[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
Jessica Agostin, Federal Defenders, on behalf of Ms.

[00:00:16] Speaker 01:
Rodriguez.

[00:00:18] Speaker 01:
I'll plan- Excuse me.

[00:00:19] Speaker 01:
Oh, sorry.

[00:00:19] Speaker 04:
Would you please restart the clock?

[00:00:23] Speaker 04:
Oh.

[00:00:25] Speaker 04:
Okay, so who are you arguing on behalf of?

[00:00:28] Speaker 01:
Yes, Ms.

[00:00:28] Speaker 01:
Rodriguez, Carla Rodriguez.

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

[00:00:30] Speaker 04:
Rodriguez, okay.

[00:00:33] Speaker 01:
Proceed.

[00:00:35] Speaker 01:
OK.

[00:00:35] Speaker 01:
So I'm Jessica Agostin, federal defenders, on behalf of Carla Rodriguez.

[00:00:39] Speaker 01:
I'm going to take the first nine minutes.

[00:00:41] Speaker 01:
Counsel for Mr. Martin's is going to take the remaining six.

[00:00:44] Speaker 01:
For myself, I'll plan to reserve a minute, and I'll watch my own clock.

[00:00:48] Speaker 01:
So in Ms.

[00:00:50] Speaker 01:
Rodriguez's sentencing, after she exercised her right to testify, the district court applied an obstruction adjustment absent a finding that the specific false testimony was on a material matter.

[00:01:01] Speaker 01:
And because of that, as well as the failure to explain and clear error issues, we asked this court to remand for re-sentencing.

[00:01:09] Speaker 01:
So on the obstruction guideline, any time a defendant exercises the right to testify,

[00:01:15] Speaker 01:
And that forms the basis of an obstruction enhancement this court requires that the elements of perjury Be found expressly and that's giving false testimony and the falsehoods were willful and material if it's based on perjury Yes, that's correct.

[00:01:30] Speaker 01:
And I think your honor judge Benninger question goes to whether this case falls more in the lines of the florist line of cases or the

[00:01:38] Speaker 01:
perjury obstruction line of cases.

[00:01:40] Speaker 02:
So let me start out with where my main issue with your argument is that the testimony related in part at least to where she got the drugs, right?

[00:01:53] Speaker 02:
Right.

[00:01:53] Speaker 02:
And a drug dealer, I don't remember the town, in where she lived.

[00:02:01] Speaker 01:
It was San Diego versus Mexico.

[00:02:02] Speaker 02:
Yes.

[00:02:03] Speaker 02:
OK.

[00:02:03] Speaker 02:
So why

[00:02:06] Speaker 02:
when we're dealing here with sentencing, the risk of death being foreseeable.

[00:02:13] Speaker 02:
why wouldn't testimony about some known person knowing you know where the drugs are and it's in your hometown, why wouldn't that make the risk of death less foreseeable than getting them from your brother in Mexico, an unknown supplier, they're strong, et cetera, because her testimony called into question the whole thing about the text messages from the brother, they're strong,

[00:02:41] Speaker 02:
My chick says they're great.

[00:02:44] Speaker 02:
So why wouldn't that affect the sentence, that kind of testimony?

[00:02:48] Speaker 02:
Why wouldn't that relate to a matter that was materially at issue, this 25-level enhancement?

[00:02:53] Speaker 01:
Yeah, theoretically it could.

[00:02:56] Speaker 01:
However, the district court here said, I find whether she got them in Mexico or San Diego makes no difference.

[00:03:03] Speaker 02:
Makes no difference to the offense.

[00:03:06] Speaker 01:
Well, so that was post.

[00:03:08] Speaker 02:
Go ahead.

[00:03:08] Speaker 01:
I'm sorry.

[00:03:09] Speaker 01:
So he made that statement at an evidentiary hearing post plea.

[00:03:14] Speaker 01:
So that motion hearing went exclusively to whether to provide a departure or variance.

[00:03:20] Speaker 01:
So at that hearing, the only question was, I think, the question you're pointing out about the foreseeability about how much the court should depart a jury.

[00:03:28] Speaker 02:
Right.

[00:03:28] Speaker 02:
And a page, I'm not sure if this is

[00:03:32] Speaker 02:
page 96 of the sentencing transcript.

[00:03:35] Speaker 02:
I apologize if that's not the ER site.

[00:03:39] Speaker 02:
As I found the credibility of Ms.

[00:03:41] Speaker 02:
Rodriguez in particular wanting, it is true that it boated in the court's finding of the foreseeability of the misconduct leading to death.

