[00:00:00] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:02] Speaker 02:
Todd Borden from the Federal Public Defender's Office, and I represent the Appellant, Thomas Keller.

[00:00:07] Speaker 02:
Judge Bennett, I'm going to endeavor to save three minutes for a rebuttal.

[00:00:10] Speaker 02:
I will watch the clock.

[00:00:11] Speaker 02:
I have three issues today.

[00:00:12] Speaker 02:
They're pretty distinct.

[00:00:14] Speaker 02:
I plan to go over them by first discussing the suppression matter, then non-delegation, then sentencing, although please, if any of you have a burning desire to hear anything else in a different order or sooner, please let me know.

[00:00:24] Speaker 02:
As to the suppression, the district court erred when it refused to hold an evidentiary hearing

[00:00:31] Speaker 02:
on whether Agent Munoz was able to immediately discern that Keller's diary contained patient information, particularly here where two other agents testified it took months of study for them to be able to understand Keller's handwriting, which very much lived up to the stereotypes.

[00:00:46] Speaker 00:
So there's no question that the warrant specifically authorized the seizure of journals, right?

[00:00:52] Speaker 00:
That's right.

[00:00:52] Speaker 00:
And there's no question that from essentially immediately looking at what you're saying you wanted an evidence you're hearing on, aside for the moment from the content, it would be almost immediately apparent that this was a journal, right?

[00:01:10] Speaker 02:
Yes.

[00:01:11] Speaker 02:
All right, go ahead.

[00:01:12] Speaker 02:
So I agree with that, Your Honor.

[00:01:14] Speaker 02:
The other thing I guess I would point to is that

[00:01:17] Speaker 02:
In the context of the warrants, journal appears in the context of a number of professional documents.

[00:01:25] Speaker 02:
Journals and ledgers, for example, are mentioned in the warrant application.

[00:01:30] Speaker 02:
So I do think there's a question about whether or not this is a journal as opposed to a personal diary, particularly given the content of it.

[00:01:40] Speaker 00:
Well, one of the categories, though, and I'm looking at, I think, ER 2296, which I think

[00:01:46] Speaker 00:
is the first page of attachment B, journals, et cetera, et cetera, et cetera, that refer or relate to the ordering, prescribing, or dispensing of any controlled drug.

[00:01:59] Speaker 00:
And wouldn't it be almost immediately apparent upon, for example, opening the one that's

[00:02:07] Speaker 00:
has at the cover page, University of California, Berkeley, that this refer or relate to ordering, prescribing or dispensing any controlled drug.

[00:02:19] Speaker 02:
So I would dispute that, Your Honor, in that if you look at the journal, I mean the first page, for example, it's the weather, it's politics, the sort of indignities of aging, it's all sorts of purely personal matters.

[00:02:33] Speaker 02:
There's nothing that's professional there.

[00:02:34] Speaker 02:
Scattered in here and there, there are occasional sort of complaints about patients and things like that, but I would dispute that it is immediately apparent, and I think at the very least we should have had an evidentiary here

[00:02:44] Speaker 01:
I mean, it is, it is, after the work that's gone into understanding the handwriting, it is apparent that he is talking about patients.

[00:02:54] Speaker 01:
So really the question is, at the time, was that apparent?

[00:02:59] Speaker 01:
And, you know, Judge Chabria

[00:03:02] Speaker 01:
looked at this and said, there's some things that are hard to read, but even on a quick perusal, you can see that there's patient names and medical terms used, so why is that wrong?

[00:03:16] Speaker 02:
I guess I'm not making a necessarily clear argument there.

[00:03:18] Speaker 02:
What I am making is an argument that, it's a hard standard review to make, but what I think the argument I am making is that he functionally made a fact finding on a disputed fact.

[00:03:26] Speaker 02:
I think we did raise, by pointing to the other agent's testimony that it took months of study to understand what was going on there, I think we raised a material factual dispute on this question.

[00:03:36] Speaker 02:
And I think we should have gotten an evidentiary hearing just because functionally, a dispositive aspect of his order hinged on a factual finding that we maintain is disputed.

[00:03:46] Speaker 01:
I don't want to take you off your order, but I would be curious to hear from you on the sentencing issue.

[00:03:50] Speaker 01:
I'm happy to go there.

[00:03:56] Speaker 02:
Our positions the district court here erred when it deferred to the guidelines commentary definition of converted drug weight, which is really what overwhelmingly drove Dr. Keller's guidelines calculations here, and it's really for two reasons.

[00:04:09] Speaker 02:
First, the commission improperly promulgated what is really just an empty placeholder definition of converted drug weight that relies entirely on the commentary to define the concept.

[00:04:18] Speaker 02:
But second, and perhaps I think even more clearly, the converted drug weight definition here, at least as it pertains to oxycodone, is not reasonable and does not fall within the zone of ambiguity for the guidelines text.

