[00:00:01] Speaker 06: All rise. [00:01:07] Speaker 11: May it please the court, counsel, and the key. [00:01:14] Speaker 11: This court has a very clear legal principle, and that is the government may not superficially abide by its terms or promise to recommend a particular sentence while doing so making statements that serve no purpose, practical purpose, but to advocate for a harsher sentence. [00:01:35] Speaker 11: And in this case, [00:01:43] Speaker 11: since Heredia. [00:02:09] Speaker 11: mixed law in this area. [00:02:11] Speaker 11: In fact, I believe Michela makes the law in this circuit absolutely clear. [00:02:19] Speaker 11: And what I mean by that is that Michela was a case that had, as the dissent pointed out, Judge Bennett, had similar components in this case. [00:02:32] Speaker 11: One is that the government had to recommend no more than a low end of a sentence [00:02:41] Speaker 11: defendant could argue for a lesser sentence. [00:02:45] Speaker 11: The only distinction in Michelle is there was a specific term in that plea agreement that allowed the government to argue against or oppose the downward variance. [00:02:55] Speaker 11: There is no such provision in this case. [00:02:58] Speaker 11: And I think that's important because what Michelle says is that [00:03:15] Speaker 11: at sentencing were directed to the specific [00:04:22] Speaker 11: Playroom started to be read as a whole, not in isolation. [00:04:26] Speaker 03: But as a whole, what Judge Bennett's positing is there was this deal, right, and you all came in – I don't know if it was you or not, but anyway, the defense came in and argued for a greater leniency. [00:04:38] Speaker 03: So why is it impermissible for the government to respond to that? [00:04:41] Speaker 03: For providing they stuck to the deal, of course. [00:04:44] Speaker 03: They still have to make the recommendations for any of that. [00:04:54] Speaker 11: their duty under the plea agreement to argue a sentence not in excess of the guidelines. [00:05:02] Speaker 11: That violates this plea agreement. [00:05:04] Speaker 11: It violates the law. [00:05:05] Speaker 11: If the facts that are being included in the government's memorandum undercut the low-end recommendation, and the best example they're relevant [00:06:04] Speaker 11: Yes, they included inflammatory arguments, additional information that had nothing to do with this particular case, and as the case law says, in an effort [00:06:34] Speaker 03: So let's use that as an example. [00:06:37] Speaker 03: So that would take us back to Judge Smith. [00:06:55] Speaker 03: Wait a minute, so we're positing there's an error. [00:06:57] Speaker 03: Let's say one of these sentences in the transcript goes across the line. [00:07:03] Speaker 03: I'm just positing that as a hypothetical. [00:07:05] Speaker 03: There wasn't an objection, right? [00:07:07] Speaker 03: So you're going to have to show us plain error, isn't that right? [00:07:09] Speaker 11: That's true. [00:07:10] Speaker 11: Okay. [00:07:11] Speaker 11: Yes. [00:07:41] Speaker 11: prong of plain error review also will have, often, some bite in the playground cases. [00:07:47] Speaker 11: Not all breaches will be clear or obvious. [00:07:51] Speaker 11: Play agreements are not always models of draftsmanship, so the scope of the government's commitments will, on occasion, be open to doubt. [00:07:59] Speaker 11: There's no doubt in this [00:08:18] Speaker 05: permissible for the government to invoke to rebut the [00:08:56] Speaker 05: could have come forward with. [00:08:58] Speaker 11: We believe the defendant's recommendation is too low because the low end fulfills the goals of the sentencing just like they did in Michelle. [00:09:07] Speaker 00: So if the government had simply referenced the defendant's requested downward departure in talking to the court about why they disagreed and had said the defendant's request for a downward departure isn't appropriate for these reasons [00:09:30] Speaker 00: lower end of the range, that would be okay. [00:09:35] Speaker 00: Because they're both referencing the fact that they're responding to the requested downward departure and also reiterating [00:09:55] Speaker 11: a plain yes. [00:09:57] Speaker 00: It seems to me that by referencing the downward departure that the defendant is seeking specifically in responding to the question and then reiterating the sentence that the plea agreement required them to make, that sort of resolves the other issues that you're talking about and it would be a fair response. [00:10:15] Speaker 00: Isn't the answer to my question a simple yes? [00:10:19] Speaker 11: I don't believe so because there's, is it fair to [00:10:46] Speaker 11: is that the remarks made by the U.S. [00:10:49] Speaker 11: Attorney in the memorandum, Assistant U.S. [00:10:52] Speaker 11: Attorney in the memorandum and at sentencing were not directed at the specific objective identified in the plea agreement or permitted in the plea agreement. [00:11:04] Speaker 06: So I understand your answer to be something like it's not actually reasonable to say we're arguing for the low end of the guidelines by saying [00:11:19] Speaker 06: If that's true and that's your argument, what in Michelle told us that? [00:11:24] Speaker 06: I'm really having trouble understanding how we wouldn't be articulating a new rule by saying that today. [00:11:33] Speaker 11: We're not articulating a new rule because the new rule is based on the legal principle at play. [00:11:46] Speaker 11: The one thing that doesn't vary whatsoever is that when the government makes a