[00:00:06] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:00:09] Speaker 00: Jonathan Ogata from the Office of the Federal Public Defender here on behalf of Mr. Jonathan Garcia. [00:00:14] Speaker 00: I'll endeavor to reserve two minutes for rebuttal. [00:00:18] Speaker 00: This case presents three issues, each of which independently suffice for a remand to the district court. [00:00:25] Speaker 00: This morning, I would like to focus on the first issue on appeal and discuss how the district court procedurally erred in failing to explain Mr. Garcia's sentence and failing to address Mr. Garcia's sentencing arguments. [00:00:37] Speaker 00: The District Court erred when it failed to explain Mr. Garcia's sentence and failed to address Mr. Garcia's non-frivolous sentencing arguments. [00:00:46] Speaker 00: The District Court's obligation to address defendants' non-frivolous arguments and to explain their reasoning for imposing a sentence is rooted first and foremost in 18 U.S.C. [00:00:57] Speaker 00: Section 3553C. [00:01:00] Speaker 00: Section 3553C mandates the District Court shall state in open court the reasons for imposing an individual sentence. [00:01:08] Speaker 00: Now this court in Cardi explained relying on the text of the statute in the Supreme Court's holding in the United States versus Rita. [00:01:17] Speaker 00: that the government is required to explain sufficiently for this court or for an appellate court to review its sentence during the sentencing hearing. [00:01:27] Speaker 03: Mr. Gauda, we have several cases that say that affirm a sentence with a very brief explanation, particularly when it's within the sentencing guidelines. [00:01:38] Speaker 03: What makes this particular brief explanation deficient in relation to some of those other cases? [00:01:44] Speaker 00: Yes, Your Honor, and I'll use three cases by way of example that the government cites in their brief. [00:01:51] Speaker 00: United States versus Valencia Barragan, United States versus Kleinman, and I believe they also cite United States versus Omskua Vasquez. [00:02:01] Speaker 00: In all of those cases, the district court, though brief, did more than they did in this case. [00:02:07] Speaker 00: In each of those cases, the district court, at the very least, cited and discussed Section 3553C. [00:02:15] Speaker 00: Now, our position is not that it's a magic words test. [00:02:18] Speaker 00: Our position is that appellate courts do what they often do, and that is take the district court at its word. [00:02:24] Speaker 00: When a district court says that it has reviewed the Section 3553C factors, the appellate court takes [00:02:31] Speaker 00: as true that the district court in fact did that. [00:02:35] Speaker 00: Now in this case, if you review the sentencing transcripts, I believe they begin on year 20, or at least that the defense's arguments do, that the only mention of the 3553A factors [00:02:48] Speaker 00: comes from defense counsel in their discussion. [00:02:51] Speaker 00: The district court never mentions the 3553A factors. [00:02:54] Speaker 03: I mean, is there anything in the record that would suggest that the court was not aware of the existence of these factors? [00:03:01] Speaker 03: The court did also say that it had reviewed the party's briefing and allowed argument and those factors in the citation to the statute are contained in those filings as well. [00:03:11] Speaker 00: I think that that's right, Your Honor, and the court did say that it reviewed all of those documents at the beginning of sentencing. [00:03:19] Speaker 03: But I suppose this goes, kind of straddles the explanation and the... And let me just say this, I'm sorry to interrupt, but you also have, we're reviewing this under a plain error review standard, aren't we? [00:03:30] Speaker 03: That's correct, Your Honor. [00:03:31] Speaker 03: So there has to be a very clear and obvious error and a substantial deprivation of a right. [00:03:35] Speaker 00: Yes, Your Honor, under the error, we believe that the error, it needs to be an error. [00:03:41] Speaker 00: It needs to be plain and that that error needs to have involved or implicated the defendant's substantial rights. [00:03:48] Speaker 02: What's your best argument for why this would be plain error? [00:03:51] Speaker 02: Because I hear a lot of, you know, error arguments, but why would it be plain? [00:03:56] Speaker 00: So our position is that this court en banc was very clear of the requirement of the district court in Cardi. [00:04:02] Speaker 00: And what this court said is that the district court needs to provide