[00:00:05] Speaker 01:
Good morning, Your Honors.

[00:00:06] Speaker 01:
Good morning.

[00:00:07] Speaker 01:
May it please the Court?

[00:00:08] Speaker 01:
I'm Sharon Rancourt, and I represent Mr. Galindo.

[00:00:12] Speaker 01:
And I'd like to reserve two minutes for rebuttal.

[00:00:15] Speaker 01:
And I will need a pointer or a reminder, because I'm probably going to lose track of the time clock when I'm getting close.

[00:00:21] Speaker 01:
I'll try to help.

[00:00:22] Speaker 01:
Thanks.

[00:00:22] Speaker 01:
I really appreciate that.

[00:00:25] Speaker 01:
Thank you.

[00:00:26] Speaker 01:
To start out, I'd like to say that discretion is not unfettered.

[00:00:34] Speaker 01:
nor is it absolute.

[00:00:36] Speaker 01:
It can be abused, and in this case, it was.

[00:00:40] Speaker 01:
And after conceding that Mr. Galindo, if sentenced today, would be facing a sentence and would receive a sentence 20 years lower than he did back in 2008... Could you stop there for a second, because I know that the facing is correct.

[00:00:55] Speaker 04:
I don't read the district court as saying that he would have given him that sentence, had he been sentencing him today.

[00:01:04] Speaker 04:
He said you faced a sentence that would have been considerably less.

[00:01:10] Speaker 04:
But can I tell from this record what the, see, I read it pretty carefully.

[00:01:16] Speaker 04:
I don't think Judge Ezra ever said, gee, if you were showing up in front of me today on these same facts, I would give you

[00:01:25] Speaker 04:
what is the new mandatory minimum as opposed to some other sentence within the guideline range or that he could have given him?

[00:01:32] Speaker 01:
I have three answers to that.

[00:01:34] Speaker 01:
First, I looked at page eight of the opinion, and I tried as best I could to interpret what was said.

[00:01:38] Speaker 01:
And I did interpret, in other words, if defendant were sentenced today, he would receive a sentence that is 20 years less

[00:01:46] Speaker 01:
than the original sentence imposed, and the court finds this disparity to be extraordinary and compelling.

[00:01:53] Speaker 01:
So the way that I read that, I was looking at that as if this were a resentence, if this were under a standard where there was a retroactive that applied and it went back for a resentencing, I was reading this to say that if that had occurred,

[00:02:10] Speaker 04:
No pre-sentence report or anything done again.

[00:02:14] Speaker 01:
If it had been a do-over sentence, but there's and there's reasons why that conclusion.

[00:02:20] Speaker 03:
We don't read the record the same as you do.

[00:02:22] Speaker 03:
Do you lose?

[00:02:24] Speaker 01:
No, because there's two other ways to read this record and one is.

[00:02:29] Speaker 03:
I don't read the record the way that you read it either.

[00:02:32] Speaker 01:
Well, let me talk about.

[00:02:33] Speaker 03:
Maybe you need to tell why you don't lose under other theories.

[00:02:37] Speaker 01:
Well, first of all, if we look at the history of this case, the court traditionally was following the guidelines.

[00:02:43] Speaker 01:
For example, when it granted the all drugs minus two, the court could have made an analysis under 3553A factors that the automatic reduction didn't apply.

[00:02:53] Speaker 01:
And the court actually did apply the all drugs minus two and granted the sentence reduction.

[00:02:58] Speaker 01:
Second, when the original sentence was done, the court gave a low end of the guideline sentence on the drug charge

[00:03:05] Speaker 01:
didn't call for an upward departure, didn't even go high end, and then gave the minimum sentences in the stack 924C.

[00:03:13] Speaker 04:
I'm not sure it's as positive, so I don't want you to get caught in the weeds on this, but we have a judge who's sentencing somebody under a very harsh regime the first time.

[00:03:24] Speaker 04:
It's a 30-year sentence and says,

[00:03:28] Speaker 04:
do the best I can to minimize the effects of that.

[00:03:31] Speaker 04:
So I'm going to put him at the lower end of the guidelines and do everything I can because I don't think, I think that sentence is too long.

[00:03:39] Speaker 04:
We have a judge in a different circumstance now, a judge who says there's been a reason to re-sentence

[00:03:45] Speaker 04:
And I might not want to count all the things I counted the first time in his favor or end up in the same place.