promise that induces a defendant to take a plea agreement, that promise must be fulfilled. [00:11:58] Speaker 11: So the circumstances will vary, but the legal principle is never going to vary. [00:12:02] Speaker 11: This court for 25 years has carved out the legal principles that apply in these situations, and it's the legal principle that's at play, not the varying facts. [00:12:12] Speaker 11: So the legal principle is, [00:12:25] Speaker 11: In fact, in this case, the government literally used facts that were not in addition to that. [00:12:35] Speaker 07: So on that point, your friend, who's going to be arguing in a couple of minutes at this page 9 of their brief, a prosecutor cannot bring up aggravating information that the court already [00:13:34] Speaker 11: to the 90s and massive amounts of drugs. [00:14:52] Speaker 11: by looking at the specific term of the claimant and what is the... I mean, and the law. [00:14:58] Speaker ?: The law's not clear. [00:15:00] Speaker ?: You're arguing to make it so that the government can't say anything that's in the record. [00:15:04] Speaker 11: You've got to just say, you know, we agree that it's a great deal. [00:15:06] Speaker 11: I'm not conceding the law isn't clear. [00:15:09] Speaker 11: Okay. [00:15:09] Speaker 11: I'm saying that the varying facts that apply to the principal [00:15:26] Speaker 09: And that's what he thinks is odd. [00:16:23] Speaker 11: is for a low-end sentence, no sentence in excess of. [00:16:29] Speaker 11: So what I have done in looking at this, I have looked at it as though that term in the Playroom, it didn't exist, that the government was allowed to ask for whatever sentence [00:16:52] Speaker 11: the judge could possibly give him, including analogizing his conduct to a small-time dealer in the Fifth Circuit case that got a life sentence, putting him at the top of the chain, putting him at the top of culpability, saying to the judge at the sentencing hearing, there's nothing that will stop him from going back to this role in the future. [00:18:06] Speaker 12: like the first address. [00:18:39] Speaker 09: beyond us in this situation. [00:18:41] Speaker 12: The legal rule, well obviously this is on long court, but the legal rule that's critical in Whitney is the government can't superficially abide by its promise but then provide information that contradicts that and even in a response and Whitney is a response case. [00:19:00] Speaker 12: In that case [00:19:07] Speaker 12: counsel and said, he's not a good thief. [00:19:10] Speaker 12: The prosecutor then came on and said, yes, he is a good thief. [00:19:13] Speaker 12: And in that context, allowed or provided a whole bunch of information from the PSR. [00:19:18] Speaker 12: It was that context of how it was not a proper response is what constituted the breach. [00:19:25] Speaker 12: Just saying low end at that point was superficial. [00:19:28] Speaker 06: But the defendant there wasn't arguing for a lower sentence than had been agreed? [00:19:33] Speaker 12: Functionally, yes. [00:20:49] Speaker 12: provide information clause as a way to get around its low recommendation clause. [00:20:56] Speaker 12: Meaning they can't just say, oh, we're allowed to provide information, so we're gonna provide whatever it's allowed to provide. [00:21:32] Speaker 12: I think that can be read in context and if this is a non-bomb court to at least make some clarification on that of you can provide facts in a specific argument against meaning if the government is indeed saying [00:21:54] Speaker 12: facts in the PSR Council you shouldn't go down as low as that or if they change that around some and said that our recommendation is 51 months and you shouldn't go lower than that because and mention some facts but that's the problem here there was absolutely no context [00:22:24] Speaker 12: and some facts that just basically recommended a recommendation that would be the high end or even above. [00:22:34] Speaker ?: Why do we think that? [00:22:35] Speaker 10: I mean, the facts that they presented, and I think the USA said at one point that a long period of incarceration is necessary, right? [00:22:43] Speaker 10: About 151 months is a long period of incarceration, right? [00:23:16] Speaker 12: Why should we draw that influence? [00:23:43] Speaker 12: point here is they are telling the court or what we've bargained for? [00:23:47] Speaker 10: I mean, I'm not sure if that really makes sense in an advisory guidelines regime where the court is free to go above or below the guidelines based on its assessment of the 3553 factors, right? [00:24:00] Speaker 10: So when the defendant is there saying, you know, defense is not that serious, my personal [00:24:16] Speaker 10: So you should not accept the recommendation of the defendant. [00:24:20] Speaker 12: I've been practicing in district courts and appellate courts for over 28 years, pre-booker, post-booker. [00:24:26] Speaker 12: And a low-admit recommendation really means something to judges in the district court. [00:24:31] Speaker 12: They generally sentence at or below what the government recommends. [00:24:41] Speaker 12: government has provided, what they didn't provide in there. [00:24:44] Speaker 12: But if you go look at it, that a court varies below a government recommendation only in about 13% of the time throughout the Ninth Circuit. [00:24:52] Speaker 12: I think it's about 18% in the Eastern District of Washington. [00:24:57] Speaker 12: So it's not this free-for-all post-Booker. [00:25:00] Speaker 12: The guideline, the generally judges sentence within the guideline range, or