[00:00:37] Speaker 11:
Thank you, you may be seated.

[00:00:54] Speaker 11:
Good afternoon and welcome everyone to the Richard Chambers U.S.

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Court of Appeals courthouse.

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matter of United States of America.

[00:01:42] Speaker 08:
for some sentencing decisions.

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That's why we're all here.

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being made and a determination of how the risk of error should be

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And that a change in the guidelines creates enough risk of a higher sentence to trigger the ex post facto clause, and that was impugned.

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And just recently in United States v. Castillo, this court recognized that the guidelines give the sentencing commission, quote, extraordinary power over individuals' liberty interests.

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There's also a significant risk of error from lesser procedures.

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data.

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They involve witnesses with complete

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because the guidelines allow the government to raise a broad range of allegations beyond the basic charges.

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I don't want to say that, Your Honor.

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From a defense perspective, reasonableness review rarely leads to reversal.

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I'll just put it that way.

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I think there's a lot that goes into that soup.

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it might reach a higher, sorry, a lower sentence, something that's more fair to the defendant if the guidelines are lower and if the guidelines should be lower based on the accuracy of the information, that seems like a right that the defendant should have.

[00:07:31] Speaker 03:
So Pugh and Molina Martinez did not address the standard of review here.

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What is the best authority

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about the tail wagging the dog and leaving room open for that it's

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And also I think Melina Martinez and Pugh, even though they're not about this, they're still important because they do identify that interest.

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I think a substantial right that sounds in liberty, as you see in Melina Martinez, they say this is a substantial right.

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And it's a substantial right because it's a right that goes to how much liberty the defendant's going to get.

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increase in the number of offense levels of more than four, and whether the enhancement more than doubles the guideline range.

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And to me, these are the factors that really get at whether the particular enhancement is extremely disproportionate to what a guidelines range otherwise would be.

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Would it turn back to Ryan whether the conduct underlying the enhancement was either charged or not charged, or whether if it was charged, the defendant was acquitted of it?

[00:09:59] Speaker 08:
I don't actually think they're necessary, Your Honor, and I'll explain why.

[00:10:08] Speaker 08:
I think if it's a little unclear what, I know in various cases we've talked about conductive convictions, a little unclear what that is and how far that extends.

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It seems to be something more than the elements and less than the whole case, but there is confusion about what that means.

[00:11:10] Speaker 08:
If a fact is part of the

[00:11:44] Speaker 12:
we agree with you and we continue applying the clear and convincing standard and I think nine other circuits apply preponderance of the evidence and there's a circuit split to the Supreme Court grant cert.

[00:11:56] Speaker 12:
I mean your honest assessment what do you think the Supreme Court would do?

[00:11:59] Speaker 12:
Agree with us or the other nine circuits?

[00:12:01] Speaker 08:
I don't know Your Honor.

[00:13:00] Speaker 08:
for a long time the Supreme Court has never taken cert on it so it doesn't

[00:13:41] Speaker 08:
is ultimately, to my mind, a narrow decision on a narrow issue.

[00:13:46] Speaker 08:
It's about vagueness.

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And the Supreme Court tells us that vagueness only protects two very specific interests.

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It protects the defendant getting fair notice about what's prohibited and how it can be punished and avoiding arbitrary enforcement.

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And according to the Supreme Court, only two types of laws are challengeable

[00:15:11] Speaker 04:
and the judge just has to consider them.

[00:15:14] Speaker 04:
Again, it goes to being a void for vagueness decision because when the guidelines were mandatory... I know this is wrong, I'm probably mispronouncing that, but there was a subsequent case that reiterated all these principles that you don't have a due process right to be sentenced within the guidelines.

[00:15:28] Speaker 04:
You have a due process right to be sentenced within the statutory maximum and minimum.

[00:15:49] Speaker 08:
3553A you have the guidelines they set out

[00:16:27] Speaker 04:
They could, but again, I think the

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But they have a much better chance of that and that that much better chance is the thing of value

[00:18:06] Speaker 08:
I mean, so you'd like a hypothetical where, so you have a guidelines determination that would meet this, so you're bumped way up in the guidelines, a large jump in the guidelines, and then where it would still be reasonable because some other factor

[00:19:13] Speaker 08:
is say what the guidelines are, and then give the low end, the middle end of the guidelines.