[00:03:52] Speaker 04:
So that's why I'm trying to figure out, and I'm not sure it's as positive at all, but you keep saying he would have gotten this sentence.

[00:03:59] Speaker 04:
And I just, I don't know that we can conclude that from this record.

[00:04:02] Speaker 01:
Well, let me go to the abuse of discretion standard here and what actually happened when Mr. Glendo was sentenced on his compassionate release motion and the way that the opinion was written.

[00:04:13] Speaker 01:
What we're arguing is that the court went back and looked at the 3553A factors, and what the court focused on primarily were two of those, two factors.

[00:04:23] Speaker 01:
One was dangerousness in criminal history, and then the court also discussed post-offense rehabilitation.

[00:04:30] Speaker 01:
And what we're saying, similar to the case in Johnson, is that the court granted too much weight to one and not enough to the other.

[00:04:37] Speaker 04:
Johnson was a retroactive resentencing.

[00:04:40] Speaker 04:
It was about...

[00:04:42] Speaker 04:
It was.

[00:04:44] Speaker 04:
That's why I asked that question.

[00:04:46] Speaker 04:
We have a judge who's not doing a retroactive resentencing and who gave less weight to these things the first time through because he knew your client faced what I thought was an unconscionably

[00:04:58] Speaker 04:
harsh sentence, and Judge Ezra apparently agreed.

[00:05:02] Speaker 04:
But I'm not sure he has to give the same weight to those factors the second time through that he did the first time.

[00:05:09] Speaker 01:
Well, then here's where the error occurred.

[00:05:11] Speaker 01:
Johnson did talk about how it was substantively unreasonable, slightly different standard, because our abuse of discretion— What's an incredibly different standard?

[00:05:18] Speaker 01:
Yes, it is.

[00:05:19] Speaker 01:
Our abuse of discretion standard has to do with illogical, implausible,

[00:05:23] Speaker 01:
or you can give erroneous weight to various factors.

[00:05:27] Speaker 01:
So we're looking at unreasonable nonetheless.

[00:05:29] Speaker 01:
There's tons of ways one can describe unreasonable.

[00:05:32] Speaker 01:
When I read the decision in looking at dangerousness, there are three ways to look at criminal history.

[00:05:39] Speaker 01:
One was the nine criminal history points, which was bumped up at that time to 12, and I think now it will be 10, but criminal history category five nonetheless.

[00:05:46] Speaker 01:
One was the

[00:05:49] Speaker 01:
series of either uncharged or dismissed arrests, some of which did contain crimes of violence.

[00:05:55] Speaker 01:
And then one was what were called the severed and dismissed charges, which the court initially said it was not going to consider.

[00:06:02] Speaker 01:
And that's important because I can look back at the record and look at the pre-sentence report and look at what happened there, where the attorney for Mr. Galindo objected to the severed charges or the dismissed charges

[00:06:14] Speaker 01:
even being considered and was going to call for an evidentiary hearing based on the fact that the attorney believed that one of the sources wasn't credible and that Mr. Galindo was disputing the severed charges.

[00:06:29] Speaker 01:
And there wasn't an evidentiary hearing, and when it was raised at the sentencing,

[00:06:33] Speaker 01:
in that case, the judge clearly said, I'm not going to consider it.

[00:06:37] Speaker 01:
So the judge made it very clear.

[00:06:40] Speaker 01:
So to the extent that the way the opinion was worded on the compassionate release motion, which talked about history of serious criminal violence, the most violent conduct that would have been an issue here would have been those dismissed, unconsidered charges.

[00:06:56] Speaker 04:
I'm trying to figure out whether your argument is procedural or substantive.

[00:07:02] Speaker 04:
Are you saying that it would be an abusive discretion under any circumstances to only reduce the sentence by six years or are you saying the judge didn't give good enough reasons to only reduce it by six years?

[00:07:15] Speaker 01:
I'm not saying it's a case-by-case basis and one always has to consider the individual circumstances under the abusive discretion standard on a compassionate release motion.

[00:07:25] Speaker 03:
Well, you wanted to get him out that day.

[00:07:28] Speaker 03:
Okay, you wanted to get credit for time served.

[00:07:31] Speaker 03:
The court didn't go for it.

[00:07:32] Speaker 03:
The court gave him six years off his sentence, right?

[00:07:35] Speaker 03:
That's correct.

[00:07:36] Speaker 03:
So I think you can answer Judge Hurwitz's question.