[00:04:31] Speaker 01:
But why is it not actually just incorporated, expressly incorporated into the guideline itself?

[00:04:40] Speaker 02:
I point the court to Castillo, which is sort of the leading case now within the circuit on the question of Kaiser and its application to the guidelines.

[00:04:47] Speaker 02:
And there the court held quite broadly that guidelines commentary, no matter what, is subject to the strictures of Kaiser.

[00:04:56] Speaker 02:
So I don't think the government's position is correct that simply because the text of the guideline refers to commentary, that commentary isn't subject to the same set of restrictions that are contained in the Kaiser.

[00:05:10] Speaker 01:
can incorporate other documents, that's a common thing, and drafting of provisions and contracts and lots of things.

[00:05:17] Speaker 01:
And here we have the actual guidelines that expressly refer to the commentary and incorporate them, which is different than Castillo.

[00:05:25] Speaker 02:
It is different, Your Honor, but I guess I would say that the separation of powers concerns that drive the whole reason for having, you know, sort of going back to since, and the reason why, you know, guidelines commentary has to go through notice and comment rulemaking and has to be submitted for Congress for congressional approval.

[00:05:41] Speaker 02:
We have a situation where there's that mandatory congressional review for the very thing that actually drives the entire guidelines here didn't happen.

[00:05:47] Speaker 01:
It did go through congressional review here, right?

[00:05:50] Speaker 02:
Okay.

[00:05:50] Speaker 02:
I misspoke, Your Honor.

[00:05:52] Speaker 02:
In this case, it happened to have gone through it.

[00:05:53] Speaker 02:
I should note, though, in Castillo, it's the exact same thing.

[00:05:56] Speaker 02:
It also went through congressional review.

[00:05:58] Speaker 02:
But, you know, our position is that, and the courts have consistently held this, that despite the fact a piece of commentary may go through congressional review, that's sort of just a, you know, sort of a

[00:06:08] Speaker 02:
superfluous action by the Commission because Congress, as this Court has held, doesn't actually have the authority to reject or modify that guideline commentary.

[00:06:16] Speaker 00:
So, counsel, I have on the same issue a different question.

[00:06:20] Speaker 00:
As you're aware, the government has argued even if there was error, it was harmless.

[00:06:24] Speaker 00:
Yes.

[00:06:25] Speaker 00:
And you've said no, it isn't.

[00:06:26] Speaker 00:
That's right.

[00:06:26] Speaker 00:
So it's a pretty long sentencing transcript.

[00:06:30] Speaker 00:
Yes.

[00:06:31] Speaker 00:
And we've all read the entirety and what I take from this

[00:06:37] Speaker 00:
is the district judge said many, many, many times that there are issues with the converted drug weight, there are issues with the guidelines, but when he looks at the facts and all of the 3553A factors

[00:06:55] Speaker 00:
sort of irrespective of the guidelines and the converted drug weight, given especially that somebody died, which he mentions, that this is the sentence.

[00:07:07] Speaker 00:
And you sort of argued that the words he used aren't enough.

[00:07:12] Speaker 00:
Are there magic words?

[00:07:14] Speaker 02:
Not magic words, Your Honor.

[00:07:16] Speaker 02:
I really point the court to the Munoz-Comorana case.

[00:07:18] Speaker 02:
That sort of outlines four sort of examples of where guidelines are maybe harmless.

[00:07:22] Speaker 00:
But they're not listed as it has to be.

[00:07:25] Speaker 00:
That's true, Your Honor.

[00:07:26] Speaker 00:
And I mean, to me, having read this transcript, unless they're where I am right now, and you can convince me otherwise, is if there isn't the requirement of magic words,

[00:07:42] Speaker 00:
This judge did everything that he could possibly do to indicate that under 3553A, irrespective of the converted drug weight, all of the factors which he went through in detail, this is the minimum sentence.

[00:07:58] Speaker 00:
It's never going to be lower than 30 months.

[00:08:01] Speaker 00:
Why doesn't that work?

[00:08:03] Speaker 02:
Your Honor, a few reasons.

[00:08:04] Speaker 02:
First, Judge Chabria did not, in fact, acknowledge the guidelines range that we argued for, and now argue for an appeal, which was... Is the artisan.

[00:08:10] Speaker 02:
Correct, Your Honor.

[00:08:11] Speaker 02:
And so I think that... And the other thing to bear in mind is, you know, going all the way back to Gall, really the first big post-Booker decision talking about sentencing procedure, the Supreme Court emphasized the guidelines, though advisory, are the starting point and initial benchmark.

[00:08:24] Speaker 02:
And here, the guidelines range we're advocating for an appeal was never, ever acknowledged by Judge Chabria.

[00:08:30] Speaker 02:
And so, you know, I don't think it can be that the judge can sort of just say, you know, what happened here, the guidelines are complex, but I'm just, we're not going to really do, it's not really going to be a guideline sentencing case, we're just never going to calculate them.

