

[00:06:13] Speaker 01:
So three different times, there's sort of a government vacillation.

[00:06:18] Speaker 01:
And if the Ninth Circuit's saying, if you're going to use the defendant's own words to put him in jail for mandatory minimum, here, re-incarcerate him.

[00:06:25] Speaker 01:
It's just got to be done better.

[00:06:28] Speaker 01:
I think that's sort of the number of the case here.

[00:06:32] Speaker 04:
And I agree, like I started to say, the government's counsel certainly could have paraphrased the elements of the crime and mentioned Apprendi, for example, like the government's counsel does in Thomas, and explain that more explicitly.

[00:06:46] Speaker 04:
But what the defendant's response was, there's a number of ways to interpret that.

[00:06:51] Speaker 04:
One is that he was reiterating- I'm just getting rough.

[00:06:55] Speaker 01:
Don't you lose?

[00:06:56] Speaker 01:
I'm not saying lose.

[00:06:57] Speaker 01:
You're seeking justice to be done.

[00:06:59] Speaker 01:
But once you say there are a number of ways to interpret it, isn't that the end of the game?

[00:07:04] Speaker 01:
The district judge said, yeah, I agree, and we need explicitness.

[00:07:08] Speaker 01:
There has to be only one way if it's the defendant's own words that put him in jail for 10 years.

[00:07:13] Speaker 01:
Once you say there are a number of ways, isn't that really over here?

[00:07:17] Speaker 01:
Just factually.

[00:07:18] Speaker 01:
I'm not establishing a rule of law that's problematic for the government.

[00:07:25] Speaker 04:
I believe it was clear what

[00:07:43] Speaker 04:
a hearing clarification upfront when the factual basis is asked to be shared with the defendant in court.

[00:07:49] Speaker 00:
Should we see Thomas as really sort of the gold standard here of the way in which I wish everyone would do it, like, no, object, object, and go through all of that.

[00:07:58] Speaker 00:
But is that what we have to hold every single ... Because we're not ... Then we're sort of developing this other very rigid

[00:08:08] Speaker 00:
standard of what we're going to expect of the defendants to do that when the burden is on the government.

[00:08:18] Speaker 04:
Focusing on this record, I think it's clear about what the defendant actually knew and actually did.

[00:08:24] Speaker 04:
So we know he negotiated and distributed these specific quantity of drugs.

[00:08:30] Speaker 04:
How do we know that?

[00:08:31] Speaker 01:
The PSR, the probation department, wasn't convinced.

[00:08:34] Speaker 01:
In their PSR recommendation, they say it's five years.

[00:08:39] Speaker 04:
After the court asked them to correct their recommendation.

[00:08:42] Speaker 01:
But if that's a disputed issue, the government would have to do its sentencing saying we need a fact finding on that.

[00:08:49] Speaker 04:
I guess I'm focusing on what is explicitly stated in the factual basis about his negotiation of the amount of methamphetamine in exchange.

[00:08:58] Speaker 01:
Okay, but I'm just testing you because at the same time the government's telling the defendant that's for sentencing.

[00:09:04] Speaker 01:
We can determine it then, but then nobody does.

[00:09:10] Speaker 04:
It is correct that it is a sentencing enhancement.

[00:09:13] Speaker 04:
Again, that's what we would submit to the court.

[00:09:15] Speaker 04:
And he was properly advised of the elements in this case.

[00:09:18] Speaker 04:
But again, I agree with the court that it could have been stated more eloquently.

[00:09:23] Speaker 01:
You could have also, is it correct?

[00:09:25] Speaker 01:
The government could put it in the indictment.

[00:09:26] Speaker 01:
They could have put in the penalty provision, but this indictment doesn't have that.

[00:09:31] Speaker 01:
Is that right?

[00:09:32] Speaker 04:
I understand the indictment has an attached penalty slip.

[00:09:34] Speaker 01:
But that's not the grand jury didn't return that.

[00:09:37] Speaker 01:
That's the government attaching the slip.

[00:09:39] Speaker 01:
The grand jury indictment cites only 841 A. It does not cite the subsection of B that would tell you five or 10.