sufficient explanation for appellate review. [00:04:07] Speaker 00: It basically gave further explanation and a little teeth to section 3553C, which text alone is also relatively clear. [00:04:15] Speaker 00: So if we look at the text of 3553C, just purely the text, and then buttress that with this court's en banc decision in Cardi, when the district court doesn't provide that explanation, and this court sparse explanation, no citation to the 3553A factors at all, despite robust briefing on it, [00:04:33] Speaker 00: that that is error and that error is plain. [00:04:36] Speaker 00: I don't know that this court could have been any more clear than it was in Cardi, and certainly the statute itself is also quite clear. [00:04:43] Speaker 00: So when you have a textually clear statute buttressed by a very clear decision from this court en banc of the requirements for a district court judge, and when the district court judge fails to comply with both the statute as well as the en banc ruling, our position is that that error is plain [00:05:00] Speaker 00: and that it, in this case, involved a deprivation of an individual's substantial rights. [00:05:08] Speaker 00: And Judge Sanchez, I just want to circle back to your question and discuss what [00:05:14] Speaker 00: the issue of what happened in this case and why we can't infer it from the record, that the judge looked at these factors. [00:05:22] Speaker 00: I think the best example of that is that the sole statement that we have from the district court judge in this case, that it looked at the defense arguments, relates to the district court's one statement. [00:05:33] Speaker 00: It was one sentence, and he said, the court has departed slightly from the guideline range, primarily on Mr. Garcia's prior trauma, himself of being sexually abused. [00:05:43] Speaker 00: That's at ER 27. [00:05:45] Speaker 00: That was one of four arguments presented both in the briefing before the sentencing court as well as at sentencing. [00:05:52] Speaker 00: In fact, at sentencing, the defense's primary arguments didn't relate to the history and characteristics of Mr. Garcia. [00:06:00] Speaker 00: Rather, it related to the other three components that were raised in the sentencing briefing. [00:06:05] Speaker 03: Doesn't that cut against you, though? [00:06:06] Speaker 03: I mean, that suggests to me that the court was aware of what was filed in front of him and looked at these issues, was aware of the nature of the crime, the minor victims, the frequency of these contacts, and chose to mitigate the sentence somewhat from a recommendation of the maximum to what defense's recommendation was. [00:06:29] Speaker 03: That seems to me like an application of the 3553 factors. [00:06:33] Speaker 03: So I'm having a hard time seeing something in the record that would suggest the court was unaware of those factors and didn't know to apply them. [00:06:42] Speaker 00: I don't know, Your Honor, that we're searching the record for an indication that the court wasn't aware of the 3553A factors. [00:06:49] Speaker 00: Our position isn't that the district court was unaware of those at all. [00:06:53] Speaker 00: Our position is that the district court has an obligation to explain the sentence. [00:06:58] Speaker 00: And when arguments are raised by a defendant in a case that are non-frivolous, that same district court has a responsibility pursuant to the text of the statute [00:07:09] Speaker 00: to address those. [00:07:11] Speaker 00: That's the mandate of CARDI. [00:07:13] Speaker 00: And so in this case, what we have is the district court does make a brief explanation related to one of the 3553A factors. [00:07:21] Speaker 00: But what it does is does not provide an explanation of three of the other arguments. [00:07:25] Speaker 00: And the reason that in this case that is particularly important is because at sentencing, the defense presented an expert witness report [00:07:33] Speaker 00: And that report was relatively lengthy, and it addressed the three remaining arguments in the sentencing memorandum. [00:07:42] Speaker 03: That same expert report was... The policy arguments, the ones about the harshness of the policy guidelines? [00:07:48] Speaker 00: That was, those were supported by the report, but the report also discussed recidivism, danger to the community, which all addressed other components, and I believe that those can be found, the actual argument that was made can be found at ER 10 through 12 from defense counsel. [00:08:07] Speaker 00: And so this expert report was discussed by defense counsel at