[00:08:43] Speaker 02:
The Supreme Court has said that is category, and this court in Cardi, has said that's categorically procedural sentencing error.

[00:08:49] Speaker 02:
So Judge Chabria needs to, you know, start from what the actual guidelines range is, and he did not do that here.

[00:08:55] Speaker 02:
I acknowledge it was a thoughtful sentencing hearing, and he, you know,

[00:08:59] Speaker 02:
But without having acknowledged the guidelines range we're asking for, it's hard to say the error was harmless because he never really took into account that position.

[00:09:06] Speaker 02:
Although he did certainly indicate he'd write everything that everybody had submitted.

[00:09:09] Speaker 02:
Well, that's true, Your Honor.

[00:09:10] Speaker 02:
That's true, Your Honor.

[00:09:12] Speaker 02:
The sentencing briefing in this case was fairly voluminous, and there was kind of a layered set of arguments being made by the defense.

[00:09:20] Speaker 02:
So there was a Kimbrough argument about sort of a policy challenge really to the commentary's definition of oxycodone.

[00:09:28] Speaker 02:
There was disputes about drug weights.

[00:09:30] Speaker 02:
So there was a lot in play there.

[00:09:32] Speaker 02:
And I do think it is notable the fact that he did not actually ever, you know, didn't say Kaiser, didn't talk about

[00:09:38] Speaker 02:
you know, sort of any of these stinson sort of arguments, nor acknowledge the ultimate guidelines range we're advocating for.

[00:09:45] Speaker 02:
So I think, and finally I just note that, you know, guidelines error is sort of a unique sort of sentencing error that is almost always harmful, particularly that point to the Supreme Court's decision in Molina Martinez, where even on a plain error standard, the court said, you know, most of the time, usually, even on plain error, a resentencing is going to be warranted.

[00:10:03] Speaker 00:
And I know you've told us correctly, I think, that this is not a mood issue when your client gets out because of the supervised release.

[00:10:11] Speaker 00:
That's right.

[00:10:11] Speaker 00:
But when is your client currently scheduled to get out?

[00:10:14] Speaker 00:
He is out now.

[00:10:14] Speaker 00:
So he's out now.

[00:10:17] Speaker 02:
If there are further questions on the sentencing matter, I would like to briefly make a pitch for the non-delegation doctrine.

[00:10:24] Speaker 02:
So here, the Controlled Substances Act sets out no legal standard for when physicians who are authorized to prescribe controlled substances become felons.

[00:10:32] Speaker 02:
Instead, the substantive legal standard for criminal liability comes solely from an administrative regulation promulgated by the attorney general, and that's the 21 CFR 1306.04.

[00:10:42] Speaker 02:
This violates the non-delegation doctrine because there was no intelligible principle guiding the Attorney General in promulgating that regulation, which strangely by its own terms purports to impose criminal penalties through the regulation itself.

[00:10:54] Speaker 00:
So there's no principle where the Attorney General may promulgate and enforce any rules, regulations,

[00:11:00] Speaker 00:
et cetera, which he may deem necessary and appropriate for the efficient execution of his functions under the chapter, which include designating pursuant to statutes for the manufacture, distribution, and dispensing of controlled substances.

[00:11:18] Speaker 02:
Yeah, and I think Your Honor is quoting the 871 language there.

[00:11:22] Speaker 00:
Yes, 871 and then 821.

[00:11:23] Speaker 02:
Yeah, so a few points there, Your Honor.

[00:11:25] Speaker 02:
I don't think that provides a sufficient intelligible principle.

[00:11:28] Speaker 02:
It's incredibly broad.

[00:11:30] Speaker 02:
And I guess I would contrast that with the Tooby decision, which involved a non-delegation challenge to the attorney general's authority delegated by Congress to temporarily schedule certain substances on schedule one.

[00:11:40] Speaker 02:
But there, the court upheld against the non-delegation challenge.

[00:11:43] Speaker 02:
But there was really an intricate set of factors the attorney general was required to consider.

[00:11:47] Speaker 00:
And you're also arguing we should adopt a special non-delegation rule in criminal cases?

[00:11:53] Speaker 00:
That's right, Your Honor.

[00:11:54] Speaker 00:
Has anybody ever done that?

[00:11:56] Speaker 02:
So to be less to the question open, and Justice Gorsuch's dissent in Gundy strongly suggests justice.

[00:12:03] Speaker 02:
So your answer to my question is no.

[00:12:05] Speaker 02:
That is correct, Your Honor.

[00:12:06] Speaker 00:
Yeah.

[00:12:06] Speaker 03:
So I have one procedural question on this issue.

[00:12:09] Speaker 03:
The Supreme Court has granted cert in a case that's going to present a non-delegation issue.

[00:12:13] Speaker 03:
Do you think that we should sit on this issue until they decide that case?

[00:12:17] Speaker 02:
That would be my request, Your Honor.