[00:19:17] Speaker 08:
Even like here, when the judge chose to vary, he varied in terms of the guidelines.

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He expressed, didn't just jump into space and 3553A, and I'm just going to do this thing that has no relation to the guidelines.

[00:19:31] Speaker 08:
He's tethering it to the guidelines still, just like Melina Martinez and Pew describe.

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And I think, again, it's that

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be reasonable than a higher point what would be reasonable.

[00:20:02] Speaker 08:
And getting to a correct guidelines range based on accurate facts is going to be part of how, how it may, or in many cases will, as the Supreme Court recognizes in many cases will, would be part of how the district court gets towards that lower end of what a reasonable sentence would be.

[00:20:32] Speaker 03:
whether the application note is inconsistent with that, or do you think the argument's been forfeit?

[00:20:59] Speaker 08:
panel, it told the panel that it had purposely chosen not to raise it because it thought that it could prevail under any standard and it wanted to pursue things in a narrower way.

[00:21:09] Speaker 08:
And then finally, in its en banc brief, it waived it for I think the third time when it explicitly said it wasn't seeking review of the panel's holding on that.

[00:21:17] Speaker 08:
So I think it's been repeatedly waived, and because the government's repeatedly waived it, we've never briefed it.

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And I would ask the Court not to address it here.

[00:21:31] Speaker 06:
If they hadn't waived that issue, we wouldn't be talking about the process and declaring convincing evidence standard.

[00:21:38] Speaker 06:
I mean, it seemed rather convenient to me that it was waived, like that this case is somehow here on an artificial procedural posture manufactured by some people.

[00:22:10] Speaker 08:
Yeah, well, I can address that a bit on the merits, Your Honor.

[00:22:17] Speaker 08:
I mean a few things.

[00:22:19] Speaker 08:
So in terms of the ambiguity the Supreme Court tells us, we don't just look at word definitions, we look at context, structure, history.

[00:22:46] Speaker 08:
handguns in America, all the most popular semi-automatic weapons can be physically fitted with large capacity magazines and there are large capacity magazines on the market for most of them.

[00:24:35] Speaker 08:
Um, it's a weird case in which, uh, you don't, the gun's never recovered.

[00:24:41] Speaker 08:
So, and the magazine's never recovered.

[00:24:43] Speaker 08:
So we don't, we don't have those.

[00:24:46] Speaker 08:
Um, and, uh, um, instead we have pictures interpreted by experts and both experts.

[00:24:53] Speaker 08:
And in the recorded statement, there are big problems with the recorded statement.

[00:25:07] Speaker 08:
of the preponderance, we have the two experts, government's expert defense

[00:26:04] Speaker 07:
I'm saying we're going to reject, hypothetically, we're going to find it should be preponderance of the evidence, and hypothetically reject your view that the evidence doesn't support even the preponderance, given that the district court found clear and convincing.

[00:26:21] Speaker 07:
Would there be any reason for us, with those two hypothetical rulings, to remand the case?

[00:26:37] Speaker 08:
the commentary note, assuming we're proceeding under the commentary note, I think it would make, to my mind, more sense to send it back for them to, for the district court to do it properly under the proper reading of the commentary note, rather than assume that

[00:27:17] Speaker 12:
all than for the United States.

[00:27:20] Speaker 12:
There's no dispute that this Court stands alone in continuing to apply the clear and convincing evidence standard to any of the facts for the advisory sentencing guidelines' purposes.

[00:27:30] Speaker 12:
My friend has conceded that point.

[00:27:33] Speaker 12:
And I want to explain why, even though that stark circuit split is itself reason to reconsider this Court's precedence, I want to focus on why I think all of those other

[00:27:58] Speaker 12:
Macmillan v. Pennsylvania.

[00:28:00] Speaker 12:
That is the case that Judge Coe mentioned and I do think that is the controlling precedent.