sentencing. [00:08:13] Speaker 00: It remained unrebutted by the government throughout the entire sentencing phase and was never addressed by the district court. [00:08:20] Speaker 00: So when the district court has an obligation, a statutory obligation that has been interpreted by this court en banc to explain the sentence and to address arguments, [00:08:30] Speaker 00: And three major arguments that were addressed not just in briefing, but during sentencing itself remain undiscussed even by the district court, not even mentioned. [00:08:42] Speaker 00: That is a violation, a plain error of both the text of the statute as well as this court's mandate in Cardi. [00:08:49] Speaker 00: I'll reserve the remainder of my time unless there's any questions from the panel. [00:08:52] Speaker 02: Thank you, counsel. [00:08:53] Speaker 02: We'll hear from the government. [00:09:09] Speaker 01: Good morning, Your Honors. [00:09:11] Speaker 01: May it please the Court, suddenly appearing on behalf of the United States, we ask this Court to affirm the sentence that was imposed in this case, a below-the-guidelines sentence of 300 months involving a serial predator of numerous minors. [00:09:27] Speaker 01: There was no error, much less clearer, [00:09:30] Speaker 01: when a district court imposed a below-the-guidelines sentence of 300 months. [00:09:36] Speaker 01: Just to start, defendant was originally facing a guideline range of life, and then defendant's guideline range was revised downward to 360 months. [00:09:46] Speaker 01: 360 months was a sentence that was recommended by the government and by the probation officer. [00:09:53] Speaker 02: But and I understand and I appreciate this emphasis on the below guideline sentence, but that doesn't Elite even for a below guideline sentence. [00:10:01] Speaker 02: You still have to comply with the statutory factors, right? [00:10:04] Speaker 01: Yes, your honor, but but I think but card is clear that a district court does I need to take off does not need to take off every single 35 53 factors and that the Explanation for the sentence can be inferred from the court infer from the entire record [00:10:21] Speaker 01: which I think is clear from the entire record in this case. [00:10:24] Speaker 03: It is a very cursory explanation, wouldn't you agree? [00:10:27] Speaker 03: There was very little mentioned at sentencing here, so it does require us to really strain to figure out what the court was thinking about in some ways. [00:10:38] Speaker 03: I'm not saying that other cases don't also do this, but this was a little bare bones. [00:10:46] Speaker 02: We want easier cases to come up. [00:10:49] Speaker 01: Yes, Your Honor. [00:10:51] Speaker 01: The explanation was brief, but there were no, this was not a case involving [00:10:58] Speaker 01: lengthy evidentiary as to contested facts or difficult legal questions that the district court had to resolve before resolving any guideline disputes or things like that. [00:11:10] Speaker 01: This was a pretty straightforward case. [00:11:12] Speaker 02: So what is the outer limit? [00:11:13] Speaker 02: I mean, if the district court didn't even mention, here he mentioned one of the factors. [00:11:19] Speaker 02: If the district court didn't even mention that one, would that be enough to say, no, you've got to take another look at this? [00:11:25] Speaker 02: If the defense counsel had not actually walked through all the factors, would we then say, well, the factors weren't even presented to the judge? [00:11:33] Speaker 02: Do we look at the prior history of the judge and say, he's done this so often, he knows it? [00:11:38] Speaker 02: Where's the outer limit of this? [00:11:41] Speaker 01: Well, this court has held in Cardi that this court may presume that a district court knows the law and knows of its obligations to follow its obligations when it conducts a sentencing hearing. [00:11:57] Speaker 02: The problem is you take that too far and then all of a sudden we've read the statute out. [00:12:03] Speaker 01: Yes, I understand your reports. [00:12:05] Speaker 01: The explanation, we can see that the explanation was briefed, but it was clear from the, it's clear when you look at the record as a whole that, you know, this report, you know, made sure that it had received and reviewed all the relevant documentation for the sentencing hearing. [00:12:21] Speaker 01: It gave defense attorney to make further arguments or elaborate on more arguments. [00:12:26] Speaker 01: It then ruled against [00:12:28] Speaker 01: against the defense counsel and ruled in favor of the government