they go lower because of a government motion to go lower. [00:26:02] Speaker 12: allow the government to respond in a way that contradicted its low-end recommendation. [00:26:08] Speaker 03: But it's not about the purpose, right? [00:26:10] Speaker 03: It's about the purpose. [00:26:10] Speaker 03: Yes. [00:26:10] Speaker 03: It's not about the specific facts the government would like to speak or not speak that are in the PSR or not. [00:26:16] Speaker 03: It's the purpose for which the government is invoking those provisions, right? [00:26:20] Speaker 03: Yes. [00:26:21] Speaker 03: And as – I'm sorry. [00:26:22] Speaker 03: So it just seems to me to me when I read this transcript that one thing that's happening – and maybe you think I'm reading too much into it. [00:26:31] Speaker 03: which is effectively raising his eyebrow, because there's this really serious conduct over a very extended period of time. [00:26:37] Speaker 03: And the prosecutor's responding in part to say, we've looked at it, we've sort of huddled in-house, we recognize this is very serious conduct. [00:26:46] Speaker 03: We also recognize he's got this disability. [00:26:49] Speaker 03: So in other words, the purpose, part of what the prosecutor's doing, I think it's incumbent upon the prosecutor to do, is to defend the recommendation. [00:26:57] Speaker 03: Is that a fair reading? [00:26:59] Speaker 03: It's sort of a follow-up of what Judge Miller is asking. [00:27:02] Speaker 03: Why isn't that a fair inference? [00:27:04] Speaker 12: I don't think it's fair. [00:27:06] Speaker 12: That's not the inference that the original panel took, and I don't think it's a fair inference on this. [00:27:28] Speaker 12: And so it comes all the way back to what takes us across, for me it does, what takes us across the line to plain error. [00:28:13] Speaker 03: to the government to say, why is this a good idea? [00:28:16] Speaker 12: Correct. [00:28:16] Speaker 12: They led with – I mean, if you look at their sentencing memorandum, they say, we recommend the low end and then went for pages on reasons to go high end or above with nothing mitigating. [00:28:28] Speaker 03: At that point, did the government – if I put all of the record in chronological order, at that point, had the defendant made plain that it was also good in requesting something below the low end? [00:28:39] Speaker 12: Yes. [00:28:40] Speaker 12: At the point of the – my understanding [00:29:01] Speaker 03: My question with a minute ago was that I should find these, the cringe-worthy comments, if there are some, to have been impermissible because the government led with the, my notes, correct them if I've got it wrong, are that the chronology is such that the government was indeed [00:29:20] Speaker 12: responding to a six level request for a departure. [00:29:25] Speaker 12: But their low end and the information they're providing about this are directed to where the sentencing should fall within the range. [00:29:35] Speaker 12: They weren't directed to should this be a six level or three level departure. [00:29:39] Speaker 12: They were providing pretty much 3553A factors that- [00:29:59] Speaker 12: in prison. [00:30:01] Speaker 12: Maybe some would have been relevant and maybe some if you made the contacts. [00:30:06] Speaker 12: Well I don't think it's relevant to cite a Fifth Circuit case that is upholding a life sentence for a low-level drug dealer and then quoting from it and making the comparison that drug dealers are worse than murderers and more like vampires. [00:30:21] Speaker 12: That is completely irrelevant. [00:30:31] Speaker 12: while you're seeking that big number. [00:30:33] Speaker 12: Exactly. [00:30:33] Speaker 12: But the guidelines account for the big number already. [00:30:36] Speaker 12: The guidelines were at a certain level. [00:30:38] Speaker 03: I think that's a good way to comment. [00:30:39] Speaker 03: That's one of the comments. [00:30:41] Speaker 03: That's one of the things the government asserted, what you think goes across the line. [00:30:46] Speaker 03: This does more than defend the deal, the 151 months. [00:30:49] Speaker 03: And you think it goes across the line. [00:30:51] Speaker 03: And I think you have to show why that's a plain error. [00:30:53] Speaker 12: That's plain error because the practical purpose, that's the court's rule. [00:31:06] Speaker 12: or is it more consistent with undermining that recommendation? [00:31:11] Speaker 12: And providing in this context, providing all that information was undermining the recommendation. [00:31:17] Speaker 03: So I'm going to stop because I think what you're saying, I just want to get this, put a bow on it, right? [00:31:21] Speaker 03: What you're saying is that you fill in some of the comments that were extreme and you've identified one right now. [00:32:01] Speaker 03: that it is extreme enough that the purpose was to undo the deal. [00:32:07] Speaker 12: That is to influence the judge to give a higher sentence than the low end of the plea agreement. [00:32:12] Speaker 12: Yes, yes, yes. [00:32:13] Speaker 12: Of degree? [00:32:16] Speaker 05: Uh-huh. [00:32:16] Speaker 05: Mr. Graf, I'll just put this before you sit down. [00:32:17] Speaker 05: So if there had not been the reference to the book and the Fifth Circuit case, do you think the government still breached the plea agreement? [00:32:29] Speaker 12: of forms of conduct here, that is one. [00:32:32] Speaker 12: And in the way that they were in the sentencing memorandum and at sentencing saying that Mr. Farias was at the top of culpability, that is implying not