[00:03:49] Speaker 02:
That was at the sentencing.

[00:03:51] Speaker 01:
Yes, I would point out the credibility finding being relevant is distinct from specific untrue testimony being material.

[00:03:59] Speaker 01:
And the specific untrue testimony being material is the element of perjury that's required to be found.

[00:04:07] Speaker 01:
This court is reversed for much stronger statements.

[00:04:10] Speaker 01:
Obviously, Judge Van Dyke and his concurrence in Sampson expressed a lot of frustration with that.

[00:04:14] Speaker 01:
It's an unpublished case, I think, both the government and the site.

[00:04:18] Speaker 01:
But it has done it.

[00:04:19] Speaker 01:
And even Judge Van Dyke recognized.

[00:04:21] Speaker 01:
He concurred.

[00:04:22] Speaker 01:
He didn't dissent, because he said, I don't agree with any of this.

[00:04:25] Speaker 01:
But we have to do with it.

[00:04:26] Speaker 00:
Can you explain to me, I think you just took the position, but I may have misunderstood you, that where the drugs came from might have made it more foreseeable to her that death would result?

[00:04:37] Speaker 00:
Is that what you said?

[00:04:38] Speaker 00:
Theoretically, I mean, I don't know.

[00:04:41] Speaker 00:
Well, this is important on my scorecard.

[00:04:43] Speaker 00:
So was there any evidence in the record that the drugs coming from Mexico were more likely to be tainted?

[00:04:49] Speaker 01:
No.

[00:04:50] Speaker 00:
Was there any evidence about the amount of drugs, the origin of drugs that one might buy on the street in San Diego and whether that might have been Mexico?

[00:05:01] Speaker 01:
No, but for practical persons, you know.

[00:05:03] Speaker 00:
It seems very likely.

[00:05:04] Speaker 00:
So I'm trying to figure out what difference it made.

[00:05:06] Speaker 00:
And then, of course, we have the judge's statement that it doesn't matter.

[00:05:09] Speaker 01:
In this case, it clearly did not make a difference.

[00:05:11] Speaker 00:
On foreseeability, I understand the record to be that she testified that she'd done drugs with her boyfriend in the past, Martins, right?

[00:05:21] Speaker 00:
That's correct.

[00:05:22] Speaker 00:
He'd never given them away in the past.

[00:05:24] Speaker 00:
That's correct.

[00:05:25] Speaker 00:
She didn't know NAR.

[00:05:26] Speaker 00:
until this evening, the fateful evening.

[00:05:31] Speaker 00:
Her boyfriend told her that he was actually going back to the hotel to hand his dog off to a friend.

[00:05:37] Speaker 00:
So even that night didn't say he gave drugs to anybody else.

[00:05:43] Speaker 00:
What else should I be considering about foreseeability to her?

[00:05:46] Speaker 00:
It seems what the district court's reasoning was struck me as exactly right.

[00:05:50] Speaker 00:
You give drugs to an addict and it's foreseeable that that person might die, but Martens didn't die.

[00:05:55] Speaker 00:
It's NAR.

[00:05:56] Speaker 00:
How is it foreseeable these drugs would wind up in his hands?

[00:05:59] Speaker 01:
So there's no evidence in the record to suggest that.

[00:06:02] Speaker 01:
I think what the district court did was rely on intuition about what addicts should generally know, and I think the subtext is what they should generally know about sharing pills, I suppose.

[00:06:12] Speaker 02:
But isn't the law that if you know death is foreseeable, it doesn't matter if you know that the death of the person who died was foreseeable, if you know that it's foreseeable that if you distribute drugs, for example, to

[00:06:26] Speaker 02:
an addict that there could be a death there, that that's enough for the enhancement?

[00:06:33] Speaker 01:
So this was a departure or variance that wasn't specifically, I'll say it wasn't specifically focused to one exact guideline.

[00:06:41] Speaker 01:
So I think what matters here is the district court's own reasoning rather than any specific law about the foreseeability to a third party.

[00:06:51] Speaker 01:
Your Honor might be referencing the mandatory minimum that statutory enhancement does not require a finding of foreseeability.

[00:06:58] Speaker 01:
But of course, the government, I think, correctly, intuited that a 20-year sentence was not appropriate given that these folks were not dealers.

[00:07:06] Speaker 01:
I'd be happy to.

[00:07:09] Speaker 01:
Because the drugs were given away?

[00:07:10] Speaker 01:
Is that?

[00:07:11] Speaker 01:
Yes, they were given away for free.

[00:07:12] Speaker 01:
OK.