[00:09:47] Speaker 01:
I think I'm right about that.

[00:09:49] Speaker 04:
I can.

[00:09:49] Speaker 04:
No, that's right.

[00:09:50] Speaker 04:
Opposing counsel will say thank you, your honor.

[00:09:53] Speaker 04:
I'm sorry.

[00:09:53] Speaker 04:
But it did include the language that the court referenced earlier about the actual triggering quantity for the applicable 10-year mandatory minimum without the 51 allegation.

[00:10:14] Speaker 04:
It's our position, just turning back to focusing on the district court's written rulings and clarification of them and the error in this case.

[00:10:23] Speaker 04:
It's our position that the district court imposed a heightened knowledge requirement that was unsupported by this court's precedent.

[00:10:32] Speaker 03:
And what you're really talking about is when you started and you stood up at first is Colazzo.

[00:10:36] Speaker 03:
You're relying on Colazzo for that proposition, correct?

[00:10:39] Speaker 03:
Yes.

[00:10:39] Speaker 03:
But Clauso is different.

[00:10:42] Speaker 03:
It's not applicable in this circumstance.

[00:10:45] Speaker 03:
That case talks about what's necessary if you go to trial.

[00:10:47] Speaker 03:
This is a plea context, correct?

[00:10:50] Speaker 04:
That case did involve a conviction after trial.

[00:10:53] Speaker 04:
However, it is important and fleshed out some of the guiding principles here that guide the context of a trial.

[00:11:02] Speaker 03:
I'm struggling to understand how you are applying Clauso

[00:11:07] Speaker 03:
or telling us that we need to apply the rule and clause to this circumstance, which is an entirely different circumstance.

[00:11:15] Speaker 03:
And as described by our courts, the difference between what the government needs to show or doesn't need to show in trial is different.

[00:11:22] Speaker 04:
Well, it clarified an error in a jury instruction about a clear instruction about what the knowledge requirement is under the law.

[00:11:31] Speaker 04:
And those jury instructions delineate the elements, which are also applicable here in a change of plea context.

[00:11:38] Speaker 04:
And they flushed out the law as to, or I'm sorry, not flushed out, but reiterated what the law is.

[00:11:43] Speaker 04:
There is no requirement that there's proof beyond a reasonable doubt.

[00:11:46] Speaker 03:
Your argument is that not only is it not required if we apply Colosso, but

[00:11:52] Speaker 03:
even without Clauseau, the explicit admission standard is met based on your interpretation of the statements made.

[00:12:04] Speaker 04:
Because what Mr. taking his statement

[00:12:09] Speaker 04:
at best, that he denied knowing the purity.

[00:12:13] Speaker 04:
What he said was, I didn't know it was actual, but I knew it was drugs.

[00:12:18] Speaker 04:
He didn't say, I knew it was 50 grams or more of methamphetamine.

[00:12:23] Speaker 04:
The district court's opinion necessarily needed the factual basis to reach the conclusion it did.

[00:12:29] Speaker 04:
And it looked at the entire record.

[00:12:31] Speaker 04:
And the court went back and looked at the cold record.

[00:12:33] Speaker 04:
It didn't make findings based on

[00:12:35] Speaker 04:
And this is at ER 3 through 5, for example, in the transcript about Mr. Gaston's demeanor during the change of plea colloquy or some of those things which go to the standard of review argument.

[00:12:48] Speaker 00:
Council, I know you wanted to save some time.

[00:12:49] Speaker 00:
Do you want to save the rest of your time?

[00:12:51] Speaker 04:
Yes, thank you.

[00:13:00] Speaker 05:
Good morning.

[00:13:01] Speaker 05:
May it please the court, Aaron Radekin, appearing for Appellee, Mr. Gaston.

[00:13:05] Speaker 05:
He is also present in court, Your Honor.

[00:13:08] Speaker 05:
Your Honor, I think it's clear, the law is clear, that the mens rea of knowledge applies to an 841A offense, A1, that crime.

[00:13:18] Speaker 05:
And this entire plea colloquy is clear that Mr. Gaston was pleading to 841A1.