[00:12:18] Speaker 02:
My client's out.

[00:12:21] Speaker 02:
So I think the sentencing issue is an interesting one and not harmless, to be clear.

[00:12:26] Speaker 02:
But I acknowledge, as a practical matter, waiting, I think, is definitely fine.

[00:12:32] Speaker 02:
Unlike some of the prior non-delegation doctrine cert grants, this one, like the Jureski case, for example, they ended up deciding that on a Seventh Amendment civil jury trial right, and they sidestepped it.

[00:12:42] Speaker 02:
But this one, the two questions presented both squarely posed non-delegation.

[00:12:45] Speaker 02:
And insofar as I do think there's pretty strong, you know, gun due, there was no majority opinion, it was just a plurality.

[00:12:51] Speaker 02:
The doctrine does seem to be somewhat in flux.

[00:12:54] Speaker 02:
So yes, that's a long-waited answer of saying yes, Judge Forrest.

[00:12:58] Speaker 02:
If there are no further questions, I'd like to reserve the balance of my time.

[00:13:25] Speaker 04:
Good morning, Your Honors.

[00:13:26] Speaker 04:
Please the court.

[00:13:26] Speaker 04:
Kelly Volcar on behalf of the United States.

[00:13:29] Speaker 04:
This court should affirm Keller's conviction because first, the district court did not err in denying Keller's motion to suppress his journal because it squarely fell within the scope of the warrant where it referred to patient names and dispensing controlled substances.

[00:13:43] Speaker 04:
I'd like to start by addressing a couple of the questions of the court on that topic before moving to sentencing and the other issues discussed.

[00:13:51] Speaker 04:
First, labeling the journal as professional versus personal reads a gloss into the warrant that simply isn't there.

[00:13:59] Speaker 04:
As Judge Bennett noted, attachment B is clear in what was within the scope of the warrant.

[00:14:05] Speaker 04:
And that included journals, books, records, or correspondence.

[00:14:09] Speaker 04:
And it all started with the phrase documents including but not limited to.

[00:14:14] Speaker 04:
And then it said journals, books, records, or correspondence.

[00:14:18] Speaker 04:
that relate to or refer to the ordering, prescribing, dispensing of any controlled drugs.

[00:14:24] Speaker 04:
There has never been any dispute about the content of the journal, what is actually stated.

[00:14:30] Speaker 04:
The only dispute has been over how quickly the agent could have discerned what those words said.

[00:14:39] Speaker 03:
Maybe you're getting to this, but sort of to follow up on some questioning that Judge Briss had to your friend across the aisle.

[00:14:45] Speaker 03:
What is your argument in terms of if we were to look at that and conclude, wow, I don't know, I can't figure out that handwriting.

[00:14:51] Speaker 03:
I have no idea what that says.

[00:14:53] Speaker 03:
Might fall within the scope of the warrant, might not.

[00:14:55] Speaker 03:
What's the governing law in terms of what do we do in the meantime as we figure that out?

[00:15:00] Speaker 04:
Well, Your Honor, first the Xi case that I cited in my brief is instructive on that in the sense of that was a case where the agents gathered documents that were in Chinese and did not have a Chinese interpreter there.

[00:15:12] Speaker 04:
However, the Ninth Circuit held that it was reasonable to conclude that they fell within the scope of the warrant, but here we have more than that.

[00:15:21] Speaker 04:
Here we have the district court making a factual finding, as Judge Bress noted, that upon a quick perusal of the journal, there were certain words, there were certain phrases that were discernible.

[00:15:32] Speaker 04:
And even if every word couldn't be read in the moment that the agent

[00:15:36] Speaker 04:
picked up multiple different journals and identified this particular one as falling within the scope of the warrant.

[00:15:43] Speaker 04:
It was sufficient.

[00:15:44] Speaker 04:
There was enough that the agent could determine, could identify sufficient terms that this particular journal he did seize did fall within the warrant.

[00:15:53] Speaker 04:
And the district court said upon a quick perusal, it was clear that there were patient names and medical information and things of that nature.

[00:16:02] Speaker 04:
And just, I'm sure Your Honor has reviewed the journal, but within just the first few pages, and particularly when the doctor wrote in all caps, it was discernible that on page two there were multiple different names.

[00:16:15] Speaker 04:
There was information, medical information, such as age, height.

[00:16:20] Speaker 04:
and condition, if I'm not mistaken.

[00:16:24] Speaker 04:
Within the first few pages there were multiple references to paying doctor or being a legal drug dealer.

[00:16:30] Speaker 04:
Within the first two dozen pages there was information about how much financial monetary revenue his business was making.

[00:16:39] Speaker 04:
Again, upon a quick perusal of the journal, even if every word couldn't have been made out at the moment the agent reviewed it, there was enough identifying information that it did fall within the four corners of the journal.

[00:16:49] Speaker 04:
within the four corners of the warrant, and the warrant itself did not make a professional versus personal distinction.