just this, in this range it should be the low culpability, but they [00:32:52] Speaker 12: information from the PSR, and then finally, the comments about how this had been a much discussion. [00:32:59] Speaker 12: And I think the reasonable reading of that discussion is that the prosecutors did not agree about how low this sentence was, and that's what the debate was, that no one within the prosecutor's [00:33:45] Speaker 01: of the United States. [00:33:47] Speaker 01: We are asking the court to hold at Prom 1 that there was no error, but at a minimum that the error was not plain and not prejudicial. [00:33:55] Speaker 01: I'm hoping to cover on the question of breach of error, first what the legal rule were proposing, because the court is sitting en banc, and then turn to some of the factual matters that you've been addressing with opposing counsel. [00:34:06] Speaker 01: I do want to return to Judge Christian's point about the [00:34:24] Speaker 01: decision here with his prior cases without overruling any of them is to recognize that this is an instance in which the plea agreement allowed the defendant to request a sentence below the one the government had promised to recommend and did not prohibit the government from responding to that. [00:34:42] Speaker 01: Mochella in some ways may be an easier case for us for the government because you have a specific clause in that, but that just raises the question of what is the default rule in these circumstances. [00:34:52] Speaker 01: We've looked to the First Circuit case [00:34:56] Speaker 01: The tenth circuit has the same rule. [00:34:58] Speaker 01: I'm not aware of any circuit that has a rule saying default in those situations. [00:35:27] Speaker 08: This is just nothing at all. [00:35:29] Speaker 01: No, but that's not what I'm trying to say, Your Honor. [00:35:31] Speaker 01: I appreciate the chance to clarify that. [00:35:33] Speaker 01: I do think we tried to say in our brief some version of what Mr. Brumka just said, like what the First Circuit uses, taken into totality. [00:36:37] Speaker 08: I guess constitute an end run around, and I understand the providing formation provision there, but is that an end run around the agreement not to recommend above the low end? [00:36:52] Speaker 01: I don't think it is here, and I would agree with your honor that, and I think this is maybe some of Judge Desai's questions once this as well. [00:37:07] Speaker 01: doesn't signal that you're being responsive, some message may get lost and that makes it a harder case for us. [00:37:13] Speaker 01: If the prosecutor had said those things, I think this would be a much easier case and the panel's reaction to it may have been different. [00:37:19] Speaker 01: So those are, I think, are kind of sufficient criteria and sufficient guidance you can give, but I don't think it's necessary. [00:37:37] Speaker 03: this would be a very different argument. [00:37:39] Speaker 01: I think that's right. [00:37:40] Speaker 01: I think that you're right, Your Honor. [00:37:41] Speaker 01: I think some of these remarks I think are, I should say, I think the sentencing memo is, I don't actually think the processor did anything wrong at the hearing. [00:37:48] Speaker 01: The sentencing memo is close to the line, I would acknowledge that. [00:37:51] Speaker 01: But I do think the plan error rule serves [00:38:13] Speaker 01: try to induce timely objections. [00:38:15] Speaker 01: And I think, if I can just jump ahead for one second, the Gonsi case from the First Circuit cited by both the federal defenders and Mr. Hormel, I think is kind of exhibit A for what happens when a defendant objects. [00:38:26] Speaker 01: That's a case that bears, I think, some similarities here. [00:38:29] Speaker 01: But what happened was the prosecutor was going on and on. [00:38:32] Speaker ?: The district court interjected on objection. [00:38:34] Speaker 01: And it made a finding that no reasonable observer hearing the prosecutor's argument would think that she was supporting [00:38:42] Speaker 01: from the district court making an on-the-spot assessment of what seemed obvious. [00:38:47] Speaker 01: You don't have that here. [00:38:48] Speaker 01: And so I think part of the problem is appellate courts are always going to be reviewing cold records. [00:38:53] Speaker 01: And if no facts are found, no one's making a finding about tone and depth as the words the court used at Heredia, I think that weakens the appellate review process. [00:39:02] Speaker 01: So I think the plain error problem, too, should do work here. [00:39:05] Speaker 01: The court should make clear it is important to object. [00:39:07] Speaker 01: If counsel thinks it's borderline, bring that to the district court's attention. [00:39:18] Speaker 01: Well, if the district court didn't find a breach, we disagree. [00:39:21] Speaker 01: The judge said in any event, everyone just wasn't influenced by that. [00:39:23] Speaker 01: But understand to bellow, that doesn't matter. [00:39:25] Speaker 01: It goes back anyway. [00:39:37] Speaker 01: on when it comes to appellate review. [00:39:41] Speaker 01: So I do acknowledge, Judge Christian, some of the comments here. [00:39:44] Speaker 01: I'm not sure I would use cringeworthy. [00:39:45] Speaker 01: That's your honor, sir. [00:39:46] Speaker 03: But what would you use? [00:39:47] Speaker 03: I just want to – and I'm not trying to be cute, but I do want to know. [00:39:50] Speaker 03: Time site's always 20-20. [00:39:51] Speaker 03: Yeah. [00:39:51] Speaker 03: But I do want to be clear. [00:39:52] Speaker 03: Your responses