as to the sentencing enhancement. [00:12:33] Speaker 01: It also heard testimony from the two family members of the victim, one, the nine-year-old victim at the time of the crimes. [00:12:42] Speaker 01: and then it's below the guideline sentence. [00:12:45] Speaker 03: What about Mr. Gauda's argument that there were other substantive arguments raised in defense brief and at the sentencing hearing that were not addressed? [00:12:56] Speaker 03: Is that enough under Cardi to find plain air here, to not have addressed those? [00:13:03] Speaker 01: Cardi states that [00:13:06] Speaker 01: that there is no need to, you know, to guess each relevant 3553 factors, and that the, I apologize for repeating myself, but the adequate explanation can be inferred. [00:13:18] Speaker 01: A district court. [00:13:19] Speaker 03: But this is, I guess, a different point, which is, if there are substantive arguments being raised, and we all know that a district court doesn't have to go through each and every argument that's raised, but if it misses a number of them, do we look at that differently under Cardi? [00:13:33] Speaker 01: not when the result is below the guideline sentence and it is clear from the explanation given for the sentence and through the entirety of the sentencing record that the district court did consider the arguments that were raised by defense counsel for sentencing. [00:13:53] Speaker 03: So we have to be based on the drawing inferences from the record. [00:13:57] Speaker 03: Would we be in a different posture if this were a different standard of review than plain error? [00:14:02] Speaker 01: Um, that would, that would probably be a closer call. [00:14:06] Speaker 01: I acknowledge that that would be a closer call, but I, we are under a plain error standard here and we, um, the government submits that there was no error. [00:14:14] Speaker 01: There was certainly no clear error and there's abs, there's nothing in the record that suggests that the district court would have imposed a different lower sentence had [00:14:25] Speaker 02: And I mean, I guess that makes sense, because if the defense counsel had objected and said, hey, I want more explanation, the district court would have given it. [00:14:32] Speaker 02: So we probably wouldn't end up being... I mean, that would be unusual for a district court to say, thank you, I'm glad you want more explanation to the statute, but I'm not giving it. [00:14:41] Speaker 02: I think that would be a closer case. [00:14:43] Speaker 02: Yes, Your Honor. [00:14:44] Speaker 02: Can I ask about the supervised release? [00:14:47] Speaker 02: Is the government opposing a limited remand for purposes of conforming that? [00:14:52] Speaker 01: Your Honor, I recognize that that is a closer call. [00:14:55] Speaker 01: You know, when you just look at the sentence hearing, it's obvious that the oral pronouncement conflicts with the written judgment, and usually that should, you know, the oral judgment, oral pronouncement of the judgment should control. [00:15:06] Speaker 01: But when you zoom out a little bit, the parties did file a plea agreement in this case where the parties negotiated and stipulated to the terms of supervised release. [00:15:18] Speaker 01: Going back to the sentencing hearing, there's no indication at all in the record that the district court meant to not adopt the party's stipulation, a stipulation as to the supervised release conditions. [00:15:32] Speaker 03: And I understand the government, it's no fault of your own, but there is enough of a difference from the oral pronouncement that it doesn't seem to be a technical or ministerial change, which would make sense to then remand it on a limited basis to give defense a chance to object, although I don't know how far that'll go if there was an agreement under the plea agreement. [00:15:55] Speaker 01: Yes, Your Honor. [00:15:56] Speaker 01: So if this court is inclined to order that the sentence be [00:16:02] Speaker 01: be sent back was to correct that error, the government would not be opposed to that. [00:16:12] Speaker 01: If I would, I see that I have two minutes in the clock. [00:16:15] Speaker 01: I could address the substantive reasonableness. [00:16:19] Speaker 01: The opening brief characterized defendants of crimes as atypical that it was less egregious on the child pornography production guideline spectrum. [00:16:28] Speaker 01: The government rejects that. [00:16:30] Speaker 01: This case was actually on the more egregious end of the child pornography production guidelines because based on the fact that defendant had admitted