[00:07:14] Speaker 01:
If this court doesn't have any further questions, I'll reserve the remainder of my time.

[00:07:18] Speaker 01:
All right.

[00:07:18] Speaker 01:
Thank you, Counsel.

[00:07:19] Speaker 01:
Thank you.

[00:07:27] Speaker 05:
Good morning, Gary Bersham.

[00:07:29] Speaker 05:
I represent defendant David Martins.

[00:07:31] Speaker 05:
We're also challenging the sentence in this case, and in particular the 25-level 5K2.1 upward departure that the district court imposed in this case.

[00:07:41] Speaker 05:
Proximate cause is the issue in our claim as well.

[00:07:44] Speaker 05:
For a 5K2.1 upward departure to apply, aside from but for cause, which we're not contesting in this case,

[00:07:51] Speaker 05:
The court has to find that it was foreseeable that the pills would have caused the death and also that the defendant, in this case Mr. Martins, knowingly risked the death of NAR when he gave him the pills.

[00:08:03] Speaker 02:
He knew that he had a, he knew NAR was in treatment and had substance abuse history.

[00:08:08] Speaker 02:
Yes, Your Honor, he did.

[00:08:09] Speaker 00:
Was it three pills that he gave him?

[00:08:11] Speaker 02:
Correct, three pills.

[00:08:12] Speaker 00:
And he himself had consumed two that night?

[00:08:15] Speaker 00:
Correct.

[00:08:15] Speaker 00:
And thought they were strong?

[00:08:16] Speaker 05:
Yes.

[00:08:17] Speaker 00:
And did he observe before, is there evidence in the record that he observed, Mr. Martins observed the NAR was under the influence of something or rather, before he gave him the drugs?

[00:08:27] Speaker 05:
When he saw him that night at the motel, he thought he looked like he was intoxicated based upon overtaking his prescription, the gabapentin pills.

[00:08:35] Speaker 05:
And so that is something that Mr. Martins recognized.

[00:08:41] Speaker 05:
What I'm trying to focus on below, what I want this panel to focus on is the fact that when this happened in 2019, Mr. Martins had no idea that these pills could have contained fentanyl.

[00:08:53] Speaker 05:
I mean, 2024, this is a public health crisis.

[00:08:58] Speaker 05:
Tuesday of this week, May 7th was the

[00:09:00] Speaker 05:
National Offensive Awareness Day.

[00:09:03] Speaker 05:
The DEA's one pill can kill.

[00:09:04] Speaker 05:
The 2023, 2024, 2022, the danger of these pills is out there, and it should be.

[00:09:10] Speaker 05:
These pills are really dangerous.

[00:09:13] Speaker 05:
Literally one pill can kill someone, whether they're an addict or whether they're a high school kid at a party taking a pill for the first time.

[00:09:19] Speaker 05:
In 2019, it was different.

[00:09:20] Speaker 05:
In 2019, that was just the beginning of seeing the overdoses and the deaths from these pills.

[00:09:27] Speaker 05:
And Mr. Martins, when he was asked after he was arrested, and same with Ms.

[00:09:31] Speaker 05:
Rodriguez, they had never heard of fentanyl.

[00:09:33] Speaker 05:
And so Mr. Martins, when he gave these pills to NAR and when he took them himself, thought these were hydrocodone pills, which are the typical light blue M30 pills that

[00:09:44] Speaker 02:
But he knew, or at least there's evidence that he knew her brother said they were good.

[00:09:53] Speaker 05:
Correct.

[00:09:55] Speaker 05:
And the question that Your Honor had about geographically, where did these pills come from?

[00:10:01] Speaker 05:
Is that important?

[00:10:02] Speaker 05:
I don't think geographically it is.

[00:10:03] Speaker 05:
What's important is these were non-pharmacy, non-prescription pills.

[00:10:08] Speaker 00:
Is that apparent?

[00:10:09] Speaker 00:
I don't know how they looked, why that would have been apparent.

[00:10:12] Speaker 00:
They're buying them on the street.

[00:10:13] Speaker 00:
That doesn't mean they didn't come from a pharmacy.

[00:10:16] Speaker 05:
Well, we're assuming they didn't come from, well, they didn't come from a U.S.

[00:10:19] Speaker 05:
pharmacy.

[00:10:20] Speaker 00:
I'm just referring to, I'm not trying to be cute, it's just, you know, so often we see cases where somebody's stolen pharmacy pills out of a medicine cabinet or out of a purse or something, so I don't know.

[00:10:30] Speaker 00:
These pills were described as being blue and having a little stamp on them that sounded to me like they might have looked like they had been from a pharmacy, so.