have been helpful to me. [00:39:54] Speaker 03: I just want to be clear about whether or not the government's position is that there were – that this was all in bounds. [00:40:02] Speaker 03: Are you defending all the representations made by the government? [00:40:06] Speaker 03: I understand you're [00:40:09] Speaker 01: no absolutely I think they were all in bounds but I would I would view the dreamland and the statistics as closer to the line that's how it's I would say they were probably ill-advised and in retrospect I think they may have been unnecessary because again we don't know [00:40:38] Speaker 01: had a certain reaction to this case. [00:40:41] Speaker 01: And so if I could jump ahead to kind of reasonable inferences to be drawn from the record, some of this is in the sealed materials, so I don't want to tread on that. [00:40:49] Speaker 01: But I do want to address the point about much discussion in the office. [00:40:52] Speaker 01: I think that, to my mind, colored the way the three-judge panel viewed this case. [00:40:56] Speaker 01: And I do not think it's fair, as Mr. Branca said, he doesn't have the benefit maybe of some of these materials. [00:41:01] Speaker 01: I don't think it's fair to read that at all as signaling dissension in the office. [00:41:13] Speaker 01: The district court came in with an eyebrow raise, skeptical of the government's guidelines calculation. [00:41:19] Speaker 01: The government, the plea agreement was keyed to low end as calculated by the government. [00:41:24] Speaker 01: So the court came in skeptical of that. [00:41:43] Speaker 01: I think that comment was, I would say, ill-advised in retrospect, it was off the cuff. [00:41:47] Speaker 01: But it's quite clear to me in context that the government attorney was using that reference to support not to undermine the government's recommendation. [00:41:57] Speaker 01: And just to be clear, given some of the arguments about what, I think, from Mr. Hormel about what would be in bounds, I think the government was doing. [00:42:17] Speaker 01: I think the idea was... [00:42:41] Speaker 01: The point is just how they would have been perceived by the district judge. [00:42:44] Speaker 01: And I think that's equally a plausible reading to saying everyone wanted to go higher, but someone persuaded them to go lower. [00:42:50] Speaker 01: So go back to 151. [00:42:51] Speaker 01: And so I just want to point out to the court. [00:42:53] Speaker 00: I hear what you're saying, and let me just repeat this. [00:42:55] Speaker 00: So I think what you're saying is that at the very start of the hearing, when the judge articulates some concern, the response to that from the AUSA is, look, there was a lot of discussion. [00:43:08] Speaker 00: the recommendation that we did. [00:43:09] Speaker 00: Is that a fair yes restatement of what you're saying? [00:43:14] Speaker 00: And then later, after the defendant has an opportunity to request a downward departure, that's when the AUSA really goes into all this other stuff. [00:43:24] Speaker 00: But on page 77 of the ER, she again says in her office, and this is actually what causes the court to inquire further, [00:43:35] Speaker 00: and makes that same statement. [00:43:37] Speaker 00: It doesn't make sense. [00:43:38] Speaker 00: What you're saying doesn't entirely make sense factually because if the response to the judge's concerns about whether the sentence recommendation was high enough was, hey, look, we had a lot of conversation in the office and we ultimately recommended this, then why say that again in response to the defendant's comment [00:44:12] Speaker 01: that we had this conversation for two opposite purposes. [00:44:51] Speaker 01: on 78, we can compare and contrast that to someone who has very significant and undeniable physical limitations and concerns. [00:44:59] Speaker 01: So was that model advocacy? [00:45:24] Speaker 01: to get the benefit of the record, the benefit of those inferences on plain error review. [00:45:29] Speaker 06: Can I ask you then about the comparison to murderers? [00:45:33] Speaker 06: And would there be any problem with our court clarifying in this case that if you're arguing for the low end of a range, and it would be about 10 years or so, you shouldn't be saying this is like a mass murderer? [00:45:52] Speaker 06: If we say it wasn't clear before, is there any problem with that? [00:45:56] Speaker 01: No, I think with the caveat that, you know, I view this as kind of a proportionality principle, right? [00:46:00] Speaker 01: I mean, so if you're cabining to the facts in this case saying that wasn't necessary, and I think for our dialogue earlier on the standard of, could this have any use other than [00:46:24] Speaker 01: the U.S.A. [00:46:24] Speaker 01: described the defendant as a cold-blooded killer in the Seventh Circuit, so kind of close to the line. [00:46:29] Speaker 01: Problematic because it could be misconstrued, but the U.S.A. [00:46:32] Speaker 01: paired that with the government's actual recommendation. [00:46:46] Speaker 01: there were prosecutors said, at a minimum, this would be appropriate, or put him away for as long as he can. [00:46:51] Speaker 05: So – The book, I think, adds some additional flair to this argument, but why would it be improper for the government to say this person was orchestrating a massive sale of drugs that are responsible for killing thousands of people across the United States and in this particular part of Washington? [00:47:10] Speaker 05: That seems like a legitimate argument. [00:47:12] Speaker 01: No, I do think it's a legitimate