[00:17:03] Speaker 04:
And again, Judge Chabria's finding would be entitled to clear error review in the government's perspective.

[00:17:10] Speaker 04:
Moving to the sentencing issue, unless there are further questions on the journal, the district court did not err in using the converted drug weight that is expressly incorporated by reference from the commentary to the text of the guidelines.

[00:17:23] Speaker 04:
As Judge Bress was exploring with my colleague, my friend across the aisle, this is different than Castillo.

[00:17:30] Speaker 04:
In Castillo, there was text,

[00:17:32] Speaker 04:
And there was commentary.

[00:17:33] Speaker 04:
And they were inconsistent with one another.

[00:17:35] Speaker 04:
One in the text had a list that did not include inchoate crimes.

[00:17:40] Speaker 04:
And the commentary had a list that did include inchoate crimes.

[00:17:43] Speaker 04:
That is far from the situation that we are faced with here, where the drug-related guidelines have a very different structure, intent, and purpose.

[00:17:55] Speaker 04:
And that structure, intent, and purpose is to have the most commonly listed drugs in the body of the text.

[00:18:02] Speaker 04:
heroin, fentanyl, cocaine, methamphetamine, et cetera.

[00:18:06] Speaker 04:
And then for other drugs and or if there's a combination of drugs, it uses a catch-all provision labeled converted drug weight.

[00:18:14] Speaker 04:
Above the line, converted drug weight is explicitly described as referring to the tables that are included in the commentary.

[00:18:22] Speaker 03:
Should we think at all about the fact that, as has been pointed out, when that change was made, it went through notice and comment, went through a formal process.

[00:18:30] Speaker 03:
But my understanding is that the commentary, that table that's in the commentary, could change without going through such a formal process.

[00:18:39] Speaker 03:
So should we think about that in terms of, I mean, I agree with you, it looks like there's an express incorporation.

[00:18:45] Speaker 03:
The guideline itself references this table and says it's in the commentary.

[00:18:50] Speaker 03:
I don't know how else you expressly reference something.

[00:18:53] Speaker 03:
But if it's expressly referenced something that could change without a formal process, I guess I'm rambling a bit.

[00:19:01] Speaker 03:
How does that factor into our analysis of this issue?

[00:19:04] Speaker 04:
Yes, Your Honor.

[00:19:05] Speaker 04:
And I will note that my friend across the aisle points out that the commentary may not be modified or disapproved by Congress.

[00:19:14] Speaker 04:
And I will say we do have at least one example, and it's in the Kimbrough case, actually, where the Kimbrough case talks about the crack cocaine and the ratio.

[00:19:24] Speaker 04:
And the Sentencing Commission tried multiple times to change the ratio from that 100 to 1.

[00:19:30] Speaker 04:
Congress rejected it.

[00:19:31] Speaker 04:
And when I looked at the citations that the Kimbrough case refers to, it rejected not just the text but also the commentary.

[00:19:39] Speaker 04:
And I say that to your honor's question because I think that we live in a world where it is up to the Sentencing Commission whether or not they submit that commentary.

[00:19:49] Speaker 04:
But I think that they would be opening themselves up to particular scrutiny and particularly

[00:19:55] Speaker 04:
potentially an arbitrary and capricious challenge if they were just to change that ratio day to day.

[00:20:01] Speaker 04:
And again, that's not what we have here.

[00:20:03] Speaker 01:
What we have... To me, your argument that it is here effectively part of the guidelines and should be regarded as part of the guidelines doesn't work if the commentary was not actually submitted to Congress and went through notice and comment.

[00:20:17] Speaker 01:
Because if it didn't, then it's really shouldn't, as a formal sense, doesn't really seem like a guideline.

[00:20:22] Speaker 01:
So I think your argument does depend on the fact that this table did go through that process.

[00:20:28] Speaker 04:
That's correct, and it really depends on the fact that here is incorporated by reference and it avoids the separation of powers issues that I think were raised in Castillo because it was submitted.

[00:20:39] Speaker 03:
Well, my point is what happens going forward?

[00:20:42] Speaker 03:
Is it going to have to go through that formal process if anything happens in the commentary going forward?

[00:20:47] Speaker 03:
And if your answer is yes, what's the authority for that?

[00:20:50] Speaker 04:
Your Honor, I think to answer both Your Honor's questions, I would start by saying I think it is incorporated by reference here and it did undergo the comment and review process with Congress.

[00:21:02] Speaker 04:
We do have examples from the Kimbrough case when Congress has rejected text and commentary.

[00:21:08] Speaker 04:
And I think, Your Honor, if going forward the sentencing commission were to change it and not submit it,

[00:21:14] Speaker 04:
I don't have any authority on what would occur in that instance.

[00:21:20] Speaker 04:
I'm not sure that it has happened.

[00:21:22] Speaker 00:
The government still maintain its position that even if there were error, it was harmless.