[00:07:40] Speaker 03:
Is it procedural or substantive?

[00:07:42] Speaker 03:
You didn't get what you wanted, but what was wrong with the procedure?

[00:07:48] Speaker 03:
Well, it's procedural in the sense that— He got resentenced after the First Step Act.

[00:07:55] Speaker 01:
He followed the process in considering the 3553A factors and did, at face value, attempt to make a re-weigh.

[00:08:04] Speaker 01:
If there was a procedural error, I believe that there could be two.

[00:08:08] Speaker 01:
One is going back and reconsidering in that process a factor which he specifically said he wasn't going to consider.

[00:08:16] Speaker 01:
The first time.

[00:08:18] Speaker 01:
The first time.

[00:08:20] Speaker 04:
But he's now re-sentencing under

[00:08:24] Speaker 04:
under a regime where he could give him legally the same sentence he got the first time.

[00:08:30] Speaker 04:
So I'm trying to figure out is six years too little in your view or did he not explain well enough in your view why six years was the right number.

[00:08:41] Speaker 01:
In terms of unpacking where the dangerousness came from and what was being relied on, there was a failure to explain significantly where that happened.

[00:08:50] Speaker 01:
It was lumped in.

[00:08:51] Speaker 01:
And so, therefore, I tried to unpack it by talking about the criminal history versus the arrest versus the unconsidered conduct.

[00:08:59] Speaker 01:
It is disturbing, because if we were to go back now on the compassionate release, the attorney doesn't have an opportunity to do an evidentiary hearing.

[00:09:07] Speaker 01:
But yes, 150-month upward departure from the guidelines, and even higher if one were to consider the all drugs minus two.

[00:09:15] Speaker 04:
You're saying it's 150-month upward departure from a guideline that would have been applicable had the, maybe, we don't know what the guideline would have been, but you're inferring that, had the act been retroacted.

[00:09:28] Speaker 04:
The guideline sentence in this case is whatever guideline sentence was put the first time.

[00:09:35] Speaker 04:
The question is whether to reduce that, isn't it?

[00:09:37] Speaker 01:
Yes, but it still has to be logical and plausible and somehow internally consistent.

[00:09:44] Speaker 01:
There is an issue with the court who appear to go back and reweigh a static factor that it said it wasn't going to consider.

[00:09:50] Speaker 04:
I know you were trying to save time.

[00:09:51] Speaker 04:
I didn't want to use up all your time.

[00:09:53] Speaker 01:
No, that's fine.

[00:09:54] Speaker 01:
I appreciate that.

[00:09:57] Speaker 01:
Thank you.

[00:10:09] Speaker 03:
Good morning morning.

[00:10:12] Speaker 00:
May please court Jonathan Slack, the United States.

[00:10:15] Speaker 00:
The court was just asking Miss Rain Court, my friend about the retroactivity, how that affects the analysis in this case.

[00:10:22] Speaker 00:
I think that's very discerning question.

[00:10:24] Speaker 00:
I think it's important to start with the default rule and that's the judgments that includes a sentence of imprisonment are final and not modifiable except in limited circumstances.

[00:10:34] Speaker 00:
That's from the Dillon decision cited in page six of the district court's order.

[00:10:39] Speaker 00:
And that's sort of a straightforward principle, because sentences reflect societal judgments through the public law that's enforced at the time of the prosecution.

[00:10:48] Speaker 00:
And they're not ordinarily going to be modified due to subsequent changes in the law.

[00:10:52] Speaker 04:
But there are some.

[00:10:53] Speaker 04:
But we do review the judge.

[00:10:55] Speaker 04:
I mean, we review the judge's decision deferentially, but we review it.

[00:10:59] Speaker 04:
So what if we had a case, not this case, where the judge said, I do find the passage of the First Step Act to be a qualifying extraordinary circumstance?

[00:11:08] Speaker 04:
And I'll give you a minute off your sentence for that.

[00:11:12] Speaker 04:
Will we find an abuse of discretion for that?

[00:11:16] Speaker 00:
I think if there's no analysis of the factors.

[00:11:18] Speaker 00:
Sure.

[00:11:19] Speaker 04:
So now the question is, was the judge's analysis of why he ended up at six years, did he make a legal error in that analysis or a procedural error?

[00:11:30] Speaker 04:
So help me with that question.

[00:11:31] Speaker 00:
Thank you, Your Honor.