argument. [00:47:13] Speaker 01: I think my point is that we've argued this, right? [00:47:17] Speaker 01: The plea agreement says that we can introduce things that are relevant to sentencing. [00:47:22] Speaker 01: This information, especially the CDC statistics and information about the effects on the community of these particular drugs, right? [00:47:30] Speaker 01: Which is heroin, methamphetamine, and the book was a book about heroin and opioid addiction, I should say. [00:47:36] Speaker 01: But I understand the concern. [00:47:41] Speaker 01: And, you know, I will say this. [00:47:44] Speaker 01: I think the prosecutor was using that to make a rhetorical point. [00:47:46] Speaker 01: I think, you know, there's a dissent in that case. [00:47:48] Speaker 01: If you really start digging into it and saying, well, what did she really mean? [00:47:52] Speaker 01: We should be thinking of this guy as worse than a mass murderer. [00:47:54] Speaker 01: Well, there was a dissenting judge who thought, this is unconstitutional. [00:47:58] Speaker 01: So, I mean, I think the prosecutor was using that as a shorthand rhetorical point and not trying to wink and nod and say, give this guy life. [00:48:21] Speaker 01: that she does, writes the memo, doesn't know how the district court is going to perceive this information. [00:48:27] Speaker 03: I mean, some of the reason we included... You're reading an hostility to my question. [00:48:31] Speaker 03: It's not... I agree with you. [00:48:33] Speaker 01: Right. [00:48:33] Speaker 01: Right. [00:48:34] Speaker 01: But I guess I'm just saying, I think it's important to put yourself in the position of a prosecutor. [00:48:37] Speaker 01: And some of the questions from the bench, I think, have been helpful in recognizing that 150 [00:48:48] Speaker 01: The first circuit said, well, that's not really a problem because anyone would agree that a sentence at the bottom of a 135-151 range is a big sentence. [00:48:58] Speaker 01: The same is true of a 151-1 sentence for a defendant who is 50 years old. [00:49:30] Speaker 10: exactly she meant by these arguments. [00:49:33] Speaker 01: You might. [00:49:33] Speaker 01: And I think Puckett also recognizes the importance of that point, Your Honor, by explaining that some breaches can be cured. [00:49:41] Speaker 01: I should be candid with the court and say this court has been pretty strict about when breaches can be cured. [00:49:44] Speaker 01: So I don't want to suggest that in this particular case, if the court had felt like the district court had made findings and found breach and felt like the bell couldn't be unrung, maybe it still would have led to a resentencing before a different judge. [00:49:57] Speaker 01: But I do agree with you, Your Honor, Puckett. [00:50:17] Speaker 02: but cured or, well, if not cured, harmless because the court imposed the sentence anyway. [00:50:42] Speaker 01: is prone to plain error. [00:50:43] Speaker 01: If you find that that breach was clear and obvious under settled law that's prone to, then you can turn to the question of whether the breach affected the defendant's substantial rights. [00:50:54] Speaker 01: And you're right, Your Honor, that in the, especially in the Gonzalez-Elar case from this court, this court has looked to see whether the prosecutor's improper remarks influenced or affected the judge's sentence. [00:51:05] Speaker 01: And here, while- Why couldn't we consider that in determining whether or not the error was plain? [00:51:12] Speaker 01: Because I think plenary usually depends on the state of the governing law. [00:51:17] Speaker 02: And if the law precludes comments that would go outside the bounds of what the government has agreed to, and this infers that or implies that it did go outside because the court relied upon those comments. [00:51:37] Speaker 02: So why couldn't we use that to determine that the error was [00:51:52] Speaker 01: If you do that, you find they're improper, then the place to consider the district court's reliance on them would be at the third common. [00:51:58] Speaker 02: I don't agree. [00:51:59] Speaker 02: I think that we can look at that to see if the error was plain. [00:52:03] Speaker 02: If what happened here goes outside the bounds of what we have said is permissible in the law. [00:52:09] Speaker 01: Yeah, I agree with that, Your Honor, that yes, you can certainly look at the boundaries in this court's cases and just compare the prosecutors. [00:52:16] Speaker 01: I would agree with that. [00:52:18] Speaker 01: But, you know, if I do turn – I am happy to answer any questions the court has about the test we've proposed or – I have a question. [00:52:27] Speaker 12: You referenced the supplemental brief, page seven. [00:52:29] Speaker 12: There is a test that seems to be a little different on page one of your supplemental brief, which is that the argument can be understood in context only as supporting a harsher punishment. [00:52:47] Speaker 01: Yeah, I think so. [00:52:48] Speaker 01: Your Honor, I think we are trying to capture there kind of the second, you know, the end-run principle from the case law. [00:52:55] Speaker 01: And so I think it's essentially what I said before about being reasonably consistent with the government's obligations. [00:53:00] Speaker 01: My concern with a standard that asks a little bit more unforgivably, I guess I would say, about could anyone have understood [00:53:40] Speaker 01: I think the same is true. [00:53:41] Speaker 01: I would say the same is true. [00:53:42] Speaker 01: I think that we should be asking, not drawing the