[00:10:38] Speaker 05:
The point I'm trying to make is that these

[00:10:42] Speaker 05:
The fact that these pills were different in strength suggests that these were not legitimate pills made from Pfizer or Merck or one of the pharmaceutical companies.

[00:10:53] Speaker 05:
Pharmaceutical-grade pills don't differ in strength.

[00:10:55] Speaker 05:
The pills are all the same.

[00:10:57] Speaker 05:
And the fact that these pills seem stronger than the last ones

[00:11:00] Speaker 05:
that he had taken, suggests that these were pills not from a legitimate pharmacy, not from a legitimate source.

[00:11:08] Speaker 05:
But that doesn't change the fact that Mr. Martins.

[00:11:10] Speaker 04:
So Mr. Martins took two pills before he gave the three to NAR.

[00:11:16] Speaker 05:
That's correct.

[00:11:18] Speaker 04:
And nothing, he didn't, he felt stronger, but he didn't die.

[00:11:22] Speaker 05:
No, he had no adverse effects.

[00:11:24] Speaker 00:
Did the text say they were stronger?

[00:11:29] Speaker 05:
and said it was strong strong and too deep this week to take to you they were strong okay and circle back to just to do that i think i think to

[00:11:43] Speaker 05:
the fact that it's really most important for this determination is that he had no inkling, no idea that these pills were not, they would contain a completely different substance than hydrocodone and they would be 50 or 100 times more powerful than morphine, which is what fentanyl is.

[00:11:59] Speaker 05:
And so he would never have given NAR these pills if he had, if he was practically certain

[00:12:06] Speaker 05:
that he could risk his good friend's death by doing so.

[00:12:09] Speaker 00:
There was an evidentiary hearing, and I think toxicologists testified about what the actual cause of death was and so forth, and then a finding by the trial court.

[00:12:19] Speaker 00:
Was there testimony there that if the pills had been what your client thought they were, that death couldn't have resulted from taking three of them?

[00:12:25] Speaker 05:
There was no testimony as to whether if these were hydrocodone pills that they would have been fatal.

[00:12:32] Speaker 05:
There was nothing in the record suggesting that if these pills had not contained fentanyl that NAR would have died.

[00:12:38] Speaker 02:
There were statements that were made I think after the arrest suggesting that maybe they thought they were sex pills?

[00:12:47] Speaker 05:
There was some deflection.

[00:12:49] Speaker 05:
Mr. Martin, he was scared.

[00:12:52] Speaker 05:
He gave his friend a pill and it killed him.

[00:12:54] Speaker 00:
So I asked a slightly different question than the one you answered, which is, was there testimony at that evidentiary hearing or any evidence that if the pills had been what your client thought they were, that death would not have resulted?

[00:13:07] Speaker 05:
I don't believe there was on that specific point.

[00:13:09] Speaker 05:
OK.

[00:13:10] Speaker 05:
I believe there was not.

[00:13:12] Speaker 05:
I'd like to reserve a minute for rebuttal, if possible.

[00:13:15] Speaker 04:
All right.

[00:13:15] Speaker 05:
Thank you very much.

[00:13:25] Speaker 03:
Good morning again, may it please the court, Zach Howe on behalf of the United States.

[00:13:28] Speaker 03:
The district court did not plainly err in applying an obstruction of justice enhancement here.

[00:13:34] Speaker 03:
For one, this court has never required explicit findings outside the context of perjury and as the notes to the guidelines note,

[00:13:41] Speaker 03:
There are other grounds for providing false statements to the court and officers that are separate from the perjury-based obstruction enhancement.

[00:13:50] Speaker 03:
So I don't think it could be plainly erroneous to not require express findings here when Rodriguez provided false statements to the court and provided false statements to officers before trial.

[00:14:03] Speaker 03:
So perjury wasn't the only grounds for an enhancement.

[00:14:06] Speaker 04:
Is there any basis for finding that

[00:14:11] Speaker 04:
The fact that the drugs came from Mexico and not from San Diego adjacent to Mexico made them any, it made the risk of death any more foreseeable.

[00:14:24] Speaker 03:
No, and we haven't relied on that.

[00:14:25] Speaker 03:
And I think the court's statement at page 77 of the record that it didn't make a difference whether they were from San Diego or Mexico kind of forecloses that avenue to us.

[00:14:33] Speaker 03:
I think the grounds for foreseeability here relate to the

[00:14:39] Speaker 03:
deflections about the text messages.