[00:28:05] Speaker 12:
That is the case in which the Supreme Court evaluated Pennsylvania's

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it is necessary under the due process clause.

[00:28:56] Speaker 12:
So I really do think that case controls the outcome here.

[00:29:01] Speaker 12:
After that case, what happened was this court, in the last time it considered this issue on bank, which was 1991 in Restrepo, took what the Supreme Court said in McMillan and latched onto it during a mandatory

[00:29:26] Speaker 12:
The proverbial tail wags the dog example.

[00:29:30] Speaker 12:
That made sense during the mandatory guidelines regime when a sentencing fact could dramatically increase and automatically increase a defendant's sentence.

[00:29:41] Speaker 12:
It does not make sense during an advisory guidelines era.

[00:29:46] Speaker 12:
The court in McMillan in addition

[00:29:52] Speaker 12:
was no heightened burden of proof, pointed out two other things that I think are important here.

[00:29:57] Speaker 12:
One, traditionally, judges found sentencing facts without any prescribed burden of proof at all.

[00:30:05] Speaker 12:
Under the guidelines, we agree that the due process clause requires a preponderance standard, but pre-guidelines, there was no burden whatsoever.

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And the other point that I think is important about McMillan and Restrepo is that the

[00:30:21] Speaker 12:
There is no tail that wags the dog only exists where the factor has an extremely disproportionate effect on the sentence relative to the offense of conviction.

[00:30:33] Speaker 12:
That's what this court picked up on.

[00:30:52] Speaker 12:
I may have misheard you, are you saying that

[00:31:21] Speaker 12:
requires a preponderance standard as to guidelines, determinations in the advisory era.

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standard is, is the fact false or unreliable.

[00:31:56] Speaker 12:
And that's what due process requires outside the guidelines context within the guidelines context.

[00:32:02] Speaker 12:
I agree that the preponderance standard should

[00:32:27] Speaker 12:
Polina Martinez, gall.

[00:33:08] Speaker 12:
in a guidelines regime.

[00:33:12] Speaker 12:
After, of course, to get into some of the other cases that we've been talking about, the Supreme Court decides back goals.

[00:33:18] Speaker 12:
And in addition to the other prior precedents, it reinforces the conclusion that in an advisory regime, there

[00:33:32] Speaker 12:
that there is no expectation of a sentence within the guidelines range anymore.

[00:33:38] Speaker 12:
And that decision in Beckels was indeed premised on the idea that all of these constitutional constraints and parameters are rooted in the history of the federal sentencing guidelines.

[00:33:49] Speaker 12:
So Beckels reinforces that notion, other circuits

[00:34:11] Speaker 12:
which is exactly why I started with the case that you mentioned earlier, McMillan, because I do think McMillan is the controlling precedent.

[00:34:18] Speaker 12:
I would agree that Beckles is not directly on point with respect to due process heightened burdens of proof, but I think it nonetheless should cast some light on another provision of due process, just as vagueness is one provision, the burden of proof is another.

[00:34:39] Speaker 12:
out how the vagueness challenges could no longer be mounted after the guidelines became advisory.

[00:34:45] Speaker ?:
It makes sense.

[00:35:06] Speaker 05:
conclude whether the magazine could actually be modified to accept fewer than 15 rounds of ammunition.

[00:35:13] Speaker 12:
So both experts in this case, both ours and the defense expert, agreed that by just looking at the photo you could tell it was extended length.

[00:35:20] Speaker 12:
Granted, that does not necessarily mean high capacity.

[00:35:24] Speaker 12:
But both experts also said an extended length magazine is designed in its ordinary course to be a large capacity magazine.

[00:35:38] Speaker 12:
to me looks like a magazine that could hold 22 or even 31 rounds of ammunition.

[00:35:44] Speaker 12:
So the preponderance standard being more likely than not, it is more likely than not that this was not modified to limit its capacity.

[00:35:53] Speaker 12:
Why isn't that speculative?