[00:13:23] Speaker 05:
He was told all you have to do are the elements of 841A1.

[00:13:29] Speaker 05:
His statement,

[00:13:32] Speaker 05:
His statements are ambiguous, as the court has noted.

[00:13:35] Speaker 00:
Well, what about the government's position?

[00:13:38] Speaker 00:
I mean, I don't think it lacks merit.

[00:13:40] Speaker 00:
They're saying, look, you go to the end, and there the judge is asking the government to state the facts, and here are the facts that could be established.

[00:13:50] Speaker 00:
They went through the facts, and they talked about

[00:13:53] Speaker 00:
the amount, and he acknowledged according to the transcript of that.

[00:14:01] Speaker 00:
Why is the government wrong about that, that that should be as explicit as you need?

[00:14:06] Speaker 05:
As you have indicated in your comments, a plea colloquy is to be evaluated under the totality of the circumstances.

[00:14:14] Speaker 05:
It's a contractual situation.

[00:14:16] Speaker 05:
There's no plea agreement here, but it's to be evaluated in terms of fairness and whether there's an explicit admission.

[00:14:22] Speaker 05:
And it's clear here, everything the government and the court is saying to him is telling him, you're admitting 841A1.

[00:14:29] Speaker 05:
All you have to admit for that is that you knew that it was drugs.

[00:14:33] Speaker 05:
Nothing he said was an explicit admission that the purity level under 841B1 was as the government stated.

[00:14:41] Speaker 05:
And I think we have to read the plea colloquy in terms of fairness.

[00:14:45] Speaker 01:
Well, let's start with the documents the government controls.

[00:14:48] Speaker 01:
The indictment did list amount, quantity, and quality, correct?

[00:14:53] Speaker 01:
Is that correct?

[00:14:54] Speaker 05:
I can't remember whether the indictment does.

[00:14:58] Speaker 05:
I think it's just in the penalty provision.

[00:15:01] Speaker 05:
But I don't think it matters.

[00:15:03] Speaker 01:
Let's just assume that the grand jury returns says you're charged with this crime.

[00:15:08] Speaker 01:
sufficient quantity and quality to trigger a 10-year mandatory minimum.

[00:15:12] Speaker 01:
Defendant, just hear my hypothetical.

[00:15:15] Speaker 01:
Defendant says, I want to plead to that charge.

[00:15:18] Speaker 01:
He can't rewrite the indictment.

[00:15:20] Speaker 01:
But then the court, under Rule 11 in Boykin, has to say, do you agree with the factual basis?

[00:15:25] Speaker 01:
And you heard me read out loud, the district court says, carefully, when he says, I agree with what I did, the district court then follows up and says, but do you agree with the statement of facts?

[00:15:36] Speaker 01:
And he says, yes.

[00:15:38] Speaker 01:
How is that not an explicit admission to what he had been notified by the grand jury was the charge he's pleading to?

[00:15:45] Speaker 05:
But he was notified by the government and his counsel at the outset that all you have to admit are the elements of 841A1.

[00:15:53] Speaker 05:
And he clearly made it clear that was what he was admitting, the elements of 841 and not the penalty provisions of B1.

[00:16:00] Speaker 01:
Okay, but then you don't deny that he heard the final paragraph of a factual basis.

[00:16:05] Speaker 01:
Let me pause.

[00:16:05] Speaker 01:
Actually, this is a really important record question.

[00:16:07] Speaker 01:
I'm not great finding the record here.

[00:16:09] Speaker 01:
It seemed to me from reading the colloquy, both sides had a written factual basis.

[00:16:15] Speaker 01:
Does that exist?

[00:16:16] Speaker 01:
Was there a written factual basis signed by the defendant and the government in this case, yes or no?

[00:16:20] Speaker 05:
No, there wasn't.

[00:16:21] Speaker 01:
Okay, so it's an oral statement.

[00:16:24] Speaker 01:
which does describe quantity and quality to trigger a 10 years and he says yes.

[00:16:29] Speaker 01:
How do, what's your response to why that isn't an explicit admission?