[00:21:27] Speaker 00:
Yes, your honor.

[00:21:28] Speaker 00:
So your discussion of that is

[00:21:32] Speaker 00:
Fairly short on page 62 of your brief, and unless I'm missing it, it does not explicitly address your friend's argument that here it couldn't possibly be harmless because the district court did not explicitly mention

[00:21:48] Speaker 00:
their proposed guideline range of zero to six.

[00:21:51] Speaker 00:
So if I'm right that that's not explicitly addressed on page 62, why don't you tell me what your argument is as to that specific question where your friend is saying that at the very least the court had to have acknowledged their zero to six guideline range and without that acknowledgement it can't be harmless.

[00:22:14] Speaker 04:
Yes, Your Honor.

[00:22:15] Speaker 04:
As Your Honor pointed out, and my friend across the aisle noted, there were multiple arguments in the alternative that were made at sentencing.

[00:22:23] Speaker 04:
The district court had both parties walk through their calculation.

[00:22:26] Speaker 04:
It was the defendant who walked through the calculation that led to the guidelines the district court ultimately adopted, the 51 to 63 months.

[00:22:35] Speaker 04:
And that was based on a drug quantity for the counts of conviction, rather all drugs prescribed to AM over the course of their

[00:22:44] Speaker 00:
But they certainly were not, by doing that, abandoning their written argument as to the Kaiser issue, right?

[00:22:54] Speaker 04:
That's correct, Your Honor.

[00:22:55] Speaker 04:
And I am trying to find the citation that I don't have quite at my fingertips.

[00:23:01] Speaker 04:
But the district court did say in the sentencing hearing that it would not consider a noncustodial sentence.

[00:23:08] Speaker 04:
And I would argue that that is the most powerful example of, even though the district court didn't say, I'm not going to find a range of zero to six months, the district court did say, this isn't a case where a noncustodial sentence is appropriate.

[00:23:22] Speaker 01:
Right, that's true, but that doesn't really answer.

[00:23:25] Speaker 01:
That just tells us that Judge Chabria, no matter what, was going to give some time in prison.

[00:23:30] Speaker 01:
I mean, here your argument requires us to conclude that it's more probable than not that Judge Chabria would have given a sentence that's five times the upper range of the guidelines, 30 months as compared to six.

[00:23:45] Speaker 01:
I don't see what evidence in the record there would be for that.

[00:23:49] Speaker 04:
Your Honor, the evidence I point to in the record, and I did find the citation for what I was referring to, it's 1ER21.

[00:23:54] Speaker 04:
The evidence in the record for that, Your Honor, is Judge Chabria's repeated statements that the 3553A factors were what were driving his sentence, and that he didn't think a non-custodial sentence was appropriate here.

[00:24:08] Speaker 04:
And I would say that in saying that, he was implicitly rejecting the idea that the drug simply couldn't be counted.

[00:24:14] Speaker 04:
That simply because the ratio for oxy is 6,700 to one, and it's simply because of the policy arguments, because there was also the Kimbrough policy arguments were argued in the sentencing hearing as well, that none of those

[00:24:31] Speaker 01:
arguments were moving him below 30 months.

[00:24:34] Speaker 01:
Do you think it's reasonable to conclude that if Judge Chabria had believed the range was zero to six months, he would have imposed a sentence of 30?

[00:24:43] Speaker 04:
Your Honor, I believe so based on what he said, and I agree with Judge Bennett's questions to my friend across the aisle.

[00:24:49] Speaker 04:
I don't know how the district court could have been clearer, and we don't make harmlessness arguments for sentencing in every case.

[00:24:56] Speaker 04:
But this is a case where the judge did walk through multiple different calculations, did not explicitly say zero to six months, however, did find that a non-custodial sentence would not be appropriate, and the 3553A factors dictated nothing less.

[00:25:10] Speaker 00:
So what you're looking at is where the district court said applying the 3553A, regardless of the amount, and there he's talking about the drug quantity, regardless of the amount, applying the 3553A factors, the idea of a noncustodial sentence in this case seems virtually impossible.

[00:25:27] Speaker 00:
So that's where you were quoting from, right?

[00:25:30] Speaker 00:
That's correct, Your Honor.

[00:25:31] Speaker 00:
And the only place where the noncustodial, because as you indicate, your friend walked through a guideline range that

[00:25:39] Speaker 00:
included the drug conversion.

[00:25:42] Speaker 00:
And so the only place a non-custodial sentence was even on the table was in the zero to six.

[00:25:48] Speaker 04:
That's correct, Your Honor.

[00:25:49] Speaker 00:
That's your argument on the judge essentially saying the zero is without saying zero to six.

[00:25:56] Speaker 00:
When he talks about non-custodial, that's the only place where it was suggested.

[00:25:59] Speaker 04:
That's correct, Your Honor.

[00:26:00] Speaker 04:
And I will also note, as Your Honor pointed out to my friend, the defendant is out.