[00:35:55] Speaker 12:
There are, first of all, I think it flows from the common sense principle that ordinarily something is in its ordinary state, but I think there's other points of evidence that reinforce that.

[00:36:06] Speaker 12:
First is the ATF Nexus experts statement that he had never seen a large capacity magazine with a restriction of this nature that would have limited it to lower than 15.

[00:36:20] Speaker 11:
So despite the fact that both of the experts said that without examining it physically they couldn't really make a determination which

[00:36:36] Speaker 11:
And so I guess the question is, if they're both equivocal on that, how does that get you to 51% here?

[00:36:57] Speaker 12:
That doesn't mean that the totality of the evidence was equivocal and the panel didn't say that.

[00:37:03] Speaker 12:
The three-judge panel said the government's expert was equivocal.

[00:37:06] Speaker 12:
When you add the additional evidence to that, I think it gets you beyond the 50% threshold.

[00:37:27] Speaker 12:
I believe that his statement was he had seen numerous magazines that were extended length and had never encountered one that was California compliant.

[00:37:42] Speaker 10:
I don't want to derail you from answering Chief Judge McKay's question, but if you could tease that out, we have other evidence on the record indications that there's this way to block them and make them California compliant.

[00:38:04] Speaker 12:
That is why he couldn't state conclusively and his word was I can't say conclusively that this is something that would hold more than 15 rounds when you combine that with the fact that both experts agree that these are ordinarily manufactured to hold

[00:38:32] Speaker 10:
And we're going to come back to that.

[00:38:33] Speaker 10:
I think that is the universe of evidence, right?

[00:38:36] Speaker 10:
The two experts looking at the photo.

[00:38:38] Speaker 10:
Nobody ever had the object in front of them.

[00:38:41] Speaker 10:
What's your best shot at answering Chief Judge McGee's question before you move on to the recorded call, please?

[00:38:47] Speaker 10:
Your best shot at why those experts' opinions are not equivocal.

[00:38:52] Speaker 12:
I would say that those experts are both inconclusive.

[00:38:56] Speaker 12:
I agree with that.

[00:38:57] Speaker 12:
What I think is necessary, though, is that the panel was operating under a clear and convincing evidence standard, and I agree that that wouldn't reach clear and convincing evidence.

[00:39:07] Speaker 12:
I understand that.

[00:39:08] Speaker 11:
So it's like, why does it reach – how does inconclusive evidence reach preponderance?

[00:39:14] Speaker 12:
You have to start from the proposition that these are ordinarily manufactured to hold more than 15 rounds.

[00:39:37] Speaker 11:
Yes.

[00:39:38] Speaker 11:
So, if no expert came on at all, do you think there's a presumption there that you win?

[00:39:50] Speaker ?:
That's a very close case, but I would say when you have a device

[00:39:59] Speaker 12:
Is it more likely than not that it has been modified or that it is in its ordinary state?

[00:40:04] Speaker 12:
If that were the whole of the universe, I don't know that we could defend that even on a preponderance standard.

[00:40:25] Speaker 12:
which is defendants moniker has been is is here for

[00:41:19] Speaker 12:
When it's corroborated by the photo that appears to show a magazine that is in excess of, that both experts agree in its ordinary course would be an expert in excess of 15 rounds, in addition to the government's ATF nexus experts saying that he has never encountered one that is of limited capacity, that totality is enough.

[00:41:58] Speaker 10:
And the other data point we have is that it is possible in California to make this thing California-compliant, right, to block part of the capacity.

[00:42:05] Speaker 10:
So I'm not sure what the ordinary state is if we're talking about a gun in California.

[00:42:12] Speaker 12:
What do we do with that?

[00:42:20] Speaker 12:
California will have a limited capacity to reduce them below 15 rounds.

[00:42:25] Speaker 12:
That expert report noted that this defendant Lucas's magazine was so long that it wouldn't have even been one of the ones that was 15 rounds when shipped out of state that he estimated that it was a 22 or 31 round magazine to begin with.

[00:42:42] Speaker 12:
So this wasn't like a magazine that gets shipped to every other state without a restrictor blocker pin.