[00:16:33] Speaker 05:
Because it's six paragraphs after his counsel and the government told him he does not have to admit purity and he said.

[00:16:41] Speaker 01:
I'm going to parse that down because the rule of law can't be that some paragraphs count but others don't count.

[00:16:48] Speaker 01:
So I think it has to be back to that, your point that you're making, and I'm not disagreeing, that earlier there had been an odd little exchange.

[00:16:57] Speaker 01:
But do you agree that that exchange on its face doesn't matter, because that related to what he knew, which is irrelevant to the enhancements?

[00:17:07] Speaker 05:
I disagree with that.

[00:17:10] Speaker 05:
His statement, he never said anything indicating that he was accepting, clearly accepting,

[00:17:17] Speaker 05:
the purity level.

[00:17:18] Speaker 05:
And I don't think it's a de novo standard of review.

[00:17:22] Speaker 05:
Thomas was completely a legal issue, because the district court inferred from the guilty plea that all the facts in the indictment are proven.

[00:17:30] Speaker 05:
It's a legal issue.

[00:17:32] Speaker 05:
Here, this is a plea.

[00:17:33] Speaker 05:
When you evaluate whether or not a plea colloquy, where there are admissions, because it is clear, even though 841 doesn't have an L-admit,

[00:17:42] Speaker 05:
of knowledge of purity, and B1 does, the law is clear that the government still has to prove that.

[00:17:48] Speaker 01:
And if you haven't- So what should the government have done?

[00:17:50] Speaker 01:
I mean, here we have the Solicitor General approving an appeal because I think what they think is the rule of law you're asking for is not workable.

[00:17:58] Speaker 01:
The only document the government can control when a defendant pleads straight up is the factual basis.

[00:18:04] Speaker 01:
And here the defendant said yes.

[00:18:06] Speaker 01:
So what's your rule of law?

[00:18:08] Speaker 01:
That isn't an explicit omission.

[00:18:10] Speaker 01:
Why?

[00:18:11] Speaker 05:
It's not an explicit admission because, as you said, he was lulled into believing that all he had to admit were the elements of 841A1.

[00:18:17] Speaker 05:
Okay.

[00:18:18] Speaker 01:
And the district court had two hearings and each time reiterated that?

[00:18:22] Speaker 05:
Yes.

[00:18:23] Speaker 01:
Am I right that the district court, when it jumps to sentencing, doesn't ever resolve your client's motion to withdraw the guilty plea if he were facing 10 years mandatory minimum?

[00:18:32] Speaker 01:
Is that motion to withdraw still pending then?

[00:18:36] Speaker 05:
I don't recall, Your Honor.

[00:18:37] Speaker 01:
Do you remember that he filed a motion to withdraw?

[00:18:39] Speaker 05:
I didn't represent the judicial court, but I do remember that he filed a motion, but then he appeared sentencing with his counsel.

[00:18:44] Speaker 05:
He was allowed to make some remarks.

[00:18:47] Speaker 01:
I guess I'm wondering, in other words, what I'm saying is no one wants a gotcha rule, a windfall either way.

[00:18:52] Speaker 01:
So if his position is, okay, if the government thinks it can prove that it was pure meth,

[00:18:58] Speaker 01:
Let's go back and prove it.

[00:19:00] Speaker 01:
I want to withdraw my guilty plea.

[00:19:02] Speaker 01:
We can go to trial, and the lab expert under Smith will come in and confirm it's pure.

[00:19:07] Speaker 01:
Then I face the mandatory amendment.

[00:19:09] Speaker 01:
Is the relief you want, are you open to the relief you requested, which is just withdraw the plea and get this decided correctly?

[00:19:17] Speaker 01:
Is that the relief you want or not?

[00:19:20] Speaker 05:
I don't think the court has to do that.

[00:19:22] Speaker 05:
I mean, I think- What do you want?

[00:19:23] Speaker 01:
What are you telling us we should do?

[00:19:25] Speaker 05:
We- Affirmed, Judge Mueller made the correct decision.

[00:19:30] Speaker 05:
When you have a judge, a district court judge who has to decide whether or not a defendant made admissions, an admission that's sufficient to satisfy beyond reasonable doubt standard and that the admission is going to control a mandatory minimum of 10 years.

