[00:00:02] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:05] Speaker 00:
Vince Bronco, Federal Defenders, on behalf of Mr. Cavado.

[00:00:08] Speaker 00:
Section 3D1.2, subsection D, provides offenses covered by the following guidelines are to be grouped under this subsection.

[00:00:18] Speaker 00:
2L1.1 appears on that list.

[00:00:22] Speaker 00:
The district court's failure to follow this instruction requires remand in this case.

[00:00:28] Speaker 02:
I'm sorry.

[00:00:29] Speaker 02:
Did you have more than one victim, though, involved?

[00:00:33] Speaker 02:
We have a person who's killed and a person who's severely injured.

[00:00:36] Speaker 00:
Correct.

[00:00:37] Speaker 00:
But subsection D of this multiple grouping doesn't require the same victim.

[00:00:43] Speaker 00:
If you look at 3D 1.2, there's four provisions there.

[00:00:49] Speaker 00:
Only subsection A and subsection B require the same victim.

[00:00:55] Speaker 00:
And this is provided in the background to the commentary to this section.

[00:00:59] Speaker 00:
It specifically states, counts involving different victims or societal harms in the case of victimless crimes are grouped together only as provided in subsection C or D.

[00:01:11] Speaker 01:
So your argument, as I understand it, is structural within the guidelines.

[00:01:16] Speaker 01:
So when you look at the text of subsections C and D for whether the counts involve substantially the same harm, this fact pattern, these counts do not fall within the substantive language of C or D. The offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, some other measure of aggregate harm.

[00:01:41] Speaker 01:
if it's ongoing or continuous in nature.

[00:01:45] Speaker 01:
Instead, the only way this would fall under C or D is because the next sentence after subsection D says offenses covered by the following guidelines are to be grouped.

[00:01:57] Speaker 01:
So you're reading the next sentence in the list of guideline sections as part of subsection D?

[00:02:04] Speaker 00:
It is in subsection D. And this court has actually interpreted this exact subsection.

[00:02:10] Speaker 01:
I understand, but it was not addressing an instance with counts involving multiple victims.

[00:02:16] Speaker 01:
And it was a very terse analysis.

[00:02:18] Speaker 01:
It's not much.

[00:02:20] Speaker 01:
I think it's the Bueno Rostro, I'm forgetting the name.

[00:02:26] Speaker 01:
Buenos Rostro Torre.

[00:02:28] Speaker 01:
If I understand this right, this is the argument.

[00:02:30] Speaker 01:
It's based on the structure of the guideline.

[00:02:32] Speaker 01:
It's not the substance.

[00:02:34] Speaker 01:
This is not within subsection D because it falls within the description in the text, but because there's a list right after subsection D that includes this particular guideline 2L1.

[00:02:44] Speaker 00:
I think the list is in subsection D. That's the thing.

[00:02:49] Speaker 00:
Subsection D

[00:02:50] Speaker 00:
uh... as this court noted and initially has this uh... general principle uh... that includes these you know different uh... you know aggregate harms etc and then it provides a list of offenses that always are to be grouped under that section and then a list of of offenses that never are to be grouped with that section and then as this court held anything that's not on those lists is a case-by-case basis so what do we do with the tension in the commentary to the guidelines

[00:03:20] Speaker 01:
that explains how you have multiple victims and there was a proposal that these would be grouped.

[00:03:30] Speaker 01:
I think the example in the commentary is there's an escape and three different people are stabbed and the suggestion that they should all be grouped because it's one essentially event, one transaction.

[00:03:42] Speaker 01:
But then the drafters said, no, we wouldn't want to do that, because that would then not adequately account for the criminal conduct, and courts would have to depart or vary.

[00:03:54] Speaker 01:
So to me, there seems to be some tension in this language.

[00:03:58] Speaker 01:
So how do we resolve that?

[00:03:59] Speaker 00:
Well, I think if you read on in that, I think, very section, they go on to talk about that counts involving different victims will still count under, or can be groupable under subsection C or D. So yes, there are some tension, but I'd also like to push back a little bit on this contention that Mr. Caedo's conduct doesn't fall within this general principle, because that last general principle states

[00:04:28] Speaker 00:
that the behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

[00:04:37] Speaker 00:
Transportation of undocumented people are by nature ongoing in nature and 2L1.1 is a guideline that takes into account of all these circumstances.

[00:04:52] Speaker 00:
There's enhancements under 2L1.1

[00:04:54] Speaker 00:
for the number of people involved.

[00:04:57] Speaker 00:
There are enhancements for if there's reckless conduct, and there are enhancements for if someone is injured or even dies.

[00:05:05] Speaker 01:
That just accounts for different types of harm that can occur.