[00:43:10] Speaker 10:
But you are welcome to tell me what I'm missing.

[00:43:13] Speaker 12:
I have nothing more than what I've given you.

[00:43:15] Speaker 12:
The totality, the evidence is... Well, let me ask you this.

[00:43:18] Speaker 02:
When I'm hearing all of this, it seems like some people think that's a preponderance and some people think that maybe it wouldn't be, right?

[00:43:26] Speaker 02:
But we're... So, if the district... if it was good enough for the district court...

[00:43:52] Speaker 12:
be reviewed for clear error only.

[00:43:55] Speaker ?:
The panel said in its opinion that the district court clearly erred in finding this by clearing convincing evidence.

[00:44:03] Speaker 12:
However, if the standard were a preponderance of the evidence, the district court did not clearly err.

[00:44:08] Speaker 12:
Its decision was not illogical, implausible, or unsupported by inferences that can be drawn

[00:44:26] Speaker 04:
to consider the evidence under the correct standard.

[00:44:57] Speaker 04:
and also the district court.

[00:45:28] Speaker 12:
I'm not aware of other evidence, although I suspect if we were to have to meet a burden on remand, we might introduce more evidence about the prevalence of these blockers and the rarity of them.

[00:45:43] Speaker 12:
But given the state of this current record, that is sufficient for this court to affirm without remanding,

[00:46:06] Speaker 09:
is there?

[00:46:08] Speaker 12:
The government is not asking this court to address application no two.

[00:46:12] Speaker 12:
I agree with my friend we did not brief that issue.

[00:46:14] Speaker 12:
It was not calculated.

[00:46:16] Speaker 12:
This brief was filed before this court's decision in Castillo where this court for the first time applied Kaiser to the guidelines.

[00:46:25] Speaker 12:
Had we filed this brief after the Castillo decision, I believe we would have made this argument.

[00:46:32] Speaker 06:
So isn't that a reason why we should

[00:46:37] Speaker 06:
consider all of these things.

[00:46:40] Speaker 06:
It should be considering the application and the guideline.

[00:46:46] Speaker 06:
If it's going to also be considering this whole thing under a new standard, it needs to consider the correct law.

[00:47:10] Speaker 06:
taking all this new law into consideration?

[00:47:16] Speaker 12:
I think my friend has a fair point when he says that the government waived this by failing to address it in its answering brief.

[00:47:22] Speaker 12:
I don't think it is correct to say we waived this by not raising it below because we can argue for affirmance on any basis as the appellee.

[00:47:31] Speaker 12:
However, the rule is that the government has to make the argument in its answering brief at cost or risk of

[00:47:59] Speaker 12:
that because we failed to make this argument in our answering brief, we waived it.

[00:48:03] Speaker 04:
Now… Yes, and if this were to be remanded instead of having gone

[00:48:28] Speaker 12:
that Application Note 2 is not valid under Kaiser and Castillo, nonetheless.

[00:48:35] Speaker 04:
Sorry.

[00:48:35] Speaker 04:
So that would suggest that, in my view, the government wasn't doing anything sneaky or tricky or trying to manipulate the case, because making that argument is to your favor.

[00:48:43] Speaker 04:
You wouldn't have to deal with any of the explanation in Application Note 2 if it's capable of receiving the extended magazine.

[00:48:51] Speaker 04:
Both of the experts testified it clearly is.

[00:49:12] Speaker 12:
going to reach the due process question, whether there should ever be a heightened burden of proof under the advisory guidelines regime, and if this court

[00:49:47] Speaker 03:
A criminal defendant does not have a due process interest to be sentenced within their presumptively applicable guideline range.

[00:49:54] Speaker 03:
Therefore, they have no due process interest in any specific standard of proof.

[00:49:59] Speaker 03:
You would say that's wrong, right?

[00:50:01] Speaker 03:
Because you earlier just said that under any regime, mandatory or advisory guidelines, a criminal defendant would have a due process interest in at least the proponents of the evidence standard of proof.

[00:50:12] Speaker 12:
You would say that's wrong.