[00:11:32] Speaker 00:
I would submit that the judge did not make an error there.

[00:11:35] Speaker 00:
Procedurally, there was no error.

[00:11:37] Speaker 00:
I think at the abuse of discretion standard, obviously, you're looking for an issue with the incorrect legal principles stated from the start, incorrectly applying that to the case, or putting weight on facts that don't exist in the record.

[00:11:51] Speaker 00:
That's sort of the three metrics you can look for from abuse of discretion.

[00:11:55] Speaker 00:
Neither of those exist in this case.

[00:11:57] Speaker 00:
the court correctly identified the law that applies for capacity release.

[00:12:01] Speaker 04:
Did your, the other side, because I don't know if your friend today represented this gentleman at re-sentencing, did they ask for an evidentiary hearing?

[00:12:10] Speaker 00:
i believe in the underlying uh... at the original sentencing yes at the at the what i call the resentencing was did anybody say i'd like an evidence you're hearing to determine whether or not some of these facts actually occurred i don't think so your honor that would be in the reply to uh... request release briefing i think it was the dismissed context of what is what it's called was not mentioned opening brief obviously wouldn't favor the appellant it was mentioned in our response to the motion

[00:12:40] Speaker 00:
but the reply did not address it.

[00:12:42] Speaker 00:
So I think that's a good point.

[00:12:43] Speaker 02:
Can you just respond directly to your friend's argument that it was illogical for the district court to rely upon that conduct when it didn't the first time around or said that it wouldn't?

[00:12:55] Speaker 00:
Yes, Your Honor.

[00:12:55] Speaker 00:
So I think it's actually not clear whether the district court considered the conduct.

[00:13:00] Speaker 00:
I think if you just look at the four corners of the order, it's not clear whether the court did or not.

[00:13:06] Speaker 00:
I would submit the most reasonable interpretation is the court did not consider that conduct, didn't need to, because the remainder of the record included instances of violent criminal conduct by this defendant.

[00:13:18] Speaker 00:
For example, on page seven of the PSR, that talks about counts nine and 11, where the defendant committed a gunpoint robbery of methamphetamine and car keys that's threatened violence.

[00:13:29] Speaker 00:
Also at PSR page 11, that describes a physical struggle between the police and the defendant in a crawl space of the ceiling, which the defendant fell through the ceiling.

[00:13:41] Speaker 00:
The struggle continued on the ground.

[00:13:43] Speaker 00:
Certainly another example of violence there.

[00:13:45] Speaker 00:
And also at PSR page 8, there's a statement from a witness describing the defendant as being known for strong-arming people, as well as having a signature move of a pistol whip.

[00:13:57] Speaker 00:
So I think that's plenty of evidence the court relied upon in terms of describing the histories of violent criminal history.

[00:14:03] Speaker 02:
But let's say that the court did, in fact, rely upon it.

[00:14:08] Speaker 02:
Would that have, I guess, either have been a logical or been some sort of procedural error?

[00:14:15] Speaker 00:
I don't think so, Your Honor.

[00:14:17] Speaker 00:
I think as an initial matter, it could have been considered in the first sentencing.

[00:14:21] Speaker 00:
I think on the record, the court did find it by proponents of the evidence before noting it didn't need to consider it.

[00:14:27] Speaker 00:
And there's some case law that supports that position, that you can consider conduct on a dismissed account as relevant conduct at sentencing.

[00:14:35] Speaker 00:
And I think, you know, further, the PSR is an adversarial process.

[00:14:39] Speaker 00:
The defendant objected.

[00:14:40] Speaker 00:
The probation office responded.

[00:14:42] Speaker 00:
The court ruled on the record.

[00:14:44] Speaker 00:
And it was, as was just noted, on the compassionate release motion, it wasn't addressed in the reply brief by the appellant.

[00:14:52] Speaker 00:
So I think there's no error there.

[00:14:57] Speaker 00:
Another point that's mentioned a lot in the appellant's brief is talk about static factors and giving too much weight or too little weight to certain factors.

[00:15:06] Speaker 00:
I would submit that's not an abrasive discretion review of a compassionate release order.

[00:15:11] Speaker 00:
That's a de novo reweighing of a factor test.

[00:15:14] Speaker 00:
I think that's not the proper standard here.

[00:15:17] Speaker 00:
Further, I think there are issues with treating certain factors as static.