[00:14:42] Speaker 03:
So as I take Rodriguez's testimony, she's saying she gave opiates to Rodriguez, but that those opiates were not the pills she was referring to in her text messages.

[00:14:54] Speaker 03:
She's saying all of those discussions were just about sex pills.

[00:14:58] Speaker 04:
I don't see the judge making those findings.

[00:15:01] Speaker 03:
I think page 38, for example, of the record, the court makes the finding that the blue pills are the sex pills, or excuse me, that the blue pills are the oxy and not the sex pills.

[00:15:13] Speaker 03:
Of course, what's being referred to in the text messages is the blue pills.

[00:15:16] Speaker 03:
So I think the court's saying that's referring to oxy and not the sex pills.

[00:15:20] Speaker 00:
I'm trying to make sure that we're talking about a minute ago you talked about foreseeability, but I think we're really on the topic of obstruction Yes, okay, and so that we haven't if we don't have a finding of materiality And I think that there's an argument to me about whether that was necessary here I'm trying to figure out what your response is you know we have an indication from the judge that he thinks that That statement wasn't material right at least the statement about the origin of the drugs was not material

[00:15:46] Speaker 03:
And I agree with that.

[00:15:47] Speaker 00:
So are you relying on, I think I understood that you agreed with that part.

[00:15:51] Speaker 00:
So are you relying on support for the obstruction enhancement, a different misstatement that she made?

[00:15:57] Speaker 03:
Yes, and I think I said foreseeability and materiality.

[00:15:59] Speaker 03:
So what I'm relying on, sorry about that.

[00:16:02] Speaker 03:
So what I'm relying on is, and what I think the court was relying on, was the lies about the nature of the text messages.

[00:16:08] Speaker 00:
And you think that supports the obstruction?

[00:16:10] Speaker 03:
Yes, and the reason is that you have these text messages where Martins discusses the blue pills with Rodriguez, and then shortly after, Martins discusses the pills with NAR, and he describes them as strong and too deep, and he also says, my chick, referring to Rodriguez, said they're the opposite of last time and that they're good.

[00:16:34] Speaker 03:
So in other words, last time they were bad, this time they're good, that's what Rodriguez is telling me.

[00:16:38] Speaker 03:
That's material because it indicates that if those text messages really are about the pills that Rodriguez gave to Martins, then she knows that they're good, they're the opposite of last time, and that obviously is material to whether she would foresee that they could cause death.

[00:16:56] Speaker 00:
I think I understand your answer to the instruction count for enhancement, but I think we were just getting into foreseeability and for me this is a this is a really steep

[00:17:09] Speaker 00:
hill for the government to climb.

[00:17:11] Speaker 00:
So because it seems to me foreseeable that Martins may have gotten into trouble, but you heard me go through the facts that you know very well about Rodriguez where she said, you know, he'd never given them away before.

[00:17:23] Speaker 00:
He actually lied to her about why he was meeting that night because he told her there was a need to hand off a dog and so on and so forth.

[00:17:30] Speaker 00:
So why was it foreseeable to her that these drugs would be given to anyone else?

[00:17:34] Speaker 03:
So our position below is not that it was foreseeable that Martins would give the pills to NAR.

[00:17:41] Speaker 03:
We do have an argument in our brief that to the extent the court found that, and I don't think it did, but if it did, I think it would just come down to a credibility determination that wouldn't necessarily be clearly erroneous.

[00:17:50] Speaker 03:
But I think we all agree that the court ultimately isn't finding that she foresaw that Martins would give the pills to NAR.

[00:17:58] Speaker 03:
What the court is finding is just that

[00:18:00] Speaker 03:
regardless of whether you foresaw that the pills would be given to someone else, there is still a foreseeable risk of death when you are giving pills to an addict who, and this is by our own testimony at 368 through 72, he is an addict who has been kicked out of rehab.

[00:18:17] Speaker 03:
He sometimes takes up to 30 pills a day.

[00:18:20] Speaker 03:
She had to ration the number of pills she gave him.

[00:18:21] Speaker 02:
You're talking about the brother.

[00:18:23] Speaker 03:
I'm talking about Rodriguez's testimony about Martins.

[00:18:28] Speaker 03:
So this is the person who she's giving the pills to.

[00:18:32] Speaker 03:
She knows he has no stop signs.

[00:18:34] Speaker 03:
And I think the cases we cite at page 38 and 39 of our brief indicate that even if you don't know the particular person who ends up dying, if you're giving drugs to an addict, there is still a foreseeable risk of death.

[00:18:48] Speaker 00:
And ultimately- Yeah, she was giving hydrocodone.