to soliciting pictures from 50 to 100 minor age girls over a period of four years, he pretended to be a minor himself. [00:16:50] Speaker 01: And because of the nature of images that he solicited from his victims, they weren't just like, give me nude pictures, give me sexy pictures. [00:17:00] Speaker 01: I want you to insert foreign objects into your body, insert something into your body and send it to me. [00:17:05] Speaker 01: He demanded increasingly more graphic photos and videos from the victims, such as asking victim one was nine years old to insert, do you have something bigger than a marker? [00:17:18] Speaker 01: Do you have a boy dog? [00:17:19] Speaker 01: Of course, at the time the defendant was committing his online crimes against victim one and victim two, he was on pretrial release in a different state case, [00:17:29] Speaker 01: for committing hands-on offense against another minor. [00:17:32] Speaker 01: He had begun to act out on his sexual interest against minors. [00:17:38] Speaker 01: And there's assumption made that online crimes against minors are less heinous and less egregious because of the fact that they are online crimes. [00:17:50] Speaker 01: The government rejects that assumption. [00:17:53] Speaker 01: And there is possibly heart-wrenching testimony [00:17:59] Speaker 01: in the sentencing transcript from the mother and aunt of victim one, who was nine years old at the time, about the effect that defendant's crimes has had on their family, how it has taken away victim one's innocence, how it has shattered their trust in everybody, how it has turned her daughter from a happy, loving child into a child whose suicidal has anxieties, it has to be medicated, had to be pulled from school, [00:18:28] Speaker 01: Um, and, and because of what happened, the mother talked about how she can't even trust anybody to watch her children, how she can't even trust her own father to watch their children. [00:18:44] Speaker 01: She can't even trust her new partner, how she wakes up in the middle of the night wondering her children are safe. [00:18:51] Speaker 01: Um, so this was the 25 year sentence I was given was entirely reasonable. [00:18:59] Speaker 01: in this case, Your Honor. [00:19:00] Speaker 01: And with that, the government will submit. [00:19:02] Speaker 02: Thank you. [00:19:03] Speaker 02: Thank you, counsel, for your arguments. [00:19:05] Speaker 02: We'll hear rebuttal. [00:19:06] Speaker 02: You have a little over a minute. [00:19:16] Speaker 00: Thank you, Your Honors. [00:19:17] Speaker 00: Two points on rebuttal, if I can reach them both. [00:19:19] Speaker 00: The first related to the first issue, and then the second related to the third issue, that Judge Nelson asked the government related to a limited remand. [00:19:28] Speaker 00: Judge Sanchez, you asked the government during their argument about the issues that were not discussed by the judge, specifically the ones that we talked about related to the expert witness and or excuse me the expert report that we filed. [00:19:43] Speaker 00: during sentencing. [00:19:45] Speaker 00: The government's response to you was that you can infer what the court intended related to the sentence, their reasoning and justification from the record. [00:19:53] Speaker 00: The problem with that argument is that it was never addressed by the government in their briefing. [00:19:58] Speaker 00: It was only addressed by defense. [00:20:00] Speaker 00: It was raised again by the defense during the sentencing hearing and remained unaddressed by the judge. [00:20:06] Speaker 00: It was also not addressed in the PSR. [00:20:08] Speaker 00: So if the court is to divine anything from that, it is that the district court [00:20:12] Speaker 00: didn't address an argument that was presented by the defense, both in briefing and during the hearing, that cannot be inferred from the record because PSR is silent on it and the government didn't rebut it. [00:20:23] Speaker 00: At least on that point, the district court should have gone back, or this case should go back to the district court for them to cure that. [00:20:30] Speaker 00: And briefly, if I can, Your Honor, just on issue three, we believe that a remit would be appropriate for the purposes of very least conforming the written judgment to the oral judgment as is required. [00:20:41] Speaker 00: And we believe that that is supported by United States versus Montoya. [00:20:45] Speaker 02: Okay, thank you. [00:20:45] Speaker 02: Thank you to both counsel for your arguments in this case. [00:20:47] Speaker 02: The case is now submitted.