[00:15:22] Speaker 00:
That strays too much into rigid mathematical formula which

[00:15:27] Speaker 00:
Supreme Court rejected in Gall as being incompatible with the 3553A factors.

[00:15:33] Speaker 00:
We cite the Gall case on page 12 of our brief.

[00:15:37] Speaker 00:
So I think the dispute on the static versus non-static factors really is about whether questioning how the court would weigh the 3553A factors present day and get a different sentence than what the appellant is suggesting due to mathematical formula.

[00:15:56] Speaker 00:
I think the response to that is the 3553A factors are dynamic, they're relative, they can change over time, and that's what happened in this case.

[00:16:06] Speaker 00:
Originally, the guideline sentence was 470 months to 497 months, obviously a massive guideline range.

[00:16:13] Speaker 00:
And that was the largest factor in the factor test.

[00:16:16] Speaker 00:
That's a factor under 3553A4, is the actual guideline range.

[00:16:21] Speaker 00:
And so that factor outweighed the importance of the criminal history and the offense conduct at that time,

[00:16:27] Speaker 00:
But now, when the guideline range decreases down to 230 months, the importance of that factor also decreases.

[00:16:34] Speaker 00:
And what's left is the most important factors of the criminal history and the offense content in this case.

[00:16:40] Speaker 04:
When you say the guideline range decreases down to 230 months, tell me how you get there.

[00:16:48] Speaker 00:
I think that's due to, again, the argument the Pell is making in the compassionate release motion that there was a change in the law.

[00:16:55] Speaker 04:
Right.

[00:16:56] Speaker 04:
But no, I understand the argument he's made.

[00:16:58] Speaker 04:
I just, I ask the same question to your friend.

[00:17:00] Speaker 04:
Do I know what the guideline range is for resentencing?

[00:17:06] Speaker 04:
I know there's no mandatory, I know the mandatory minimum is different.

[00:17:10] Speaker 04:
Do I know what the guideline range is?

[00:17:12] Speaker 04:
Just focus on the drug charge for a moment.

[00:17:16] Speaker 04:
Can I tell from this record what the guideline range is?

[00:17:18] Speaker 00:
I don't think there is a hard document from the probation office discussing the analysis behind that, but the court did assume that would sort of be the rough math of the criminal history category and the offense conduct.

[00:17:30] Speaker 00:
I think that's the question of the Supreme Court on that issue about what does the court mean exactly by saying if the defendant were sentenced today.

[00:17:40] Speaker 00:
I take that to mean that's the first step in the compassionate release analysis.

[00:17:43] Speaker 00:
It's accepting the arguments made by the appellant.

[00:17:46] Speaker 00:
that there was a change in the law.

[00:17:48] Speaker 00:
You should consider that as an extraordinary compelling reason to go into the 3553.

[00:17:53] Speaker 04:
Yes, I thought that related to the first prong of the test.

[00:17:59] Speaker 04:
The record is just not clear enough, this is why I'm asking.

[00:18:01] Speaker 04:
I don't know that the judge said so.

[00:18:04] Speaker 04:
If I were sentencing you today, here would be the guideline range, and that's what it would be.

[00:18:10] Speaker 04:
I think the judge did say, in order to consider whether or not this is an extraordinary and compelling circumstance, you could have gotten as little as 10 years.

[00:18:20] Speaker 04:
Five and five?

[00:18:21] Speaker 00:
I'd agree with that.

[00:18:22] Speaker 00:
It's sort of accepting the appellant's argument for the sake of argument to go on to the second step, yes.

[00:18:28] Speaker 00:
I think to compare the first and second step, again, the first is really just a rough approximation of what

[00:18:33] Speaker 00:
the guidelines come out to, right?

[00:18:35] Speaker 00:
And that is very quick and easy and simple to do.

[00:18:40] Speaker 00:
The second step is the 3553 factor test.

[00:18:43] Speaker 00:
That's a holistic viewing of the defendant at the day of sentencing, much more complicated.

[00:18:49] Speaker 00:
That is where all the institutional knowledge the district court has of the case and the defendant comes into play, and is the reason for having discretion for the district court in its weighing of the factors, and also why this court has mentioned giving deference to sentencing findings

[00:19:02] Speaker 00:
In cases such as Autry, we cite that on page 12 of our brief, as well as the Gall decision in the Supreme Court.

[00:19:08] Speaker 00:
Gall talks about how a court of appeals finding a different sentence to be appropriate is insufficient for the abuse of discretion standard.