[00:18:52] Speaker 00:
I believe oxycodone, yes.

[00:18:56] Speaker 00:
She gave him ten, Martin's ten, she said because she thought he didn't have a stop sign.

[00:19:01] Speaker 00:
I remember reading that part.

[00:19:03] Speaker 00:
So you think because she gave ten to an addict it was foreseeable that somebody would die?

[00:19:10] Speaker 03:
Yeah, and one correction, I apologize.

[00:19:13] Speaker 03:
I think she actually didn't specify oxycodone.

[00:19:15] Speaker 03:
I think she specified opiates.

[00:19:17] Speaker 03:
So she knew she was giving him opiates.

[00:19:18] Speaker 03:
I'm not sure if she said she knew she was giving him oxycodone.

[00:19:21] Speaker 03:
But then to your question, yes, I do think if you are giving 10 pills to someone who you know has no stop signs, then there is a, who is an addict, there's a reasonable, a foreseeable risk of death, even if the person who ultimately dies isn't the person taking the drugs.

[00:19:40] Speaker 00:
What's your strongest authority for that point that it needed to be it didn't need to be Martins it could have been foreseeable or was sufficient sorry that that that it was first should have been foreseeable to her that he might give them to someone even though he never had before sure so there are two strands of cases we cited page 38 and 39 of our brief the cases on page 38 relate to

[00:20:02] Speaker 03:
when some of them are conspiracy cases, you know, when you're in a drug conspiracy and drugs get given to an addict, it's seldom the case that all of the co-conspirators foresee which addict is ultimately going to be the one who dies, and yet courts have found foreseeability in that instance.

[00:20:19] Speaker 03:
The other strand of cases we cite relate to the

[00:20:24] Speaker 03:
Departure provision more generally and in those cases courts have found foreseeability even when the death the manner of death has been Frankly pretty attenuated from You know what was going on in the case so to give some examples in Montgomery the defendant illegally possessed a gun and his wife used that gun to commit suicide and the court said a departure was appropriate there and

[00:20:48] Speaker 03:
In Sheetz, a co-conspirator shot someone while they were collecting drug debts and the court said the other co-conspirator could foresee the death.

[00:20:58] Speaker 03:
In Purchase, a drug courier was ordered by the defendant to swallow drug packages and they burst in the courier's stomach.

[00:21:07] Speaker 03:
The court said there was foreseeability there.

[00:21:10] Speaker 03:
In Davis, the Fifth Circuit said that

[00:21:13] Speaker 03:
during an armed robbery when the teller died, not from being shot, but from a brain aneurysm, that death was foreseeable there.

[00:21:20] Speaker 03:
So ultimately, I think this really just comes down to, was it clearly erroneous for the district court to foresee or to conclude that there was foreseeability in those circumstances?

[00:21:31] Speaker 03:
And I think all those authorities support our position.

[00:21:34] Speaker 03:
But even if you were to disagree with that,

[00:21:37] Speaker 03:
this all goes to the departure but ultimately the court just reviews the overall sentence for substantive reasonableness and in the 3553A analysis even lacking some sort of strict definition of foreseeability the district court I think is entitled to vary given that you have a very tragic death and that you have in Rodriguez's case someone giving

[00:22:01] Speaker 03:
very strong drugs to a, or well, I'll say drugs that she knows to be good and the opposite of last time to a known addict with no stop signs and given her dishonest statements, I don't think a 75-month sentence is unreasonable in that circumstance.

[00:22:17] Speaker 03:
And for Martins, who is directly giving them to an addict in rehab who is high at the time and ultimately tragically passes away, a 72-month sentence is unreasonable.

[00:22:29] Speaker 00:
It seems to me that you're jumping to substantive reasonableness.

[00:22:33] Speaker 00:
I understood that the decision tree is the first, we're really looking at the first calculation of the guidelines.

[00:22:40] Speaker 00:
We start there, of course, and there's this question about the 25 points, the points that were added right up on the front end, and that depends upon a foreseeability finding, doesn't it?

[00:22:51] Speaker 03:
I agree with that, but this court has said in Lichtenberg and Melser and other cases that post-Booker, it doesn't review the procedural correctness of departures.

[00:23:02] Speaker 03:
Ultimately, even if you were to find that there's an error in the fact-finding relating to foreseeability for the departure,

[00:23:09] Speaker 03:
then you still have to analyze the overall sentences to ask if they're substantively reasonable.

[00:23:14] Speaker 00:
I agree, and I'm not trying to be difficult, but I am trying to make sure we're not having a miscommunication.