[00:19:43] Speaker 01:
But Thomas also says, at least resolve it at sentencing.

[00:19:46] Speaker 01:
And yet she never did.

[00:19:47] Speaker 01:
But the government has a running objection to the five year instead of 10 year.

[00:19:53] Speaker 01:
So the government is saying we object.

[00:19:55] Speaker 01:
Thomas says, either let a defendant get it proven correctly, or prove it up at sentencing.

[00:20:01] Speaker 01:
Neither of them happened.

[00:20:04] Speaker 01:
Why would he then just get the windfall of what may be counterfactual?

[00:20:08] Speaker 01:
That in fact, with a simple little evidentiary hearing, we're going to know if it's pure or it's not pure.

[00:20:14] Speaker 05:
Well, I believe he would if the court is going to find instead that the mandatory minimum applies, he would want to withdraw his plea and go back and have that's what I thought.

[00:20:21] Speaker 05:
Absolutely.

[00:20:23] Speaker 05:
But this is litigated the district court and this was not the wrong decision.

[00:20:28] Speaker 05:
The district court was sitting there interpreting his comments during a plea colloquy.

[00:20:32] Speaker 01:
Right, but I guess the point I'm making is it really doesn't matter what he thinks.

[00:20:36] Speaker 01:
We have a lab test.

[00:20:38] Speaker 01:
It's either pure or not, and yet that's never been verified.

[00:20:41] Speaker 01:
You're saying it's not true.

[00:20:42] Speaker 01:
The government's saying it is true.

[00:20:44] Speaker 01:
Why would either side just get our decision now about something that's a factual point?

[00:20:52] Speaker 05:
Judge Mueller resolved it.

[00:20:55] Speaker 05:
in the district court.

[00:20:57] Speaker 05:
And this is an abuse of discretion standard.

[00:21:00] Speaker 05:
She did not make an error in deciding that the plea colloquy as a whole fell short of an explicit admission.

[00:21:08] Speaker 05:
The government didn't ask for an evidentiary hearing.

[00:21:10] Speaker 05:
He was released.

[00:21:12] Speaker 05:
I think that it would be just the height of unfairness at this point to impose a mandatory minimum.

[00:21:19] Speaker 01:
No, I understand all that.

[00:21:20] Speaker 01:
That's fine.

[00:21:21] Speaker 05:
That's a fine argument.

[00:21:23] Speaker 01:
It was the government's burden.

[00:21:25] Speaker 05:
It was the government's burden.

[00:21:25] Speaker 01:
And instead, the government opposed the motion to withdraw, and the government didn't ask for Rule 32 here.

[00:21:30] Speaker 01:
OK, I understand.

[00:21:36] Speaker 05:
In any event, I'm prepared to submit at this point.

[00:21:39] Speaker 00:
Any other questions?

[00:21:41] Speaker 00:
No, thank you.

[00:21:42] Speaker 00:
All right, thank you.

[00:21:43] Speaker 05:
I believe Mr. Gaston wants to address the court.

[00:21:45] Speaker 05:
I told him that it's up to you.

[00:21:53] Speaker 00:
Any comment?

[00:21:56] Speaker 00:
Not at this time.

[00:21:57] Speaker 00:
I think I have enough information.

[00:21:59] Speaker 02:
Thank you very much, Mr. Gaston.

[00:22:14] Speaker 00:
Actually, and that's the thing.

[00:22:16] Speaker 00:
I don't think you can elaborate anymore.

[00:22:18] Speaker 00:
I think we have what we need to make a decision.

[00:22:20] Speaker 00:
So I appreciate your comments.

[00:22:22] Speaker 00:
And so now I'm going to turn to the government whose turn it is to talk.

[00:22:25] Speaker 00:
So thank you very much.

[00:22:34] Speaker 04:
Thank you.

[00:22:35] Speaker 04:
Touching briefly on a few things, starting with some of the court's questions about the withdrawal of a guilty plea and whether that's still pending.

[00:22:45] Speaker 04:
On the record, before the court, there was essentially a negotiation between the district court and the defendant.