[00:19:16] Speaker 04:
Let me ask you one other question.

[00:19:19] Speaker 04:
How can I tell how the judge arrived at six years?

[00:19:23] Speaker 04:
Normally when somebody's sentenced, I know this is a resentencing compassionate release, the judge says, let me give you my reasoning and this is the sentence I arrived at.

[00:19:32] Speaker 04:
It has something of a notion as I look at this.

[00:19:37] Speaker 04:
Well, I'm going to give you some time off your sentence.

[00:19:40] Speaker 04:
Six seems about right.

[00:19:42] Speaker 04:
I don't see any reasoning that leads to that specific number as opposed to a reasoning that rejects your friend's argument that he ought to be released that day.

[00:19:52] Speaker 04:
Is that necessary?

[00:19:54] Speaker 00:
I do not think it's necessary honor to lay out full treatise with all the details.

[00:19:58] Speaker 00:
This is exactly why six years reduction is appropriate.

[00:20:01] Speaker 00:
I think what we saw here is at least four pages of analysis to the factor test more than sufficient.

[00:20:07] Speaker 00:
Again, it's very hard for this record to describe all the detailed knowledge it has.

[00:20:12] Speaker 03:
The defendant brings emotion under Section 403 or Section 404 at the first step back.

[00:20:21] Speaker 00:
I think it does matter.

[00:20:23] Speaker 00:
I typically reference those sections, Your Honor, by the, I believe, the Convocation at 3582.

[00:20:29] Speaker 00:
Maybe that's what you're talking about as well.

[00:20:31] Speaker 00:
I believe one has to do with a retroactive change, the other does not.

[00:20:35] Speaker 00:
I think that's a crucial fact.

[00:20:37] Speaker 00:
The Johnson decision actually is distinguishable for that reason.

[00:20:40] Speaker 00:
It was having to do with 3582C1B, not C1A, which is compassionate release.

[00:20:46] Speaker 00:
C1B, again, it's about a reduction expressly permitted by statute.

[00:20:51] Speaker 00:
That's a retroactive change.

[00:20:53] Speaker 00:
So in my interpretation is the district court in that situation would have less discretion to come off of the change that Congress has mandated versus uncompassionate release.

[00:21:02] Speaker 00:
There is no change.

[00:21:03] Speaker 00:
The court's just considering it as part of extraordinary and compelling reasons.

[00:21:06] Speaker 04:
Well, if it was a 404, this would be a complete resentencing, right?

[00:21:11] Speaker 04:
You would get a pre-sentence report.

[00:21:13] Speaker 04:
You'd calculate the guidelines, and you'd have to calculate the sentence, correct?

[00:21:18] Speaker 00:
I'm not sure, Your Honor, but out of my expertise there.

[00:21:20] Speaker 04:
Yeah, but the act is retroactive, and therefore the.

[00:21:26] Speaker 00:
Yeah, entirely possible.

[00:21:26] Speaker 00:
There would be a more holistic viewing and analysis from the probation office on that as well.

[00:21:31] Speaker 00:
Why not 10 seconds to wrap up your honor if there's no further questions there don't appear to be additional questions.

[00:21:36] Speaker 01:
Thank you for your argument Thank you I'd like to follow up on one thing that your honor said specifically when I thought about this case and where this number six years came from I

[00:21:56] Speaker 01:
My gut instinct was it was like taking a hat and just putting some numbers in a hat and being like, let me just pick a number.

[00:22:05] Speaker 01:
It was very difficult to tell where that six came from, as opposed to six.

[00:22:09] Speaker 04:
What if he came up with zero?

[00:22:11] Speaker 04:
What if he looked at this record and said, hey, you know, you've done a couple good things since, and this is a good reason to look at it again.

[00:22:19] Speaker 04:
But now that I look at it again, you know,

[00:22:23] Speaker 04:
You're a bad guy, and I'm going to give you the original sentence again.

[00:22:28] Speaker 04:
Could you come to hear and argue that he had abused his discretion?

[00:22:32] Speaker 01:
Yes, because even though it's a less stringent standard than substantively unreasonable, as in Johnson, the issue is still the same.

[00:22:43] Speaker 01:
My co-counsel here or opposing counsel here is correct.

[00:22:46] Speaker 01:
Factors are dynamic.

[00:22:48] Speaker 01:
The only thing that changed here was post-defense rehabilitation, which was exemplary, including a letter that came... Well, I guess I'm going to push back.