[00:26:05] Speaker 04:
He has been released from custody as of two months ago.

[00:26:08] Speaker 04:
And this court's cases are clear that where remanding for resentencing would allow a shorter term or no term of supervised release to be imposed, that renders it not moot.

[00:26:22] Speaker 04:
But I would note that this is a case where, as the PSR paragraph 74 shows, it is a mandatory minimum three years of supervised release, and there is no discretion.

[00:26:33] Speaker 04:
So if it is remanded for resentencing, the district court will have to simply just reimpose the three years of supervised release.

[00:26:40] Speaker 04:
I didn't get the chance to refat.

[00:26:41] Speaker 03:
Sorry.

[00:26:41] Speaker 03:
I apologize.

[00:26:42] Speaker 03:
You may have fully talked through this, and I missed it.

[00:26:44] Speaker 03:
But how do you distinguish the Dominguez-Soseto case, where we basically said,

[00:26:49] Speaker 03:
District Court, you can say all day long that no matter what happens, the sky could fall.

[00:26:54] Speaker 03:
I'm giving this sentence, and that doesn't insulate you from starting at the right starting point.

[00:26:58] Speaker 04:
That's correct, Your Honor.

[00:26:59] Speaker 04:
Not distinguished, but I believe it does state that it's a non-exhaustive list.

[00:27:03] Speaker 04:
I do think that it's meant to be applied in very narrow circumstances when it comes to sentencing.

[00:27:09] Speaker 04:
But I simply agree with Judge Bennett that this is one of those circumstances where the District Court

[00:27:15] Speaker 04:
took great care to analyze each of the defendant's different arguments.

[00:27:19] Speaker 04:
There were multiple different guideline calculations that were possible here.

[00:27:22] Speaker 04:
The district court walked carefully through each of what those were.

[00:27:26] Speaker 04:
He made his finding.

[00:27:27] Speaker 04:
Our argument is still that he was correct in the sense of he could look to the commentary because it was incorporated by reference.

[00:27:34] Speaker 04:
But even if he didn't, I think that he made it as clear as he could that he still would have, even if the range were different, he still would have found based on the 3553A factors that the sentence should be 30 months.

[00:27:48] Speaker 04:
And I think that because it was a non-exhaustive list in that case from this court, that this is as clear as the district court could be and that this is an instance where the harmlessness should apply.

[00:28:01] Speaker 01:
I don't think that really is accurate to say he couldn't have been clearer.

[00:28:04] Speaker 01:
I mean, clearly he could have formally acknowledged the zero to six month range and said nonetheless would impose 30, which he didn't do.

[00:28:12] Speaker 01:
So that's something he could have done.

[00:28:14] Speaker 01:
I mean, I think the issue here for your position is cases like Dominguez, like Munoz Camarena, which discussed these issues and have encountered them in situations that seem frankly even more favorable to the government than what we have here.

[00:28:27] Speaker 04:
Your Honor, I guess respectfully I would say that I think they were not exhaustive.

[00:28:32] Speaker 04:
They were examples, but I think that here there could still also be, this is still a situation that should be harmless.

[00:28:39] Speaker 04:
And again, because I'm low on time, I really want to pivot back to our main argument, which is that the court need not reach harmlessness if it finds that there was no sentencing error in the first instance because the commentary is incorporated by reference in this specific provision.

[00:28:55] Speaker 04:
And also, I do want to note, because it's in my friend's brief and the reply brief, the court recently, after our brief, handed down the Trumbull case, and it found that the fact that the commentary underwent review by Congress was important to the third step of Kaiser.

[00:29:12] Speaker 04:
So we didn't get to discuss it today, but if the court doesn't agree with our incorporation by reference argument, there is still the fact that we would survive scrutiny under the Kaiser framework.

[00:29:22] Speaker 00:
So, counsel, you're out of time.

[00:29:23] Speaker 00:
One final question.

[00:29:25] Speaker 00:
The government have a position as to whether on the delegation question we should wait for the Supreme Court.

[00:29:33] Speaker 04:
Yes, Your Honor, the government's position is that you should not wait for the Supreme Court.

[00:29:36] Speaker 04:
And the reason there is because, as Judge Bress is familiar with Mel Guardiaz, this is another case where Congress has designated a crime.

[00:29:45] Speaker 04:
It is a crime to distribute drugs.

[00:29:47] Speaker 04:
Congress only delegated to the Attorney General

[00:29:50] Speaker 04:
the ability to fill out the details of who is authorized and who is unauthorized.

[00:29:54] Speaker 04:
And as we described in our briefs, there's many statutory phrases that the attorney general has to work from in terms of determining when the physicians are authorized, registered physicians are authorized or not authorized, and when they are operating outside of the scope of their usual practice, they are not authorized.

[00:30:12] Speaker 04:
And I do not think that the question before the Supreme Court that Judge Forrest referenced, which is in a civil case, I don't think that's going to change that basic concept.