[00:50:19] Speaker 12:
law, and because of the importance and the guidelines determination to any defendant's sentence, that there is a due process right to a preponderance standard.

[00:50:29] Speaker 04:
So I have a question for you.

[00:50:30] Speaker 04:
We had a fair number of questions and discussion about speculation in this case.

[00:50:34] Speaker 04:
What evidence is speculative?

[00:50:36] Speaker 04:
From my review of the expert reports and the testimony, the defendant's expert was speculating that the magazine

[00:50:54] Speaker 12:
That's correct and that gets back to where does this really begin when you start from the ordinary magazine of this length has a capacity of 22 to 31 rounds is that by itself sufficient

[00:51:26] Speaker 03:
sort of evidence, but that is not the totality here.

[00:51:56] Speaker 03:
regime that would get at looking at these concerns?

[00:52:01] Speaker 12:
Yes, I think it would be under a substantive reasonableness regime, which is what a lot of other circuits, including the Seventh Circuit, that the amicus brief sites, and then I believe defense sites in Reuter held, that we are now transitioned into a reasonableness regime where this Court 10 does always, if the issue is raised, review for substantive reasonableness.

[00:52:24] Speaker 12:
And I do want to point out that

[00:52:41] Speaker 12:
make us briefly leads leads with is called Shafi a case in which the district court said I am holding the government to a clear and convincing evidence standard as to a terrorism enhancement because it makes a big difference here but but the district court went on to say I've explained why I think the terrorism enhancement doesn't apply but if it did my sentence would be the same

[00:53:20] Speaker 12:
the exact same scenario.

[00:53:22] Speaker 12:
In Longidge, which was one of the most recent cases where this court grappled with the issue at great length, the district court took a 292 to 365 month range and sentenced one of the defendants to 80 months.

[00:53:37] Speaker 12:
So district courts, as my friend put it, exercise a lot of discretion.

[00:53:43] Speaker 12:
A lot is left to the judge's discretion.

[00:53:45] Speaker 12:
I agree with that.

[00:53:47] Speaker 12:
And if a district court is really concerned

[00:54:01] Speaker 03:
I do.

[00:54:05] Speaker 12:
And I think that the heightened burden of proof rarely leads to reversal too and actually causes much more litigation, judicial resources,

[00:54:35] Speaker 12:
on remand.

[00:54:36] Speaker 12:
In ritual, the district court said, on remand, the standard didn't matter.

[00:54:43] Speaker 12:
I would, under a clear and convincing evidence standard, reaffirm it's my previous factual findings.

[00:54:50] Speaker 12:
This happens time and again where a district court is asked to apply a heightened standard, and doing so comes to the same conclusion.

[00:54:58] Speaker 12:
What rarely happens is that it makes a difference.

[00:55:46] Speaker 08:
and standard and then you would never see an appeal.

[00:56:25] Speaker 08:
California, to have the magazine in California, for the magazine to come into California, it's supposed to be California compliant.

[00:56:32] Speaker 08:
It's supposed to be modified to only hold 10 hours.

[00:56:34] Speaker 10:
I have a whole new record that tells us the prevalence of that.

[00:56:38] Speaker 08:
No, and this is the point the panel made, that the government didn't put any evidence of the prevalence.

[00:56:43] Speaker 08:
They just want to say that since the original build is this, you know, there's some principle whereby we should assume that they continue to be that.

[00:57:49] Speaker 08:
white magazines because this is california so it's not all that's out there it's not all that's out there

[00:59:01] Speaker 08:
And the reports say that these can be modified with pins, with rivets, with other means.

[00:59:04] Speaker 08:
So he's talking about one means of modification.

[00:59:07] Speaker 08:
In terms of your point in deference, or your question in deference, again, I see that the district court making a pretty significant legal error in how it's interpreting

[01:00:17] Speaker 08:
I mean...

[01:01:18] Speaker 03:
What would you like the post – post-regime to look like with just substantive reasonableness?

[01:01:25] Speaker 03:
Is it 3553A considerations would be considered when reviewing a factual dispute that would have a disproportionately large impact on the Senate?