[00:23:18] Speaker 00:
Before you get there to the departure, I mean, right, we have to figure out whether you started with the correct number, and there has to be a justification for plugging in 25 points, right?

[00:23:27] Speaker 00:
And I think that is dependent upon, that's my understanding, that's dependent upon the judge's foreseeability finding.

[00:23:34] Speaker 00:
Do you analyze that differently?

[00:23:36] Speaker 03:
So for departures, they ultimately roll into the 3553A analysis because it's different than calculating other adjustments that actually go into the guidelines calculation.

[00:23:47] Speaker 03:
Pre-booker, the departure would have been mandatory and so then you would review it for procedural correctness.

[00:23:52] Speaker 03:
Here, the court, if you were to find error in the departure, then you wouldn't simply say we reverse because the court miscalculated the guidelines, because again, the departure is no longer mandatory post-booker.

[00:24:04] Speaker 03:
It would just be part of the substantive reasonableness analysis.

[00:24:07] Speaker 00:
I see.

[00:24:08] Speaker 00:
I see.

[00:24:08] Speaker 00:
So the answer to my question is yes.

[00:24:10] Speaker 03:
I believe so.

[00:24:11] Speaker 03:
Yes, that's correct.

[00:24:14] Speaker 03:
So I have a few minutes left.

[00:24:15] Speaker 03:
I wanted to just, if I could return and say a few more words about obstruction.

[00:24:20] Speaker 03:
The ground I gave you for affirming was that the court doesn't have to make explicit findings for non-perjury based enhancements.

[00:24:27] Speaker 03:
Even if you were to find that the court could only have made this enhancement based on perjury in this case, there is an intra-circuit split as to whether you need express findings as to willfulness and materiality or not.

[00:24:42] Speaker 03:
I absolutely take my friend on the other side's point that you have Castro Ponce and you have Herrera Rivera and other cases saying you do need express findings.

[00:24:50] Speaker 03:
But for every one of those, I can point you to two or three published cases from this court saying you don't need express findings.

[00:24:56] Speaker 03:
I've jotted down eight published opinions that say that.

[00:24:59] Speaker 00:
I appreciate those authorities that you've cited, but do any of those cases include the statement that we had here where it affirmatively from the court that indicated that the statement regarding source wasn't material?

[00:25:12] Speaker 03:
I don't think so.

[00:25:12] Speaker 03:
And if that was all that we had, then I would agree you should reverse because you have an affirmative finding of a lack of materiality.

[00:25:19] Speaker 03:
But here I think the court statements that the two sets of statements.

[00:25:24] Speaker 03:
One is that it says that it agrees that these blue pills that she's talking about are the

[00:25:30] Speaker 03:
oxy and not the sex pills that's a finding of the nature of the lie so it's saying that's a lie about the text messages that coupled with the finding that it does find that her credibility factored in its foreseeability determination I think necessarily covers

[00:25:46] Speaker 03:
materiality and willfulness because of course if these lies were completely accidental or if they were completely immaterial then they would have had nothing to do with foreseeability.

[00:25:56] Speaker 03:
They couldn't possibly have affected whether she would have foreseen the risk of death.

[00:26:01] Speaker 02:
Did the district court say it was only relying on statements to the district court or did the district court leave open by the general nature of the comments about statements to law enforcement?

[00:26:13] Speaker 03:
So as I read it, the court doesn't parse it one way or the other.

[00:26:16] Speaker 03:
I don't see it either.

[00:26:18] Speaker 03:
I will say the PSR in requesting the obstruction enhancement mentions the statements to officers, and the government in its sentencing pitch doesn't expressly mention statements to officers, but it does say that Rodriguez has been dishonest since the beginning of the case, suggesting the statements to officers.

[00:26:35] Speaker 04:
It doesn't think government sentencing memo, I'm sorry to interrupt you, but doesn't think government sentencing memo

[00:26:41] Speaker 04:
explicitly invoke perjury.

[00:26:44] Speaker 04:
And at the evidentiary hearing, didn't the AUSA state, I think the reason we are recommending a higher sentence for Ms.

[00:26:51] Speaker 04:
Rodriguez is because we believe she perjured herself during the evidentiary hearing.

[00:26:57] Speaker 04:
Doesn't that trigger Castro-Ponce?

[00:27:00] Speaker 03:
Well, I think that's the page after the government says that she's been dishonest since the beginning of the case.

[00:27:06] Speaker 03:
So, you know, I absolutely agree.

[00:27:09] Speaker 03:
We mentioned perjury on that page.