[00:22:51] Speaker 01:
No, that's how you characterized it, but you opposed the motion to withdraw.

[00:22:54] Speaker 01:
Yes, we did.

[00:22:55] Speaker 01:
So you can't now get that.

[00:22:57] Speaker 04:
What I'm, I'm sorry, your honor.

[00:22:58] Speaker 04:
What I'm framing for the court is, I guess, why the district court didn't rule on that.

[00:23:04] Speaker 04:
The district court also didn't make a ruling on sentencing entrapment because the defendant said, I want this outcome.

[00:23:09] Speaker 04:
And if you give it to me, then I don't want these other things I'm asking for.

[00:23:13] Speaker 04:
That was repeated in the briefing and before the court.

[00:23:17] Speaker 04:
at the time.

[00:23:18] Speaker 04:
So I'm just submitting to the court that I believe that's why that was not addressed.

[00:23:21] Speaker 01:
There was this... For you to prevail, the government is aware it would have to go get the client and re-incarcerate him?

[00:23:28] Speaker 01:
That's correct?

[00:23:30] Speaker 04:
Yes.

[00:23:35] Speaker 04:
I'm sorry.

[00:23:35] Speaker 01:
For the government to prevail... If the government prevails, the government's position is they would now re-incarcerate someone that's been released.

[00:23:46] Speaker 04:
Yes.

[00:23:51] Speaker 04:
Because the critical question in this case is a legal error, and that is the consequence or the outcome.

[00:23:57] Speaker 04:
But the defendant was originally, his sentencing guidelines, if they were calculated according to the government's calculation, were 267 to 362 months.

[00:24:06] Speaker 04:
So that was what the original sentence could have been if the court would have imposed a within guideline sentence under the government's position.

[00:24:14] Speaker 04:
The problem with the,

[00:24:21] Speaker 04:
position that is advocated for by Mr. Gaston in this case, is it's asking the court to find any time a defendant says, I didn't know it was pure methamphetamine at the time I distributed it.

[00:24:33] Speaker 00:
So that's not what the rule is.

[00:24:35] Speaker 00:
The rule is that the judges are supposed to look at the totality of the circumstances.

[00:24:39] Speaker 00:
Isn't that what the district court judge did here?

[00:24:42] Speaker 04:
I'd submit it didn't.

[00:24:44] Speaker 04:
I believe that Judge Mueller, again, looking back, or I'm sorry, the district court, looking back at its review of the record, focused in on that one statement as opposed to looking back at- So then your argument can't be anytime someone just says, oh, there's some ambiguity.

[00:24:58] Speaker 00:
It's the fact that there was this discussion by the US attorney, by the way, who confused the issue apparently.

[00:25:06] Speaker 00:
Isn't that part of the problem here?

[00:25:08] Speaker 04:
I'd submit to the court that the district court did not properly view the totality of the circumstances and the entire record.

[00:25:16] Speaker 04:
It's then instead focused on that one statement by Mr. Gaston in response to the elements and had again this case gone to trial.

[00:25:24] Speaker 04:
There is no requirement as to his knowledge of purity at the time he distributed it.

[00:25:31] Speaker 04:
And unlike Thomas, there seemed to be an issue before the court as well factually about there potentially being a chain of custody issue and not just his lack of knowledge at the time of the drug crime, but also at the time of his change of plea.

[00:25:48] Speaker 04:
That did not exist here.

[00:25:50] Speaker 00:
There was no- Counsel, I think your time is up.

[00:25:52] Speaker 00:
Let me see if there are any additional questions.

[00:25:54] Speaker 00:
All right, thank you.

[00:25:56] Speaker 00:
This matter will stand submitted.

[00:25:58] Speaker 00:
I do appreciate the arguments of both council.

[00:26:01] Speaker 00:
And I think, again, this matter is submitted.

[00:26:04] Speaker 00:
Thank you.

[00:26:04] Speaker 04:
Thank you, your honor.

[00:26:06] Speaker 00:
And that will conclude our matters for today.

[00:26:07] Speaker 00:
Thank you very much.