most nefarious inferences. [00:53:48] Speaker 01: A lot of this comes, of course, against the backdrop of a presumption of regularity that officers are complying with, officers of the court are complying with their obligations. [00:53:56] Speaker 01: So I don't think the court should reach out to police rhetoric. [00:54:09] Speaker 01: That's troubled members of the court. [00:54:11] Speaker 01: On the third prong of the Plenary Test, I guess I wanted to trip. [00:54:14] Speaker ?: Yes. [00:54:30] Speaker 01: Mondragon, Whitney, Johnson, Heredia involved a situation where the defendant was allowed to request leniency and the prosecutor was arguing in response to that. [00:54:41] Speaker 01: So even if you think the Mochela is distinguishable, I've per-year dialogued Judge Smith with defense counsel, if you think it's distinguishable because the playroom in here didn't have a specific clause that [00:54:56] Speaker 01: to the prosecutor has to cover. [00:54:58] Speaker 01: Why is my higher sentence justified and the defendant's not justified? [00:55:02] Speaker 01: The court hadn't spoken to that scenario. [00:55:05] Speaker 01: The only out-of-circuit cases that I've seen from the First Circuit, the Tenth Circuit, say the default rule of the prosecutor can respond within reasonable limits. [00:55:12] Speaker 02: But can the prosecutor respond in such a way as to elicit a sentence that is higher [00:55:37] Speaker 01: So you would agree that [00:55:56] Speaker 00: in a plea agreement like this one that allows the defendant to seek a downward departure and doesn't limit the prosecutor's response. [00:56:03] Speaker 00: The prosecutor can, in fact, respond, but there are limits, and that limit is that they can respond up to the agreed-upon sentence that the government recommended. [00:56:14] Speaker 01: They can, Your Honor, but I think the difficulty here, and this is a... I'm just asking about a general principle. [00:56:19] Speaker 01: General principle, yes, but the difficulty I think you run into is that the arguments that the prosecutors make in aggravation. [00:56:38] Speaker 00: But I keep the point that I'm trying to make, and by soliciting your response that you agree with this general principle, is that the prosecutor then has an obligation to at least inform the court that they are recommending the sentence that was agreed upon in the plea agreement. [00:56:53] Speaker 00: So if they're staying true to the agreement, even if it ultimately results in the court sentencing the defendant to a higher sentence, that doesn't violate this rule, as long as the [00:57:23] Speaker 02: If the prosecution, in this case, tie his comments in with his recommendation and say we, for these reasons, we stick with our recommendation rather than the law or sentence that the defendant is requesting, is that anywhere in the record? [00:57:39] Speaker 01: The prosecutor didn't do it that way, and that's why I tried to acknowledge on her that I think this would be an easier case for us, a stronger case for us, if she had done so. [00:57:45] Speaker 01: But I think context matters, and as I mentioned before, the sequence is important here. [00:57:49] Speaker 01: The defendant went first and went to the prosecutor referenced in her [00:57:55] Speaker 01: and said, and tried to basically parry that and say, but it hasn't stopped, right? [00:57:59] Speaker 01: That he's had these elements for many years, he's continued his bet. [00:58:02] Speaker 01: It was quite clear from context, that's what she was responding to. [00:58:04] Speaker 01: Coming out of the blue, that would have made no sense. [00:58:06] Speaker 01: Likewise, at the sentencing hearing, she didn't say, in response to the defense counsel's argument, we oppose a variance because. [00:58:12] Speaker 01: But it's quite clear that when she was referencing these significant physical elements and expressing the office's sympathy for them, I just spoke it. [00:58:33] Speaker 01: If I could just read one record excerpt, Your Honor, I do want to also make the point that while the prosecutor at the hearing did say we stand by our recommendation from our sentencing memo, the sentencing memo didn't just say hammer, hammer, hammer. [00:58:44] Speaker 01: It started out by making some of the mitigating motions and arguments the courts are familiar with that are under seal, right? [00:58:50] Speaker 01: By, again, pushing for a reduction that raised the eyebrows of the district court, as Judge Christian put it. [00:58:55] Speaker 01: And then she said, she recommended, based on the totality and circumstance, [00:59:00] Speaker 01: provides release and says, the United States respectfully submits that such a sentence would be sufficient, but not greater than necessary, to accomplish the goals of sentencing and achieve an appropriate balance of the 3553A factors. [00:59:12] Speaker 01: So she didn't just say, we recommend this. [00:59:15] Speaker 01: Let me hammer this guy. [00:59:16] Speaker 01: She gave an explanation, right? [00:59:17] Speaker 01: This is the balance we think is properly struck. [00:59:21] Speaker 01: And so again, if she'd read that back out of the sentencing hearing, would that have been a clearer compliance with the plea agreement? [00:59:26] Speaker 01: Yes. [00:59:27] Speaker 01: But especially in binary reasons. [00:59:36] Speaker 12: that we don't have to determine [01:00:07] Speaker 01: I guess I should say this, I think that the question is kind of how the sort of [01:00:27] Speaker 01: No, I don't think it's a factual finding. [01:00:29] Speaker 01: I mean, I guess if Your Honor is