[00:22:56] Speaker 03:
It would seem to me there could be circumstances where the person gets to come back, gets to ask for a change, but like what Judge Hurwitz said, you know, hey,

[00:23:06] Speaker 03:
What you did was really bad, you're a bad person, you're a danger to all of the above, and I'm not changing it.

[00:23:14] Speaker 03:
I don't think it's automatically an abuse of discretion.

[00:23:17] Speaker 03:
Do you have a case that says if you don't get a reduction, it's an abuse of discretion?

[00:23:24] Speaker 01:
Not outright, because every case is different on its individual circumstances.

[00:23:28] Speaker 01:
Right.

[00:23:28] Speaker 03:
So there could be a case where someone got nothing.

[00:23:32] Speaker 03:
and it's not an abuse and there could be a case where someone got out that day and it's not an abuse.

[00:23:39] Speaker 01:
There could be, but that's not this case, because the only changes are the almost 20 years Mr. Galindo has served.

[00:23:47] Speaker 01:
He's now advanced age, an individual's age out of crime, that's statistically shown, and he's done extraordinary rehabilitation.

[00:23:56] Speaker 01:
And as per Chen, the changes in the stack 924C account for what the guidelines would be, account for the nature and circumstances of the offense.

[00:24:07] Speaker 01:
So all of those changes include— You've gone over your overtime, so wrap it up in 30 seconds.

[00:24:12] Speaker 01:
Thank you, Your Honor.

[00:24:13] Speaker 01:
We still feel that the six years was in the least arbitrary, not supported by the record in this case.

[00:24:21] Speaker 01:
The reweighing constituted an abuse of discretion under any standard for the reasons that we stated, and we ask that this case respectfully be remanded.

[00:24:29] Speaker 01:
Thank you.

[00:24:30] Speaker 04:
Ms.

[00:24:30] Speaker 04:
Callahan, can I ask you a question?

[00:24:31] Speaker 01:
Oh, sure.

[00:24:31] Speaker 04:
And I think this is an easy question to answer.

[00:24:33] Speaker 04:
Maybe I'll—

[00:24:35] Speaker 04:
I haven't been able to find any case involving a 403 sentencing in which a court of appeals has held that a judge abused his discretion by reducing the sentence not enough, by less than what the person wanted.

[00:24:53] Speaker 04:
Do you know of such a case?

[00:24:54] Speaker 01:
The case that we cited was a 403.

[00:24:57] Speaker 01:
I believe the Johnson case was a 404.

[00:24:59] Speaker 04:
404, right?

[00:25:01] Speaker 04:
Or did I have the two mixed up?

[00:25:02] Speaker 01:
Johnson was a 404.

[00:25:03] Speaker 04:
Right.

[00:25:04] Speaker 04:
Is there a 403 case?

[00:25:09] Speaker 01:
Johnson was a 403.

[00:25:10] Speaker 04:
I'm sorry, is there a 404 case?

[00:25:15] Speaker 01:
You didn't cite one in your brief.

[00:25:18] Speaker 01:
The answer is I don't know.

[00:25:19] Speaker 04:
I couldn't find one.

[00:25:20] Speaker 04:
Thank you.

[00:25:20] Speaker 04:
That's it.

[00:25:21] Speaker 04:
I just wanted to make sure.

[00:25:22] Speaker 04:
I thought Johnson was a four.

[00:25:23] Speaker 04:
Yeah, I mean, I think we have the numbers reversed.

[00:25:26] Speaker 04:
Yeah, yeah, yeah.

[00:25:27] Speaker 04:
But without regard to the numbers, I'm just trying to find a case where it's a compassionate release motion, and the judge reduced the sentence less than the defendant wanted, and a court of appeals has said you abused your discretion.

[00:25:43] Speaker 01:
The answer is, I don't know.

[00:25:44] Speaker 01:
And I know that.

[00:25:46] Speaker 04:
And if you're a good lawyer, so if you had found one, you would have let us know.

[00:25:49] Speaker 01:
I would have let you know.

[00:25:49] Speaker 04:
I couldn't find one.

[00:25:50] Speaker 04:
That's why I'm asking.

[00:25:52] Speaker 03:
Thank you.

[00:25:52] Speaker 03:
All right.

[00:25:53] Speaker 03:
Thank you both for your argument.

[00:25:54] Speaker 03:
This case will stand submitted.