[00:27:11] Speaker 03:
The court ultimately doesn't mention perjury at any point.

[00:27:14] Speaker 03:
So, again, I think it's there, it's open that the court was not relying strictly on perjury.

[00:27:20] Speaker 03:
But again, even if you find that this was a perjury.

[00:27:23] Speaker 04:
All the reason that, or that we should require explicit findings from the district court so we know what they're actually, what the court's actually ruling.

[00:27:32] Speaker 03:
Well, Your Honor, I'll simply say that even if you find this had to be or was a perjury-based enhancement when you have an intra-circuit conflict as to whether you need express findings for a perjury enhancement, then it can't be plainly erroneous to side with one side of the split as opposed to another.

[00:27:49] Speaker 03:
And so I see I'm out of time.

[00:27:50] Speaker 03:
Actually, I may have 30 seconds.

[00:27:52] Speaker 03:
The last point I'll make is, even if you were to find that there were an error as to the obstruction of justice enhancement, I think you should find that there is no prejudice here.

[00:28:00] Speaker 03:
Because given that the court says this voted in my foreseeability to determination, it's clear that if you were to remand, the court would essentially just say, and thus I find it material and willful.

[00:28:12] Speaker 03:
It wouldn't change the court's determination.

[00:28:14] Speaker 03:
So I don't think they can show a reasonable probability of a different outcome on remand.

[00:28:19] Speaker 03:
Thank you.

[00:28:29] Speaker 01:
Hi, so I'll start with the government's suggestion about the facts.

[00:28:33] Speaker 01:
I think the district court did find that Miss Rodriguez foresaw

[00:28:37] Speaker 01:
that NIR would take the pills.

[00:28:39] Speaker 01:
And I think that was clear error.

[00:28:41] Speaker 01:
And I'll point the court toward ER 38, where it says, the misconduct leading to death was foreseeable to Ms.

[00:28:48] Speaker 01:
Rodriguez.

[00:28:50] Speaker 01:
I think that is, for the reasons we've discussed, I think that was a clear error.

[00:28:54] Speaker 01:
I will also say in response to the government's point, this court does review any fact finding supporting sentencing, whether a departure,

[00:29:04] Speaker 01:
or a variance here, the court did both, reviews it to make sure there is a factual basis for that finding.

[00:29:12] Speaker 01:
And that's Gull related to the failure to explain point.

[00:29:15] Speaker 01:
Gull says, you know, the larger the departure, the more the explanation is needed.

[00:29:19] Speaker 02:
Council, I'm sorry to interrupt your rebuttal.

[00:29:21] Speaker 02:
What lines on page 38 are you referencing?

[00:29:24] Speaker 01:
Yes, yes.

[00:29:24] Speaker 01:
So I am looking at lines four through six on 38.

[00:29:29] Speaker 04:
It says, as I found the correct- Which page are you looking at?

[00:29:32] Speaker 01:
ER38, 1ER38, lines 4 through 6 says, it is true that that boated into the court's finding of the foreseeability of the misconduct leading to death.

[00:29:44] Speaker 01:
We were talking about Ms.

[00:29:45] Speaker 01:
Rodriguez specifically.

[00:29:46] Speaker 01:
It's a little hard to parse, which is why I agree this court has the express findings requirement when it comes to obstruction.

[00:29:58] Speaker 01:
One other point I'll say is that I think many of the foreseeability cases the government cites and discussed with you all involve cases where the defendant was aware of who the possible victims would be, right?

[00:30:10] Speaker 01:
A husband having a gun would know that his wife might have access to it in the same home.

[00:30:14] Speaker 01:
And here the facts are pretty different and very unusual, I'll say.

[00:30:17] Speaker 01:
And then finally on the plain error point,

[00:30:21] Speaker 01:
Um, we did specifically request that the court find that the statement was not material.

[00:30:27] Speaker 01:
That's in our, um, objection to the PSR at 2ER 105.

[00:30:32] Speaker 01:
Um, unless the court has any further questions.

[00:30:36] Speaker 04:
Thank you, counsel.

[00:30:39] Speaker 04:
Mr. Burcham?

[00:30:44] Speaker 05:
Your Honor, unless the court has any questions, I'm prepared to submit the matter for Mr. Martin.

[00:30:47] Speaker 04:
All right.

[00:30:49] Speaker 04:
Okay, United States versus Rodriguez is submitted and this court is in recess for this week.

[00:31:01] Speaker ?:
Thank you.

[00:31:02] Speaker 04:
All rise.

[00:31:14] Speaker 04:
This court for this session stands adjourned.