comfortable viewing this in terms of inferences to be drawn, it's saying, because the record equally supports the inference that much discussion was being referenced to support the government's recommendation rather than undermine it, that's all you have to know. [01:00:45] Speaker 01: I think that will be sufficient to resolve this case, certainly. [01:00:48] Speaker 08: May I just take the? [01:01:09] Speaker 01: we think the answer is no, while recognizing that some of the rhetoric was close to the line. [01:01:14] Speaker 01: I think under the understanding of the plea agreement that facts have to be relevant to sentencing for some of the reasons that Judge Brass and others were mentioning earlier, I do think it was relevant to sentencing to highlight the gravity and the seriousness of trafficking large quantities of heroin and methamphetamine. [01:01:30] Speaker 01: But I recognize the rhetoric used was close to the line. [01:01:32] Speaker 08: I mean, close to the line. [01:01:33] Speaker 08: And if it was disproportionate, that doesn't matter. [01:01:38] Speaker 01: I do think that matters. [01:01:43] Speaker 01: principle makes sense. [01:01:44] Speaker 01: We use the word leeway in our supplemental brief because I think that that captures, hopefully, proportionality concept. [01:01:50] Speaker 01: If Mr. Farias-Mujeres had asked for a sentence one month lower than what the government was recommending and the government responded with a barrage of aggravating information and didn't respond to mitigators and things like that makes this a much, much harder case for us by far. [01:02:21] Speaker 01: government's recommended sentence and telling the court that the much lower one the defendant is seeking is inappropriate. [01:02:28] Speaker 01: Just, if I can, I have one minute left, Your Honor, and I'm happy to answer any questions. [01:02:32] Speaker 01: But on Prom 3, the court hasn't really discussed that too much today. [01:02:35] Speaker 01: The federal defenders have a proposal in their amicus brief that the court should essentially adopt a presumption of prejudice, as I understand it. [01:02:42] Speaker 01: And I just want to mention to the court [01:02:49] Speaker 01: I think the court should not entertain it, and if it does, I would just try to preserve the point that I think the argument's inconsistent with Puckett. [01:02:56] Speaker 01: It would require the court to significantly abrogate the Gonzales-Aguilar precedent from this court, which considered a similar argument, and I don't think it's supported by the [01:03:22] Speaker 01: entirely above it. [01:03:24] Speaker 01: So it was the case of kind of numerical problems, and the courts worried about the anchoring effect that had, just like you see in guidelines cases. [01:03:31] Speaker 01: So again, as a procedural matter, we think the court should consider it on the merits. [01:03:36] Speaker 01: I think it's inconsistent with Supreme Court and circuit precedent. [01:03:38] Speaker 08: Let me just ask, Judge Gould, do you have any questions here for Mr. Meisler? [01:03:44] Speaker 08: No. [01:03:45] Speaker ?: OK. [01:03:47] Speaker 01: Thank you, arms. [01:03:48] Speaker 01: We'd ask that the court affirm. [01:04:31] Speaker 08: also give you a minute. [01:04:56] Speaker 12: a qualified immunity case where we have to show a case with exact same facts it's whether or not there's a clear legal principle and I think the parties here have agreed on the clear legal principle that we're going after and I think one thing that the government cited the Salazar [01:05:16] Speaker 12: there's a crossing or that they didn't cross the line here because that conduct in Salazar. [01:05:21] Speaker 12: But if you look at that case, that circuit did say how close to the line it was. [01:05:27] Speaker 12: And if you compare what the government did in Salazar, one straight comment, to the body of work that the government did here, it is further crossing the line. [01:05:37] Speaker 12: It actually went way across. [01:05:40] Speaker 12: The last point I'd like to make is more of a practical one. [01:05:43] Speaker 12: If this court affirms [01:05:50] Speaker ?: low-end recommendation illusory. [01:05:53] Speaker 12: There will be no way incentive for us to enter an agreement for a low-end if the government can make these type of arguments against the low-end recommendation. [01:06:03] Speaker 10: If you plan on not paying attention during the hearing, right? [01:06:07] Speaker 10: Because if you had objected, we wouldn't have this issue, right? [01:06:11] Speaker 12: Well, the conduct is still improper whether or not we object or not. [01:06:15] Speaker 12: The failure of us to object doesn't mean the government didn't cross the line. [01:06:23] Speaker 12: conduct right, and that's the thing. [01:06:25] Speaker 12: We would have to imagine the conversations we'd have with our clients of the government was agreed to recommend low end. [01:06:34] Speaker 12: All they have to do is say low end, but if we ask for a month or anything lower, they can say whatever they want. [01:06:41] Speaker 12: They can compare you to a murderer. [01:06:43] Speaker 10: They can talk about, as a practical matter, an objection is going to prompt some. [01:06:58] Speaker 10: by the low end, right? [01:07:00] Speaker 10: Is that what's going to happen? [01:07:01] Speaker 12: Right, but I think it's even more important for this court to say this conduct draws the line. [01:07:06] Speaker 12: So defense attorneys will know the joke, but particularly so prosecutors won't know. [01:07:39] Speaker 08: We are church.