[00:30:21] Speaker 00:
All right.

[00:30:21] Speaker 00:
Thank you, counsel.

[00:30:22] Speaker 04:
Thank you, your honor.

[00:30:34] Speaker 02:
I'm going to confine my comments to just a few things related to the sentencing argument.

[00:30:39] Speaker 02:
As far as the incorporation by reference, I think it's important to note that there's no real limiting principle to the government's position.

[00:30:46] Speaker 02:
Under their view, as long as the commission could promulgate a guideline where they simply say, the offense level for this is as articulated in the guidelines commentary below.

[00:30:55] Speaker 02:
And then the entirety of what that guideline would be would purely come from the commentary.

[00:31:01] Speaker 01:
Isn't the limiting principle that it has to go through the same process that a guideline would have to go to?

[00:31:05] Speaker 01:
And if it doesn't, then you would be right.

[00:31:10] Speaker 02:
I guess I disagree, Your Honor, that whether or not this particular guideline went through the notice and comment rulemaking and submission to Congress, sorry, I should say this particular commentary went through that.

[00:31:19] Speaker 02:
I don't think that's dispositive.

[00:31:21] Speaker 02:
Otherwise, Castillo would have had to have been decided the other way.

[00:31:24] Speaker 02:
The guidelines, commentary, and Castillo went through notice and comment rulemaking and was submitted to Congress.

[00:31:28] Speaker 02:
That's what Judge Pryor of the Eleventh Circuit said in their onboard opinion in Dupree.

[00:31:32] Speaker 01:
But it didn't have the express incorporation in the way that we have here.

[00:31:36] Speaker 02:
I mean, I suppose, but I'm not sure why that distinction matters here, because if what matters is that it goes through the process or not, then I guess I don't see that as being a critical distinction.

[00:31:50] Speaker 02:
The other thing I'd point to is this quote's pre-en pinto decision, where it expressly stated that Congress lacks the power to modify or disapprove of the application notes.

[00:31:59] Speaker 02:
That's this court's precedent.

[00:32:00] Speaker 02:
I know my friend on the other side says that may have happened in the crack context.

[00:32:04] Speaker 02:
And that's the first I've heard this talk about.

[00:32:06] Speaker 02:
I haven't researched it.

[00:32:07] Speaker 02:
But the crack disparity issue, that is in the text of the guideline.

[00:32:11] Speaker 02:
There might be some commentary that also talks about it.

[00:32:13] Speaker 02:
But crack cocaine is one of those major substances that's in the text.

[00:32:16] Speaker 02:
So I don't think that would be dispositive.

[00:32:19] Speaker 02:
Go ahead.

[00:32:21] Speaker 03:
You know, the fact that I went through notice and comment, it's sort of like it's not, and I think this is where Judge Russ is coming from, perhaps, it's not commentary anymore.

[00:32:30] Speaker 03:
It's been elevated because it's gone through a different process.

[00:32:34] Speaker 03:
So in terms of my question about what do we do going forward, is it commentary or is it guideline going forward and how can it be changed and is it subject to a formal process?

[00:32:43] Speaker 03:
I mean, would there be any mechanism for us to just be like, well,

[00:32:46] Speaker 03:
It looks expressly incorporated, so we're going to deem it guideline, even though it's labeled in the document commentary.

[00:32:57] Speaker 02:
I don't think so.

[00:32:58] Speaker 02:
I've seen no court that has taken that approach.

[00:33:00] Speaker 02:
Kaiser's been out for a while.

[00:33:03] Speaker 02:
That approach I just don't think has any support in any case law I've seen, and I don't think the government has pointed to any.

[00:33:08] Speaker 01:
Well, it's a kind of new problem because, you know, in light of Castillo, we're now having to examine the relationship between the guidelines and the commentary.

[00:33:16] Speaker 01:
And, of course, the Sentencing Commission is doing the same thing by elevating some of what's in the commentary into the guidelines and some of the most recent amendments, not in the case here yet.

[00:33:24] Speaker 02:
Right.

[00:33:24] Speaker 02:
That's right.

[00:33:24] Speaker 02:
And it's notable that, I mean, that's why I don't think it's, you know, the consequences of this are necessarily so severe from the court's perspective, because we have a functioning sentencing commission at the moment.

[00:33:33] Speaker 02:
And after Castillo, the sentencing commission did, you know, they moved that language from the commentary to the guidelines text.

[00:33:40] Speaker 02:
So, you know, I think the commission, at least on some level, recognizes that that has to happen.

[00:33:46] Speaker 02:
And I think it's not necessarily any different here.

[00:33:50] Speaker 02:
I see that I'm over, so barring any further questions, I would urge the court to reverse.

[00:33:58] Speaker 00:
All right.

[00:33:59] Speaker 00:
We thank counsel for their arguments, and the case just argued is submitted.