[00:05:09] Speaker 01:
It doesn't say that it's ongoing or continuous.

[00:05:11] Speaker 01:
This was one tragic car accident, right?

[00:05:13] Speaker 01:
It didn't continue.

[00:05:14] Speaker 01:
There weren't continuing events.

[00:05:16] Speaker 01:
He crashed the car, somebody was killed, and somebody was very, very seriously injured.

[00:05:21] Speaker 01:
One event.

[00:05:21] Speaker 00:
The transportation was a continuous event.

[00:05:24] Speaker 00:
It occurred over time.

[00:05:25] Speaker 00:
It was a continuing offense.

[00:05:27] Speaker 00:
It didn't happen at one specific moment.

[00:05:30] Speaker 01:
But the thing is... So every moment that the car's in motion as a continuing event, it's not one... So like the escape, where the person's moving through the prison, they're escaping, they stab three people, that's continuous?

[00:05:42] Speaker 00:
Well, that's the thing, that the stabbing is

[00:05:46] Speaker 00:
what caused the injury.

[00:05:47] Speaker 00:
I guess the accident could be here.

[00:05:49] Speaker 00:
But the problem is, again, it's not reading the full guideline because the full guidelines, when it's concerned with only the same victim, it says that in A and B. It says these offense must be under the same victim.

[00:06:04] Speaker 03:
How do you treat the, let me back up.

[00:06:07] Speaker 03:
My understanding is that the defendant here was originally paid, I think, $10,000 to transport some people.

[00:06:14] Speaker 03:
He did so successfully the first time.

[00:06:17] Speaker 03:
Then he did the second one, and that's the one we're talking about here, where someone was killed, someone seriously injured.

[00:06:23] Speaker 03:
Are you trying to group the earlier $10,000 event, I'll call it, and this one?

[00:06:30] Speaker 00:
I know that didn't group because that wasn't a charge count uh... they could look at the number of people but it wouldn't affect the guideline analysis so we're just looking at this single instance where the car crashed and somebody died and somebody was hurt, right?

[00:06:43] Speaker 00:
I would like to point out not only is this case controlled by Buenuestro Torres but you'd be creating a circuit split with the 10th circuit also I know where you're going with this but really?

[00:06:54] Speaker 01:
because in that case the court was considering pre-booker

[00:06:57] Speaker 01:
a departure, an upward departure.

[00:07:00] Speaker 01:
And the district court had created pseudo groups because the court didn't feel that the criminal contact was adequately covered.

[00:07:07] Speaker 01:
And it really focused on the departure and whether that was permissible, which now clearly it is after Booker.

[00:07:16] Speaker 01:
It almost seems to me what you're arguing for may be a Pyrrhic victory in that, sure, the offenses, we decide they should have been grouped and he wouldn't have received the one level enhancement, but that means the district court can still adequately consider the criminal conduct and may very well vary or depart and depart upwards significantly to account for a death and a serious injury.

[00:07:36] Speaker 00:
your honor two points to that there's actually two questions uh... first of all of your court your honor referred to a pre-booker case there's actually a post-booker case Munoz Teo where they specifically say yes these group under 3d one point one and they were actually charged with four counts resulting in death and they say they grouped uh... but then the court had discretion to do a departure and yes we would

[00:08:01] Speaker 00:
That's what should happen here.

[00:08:03] Speaker 00:
A remand to determine whether or not this district court judge, viewing all the circumstances, would impose a discretionary departure rather than the correct interpretation of the guidance.

[00:08:14] Speaker 01:
And both of those Tenth Circuit cases focus on the departure?

[00:08:17] Speaker 00:
Departure.

[00:08:18] Speaker 00:
Only departure.

[00:08:19] Speaker 00:
Do you want to save any of your time?

[00:08:21] Speaker 00:
I would.

[00:08:21] Speaker 00:
Thank you, Your Honor.

[00:08:24] Speaker 03:
All right.

[00:08:25] Speaker 03:
So let's hear from Mr.

[00:08:29] Speaker 03:
Is it Rahe?

[00:08:30] Speaker 03:
Rahe.

[00:08:31] Speaker 03:
OK.

[00:08:32] Speaker 04:
Thank you, Your Honors.

[00:08:33] Speaker 04:
May it please the court, Mark Rahe for the United States.

[00:08:35] Speaker 04:
Your Honors, the government's position is that the district court reasonably applied the grouping rules here.

[00:08:41] Speaker 04:
First and foremost, as the commentary says, the primary consideration of the grouping guideline is whether the offenses involve different victims.

[00:08:51] Speaker 04:
Here you have a death to one person, a serious bodily injury to another.

[00:08:57] Speaker 04:
under the defense view that none of that really matters.

[00:09:00] Speaker 04:
It's just as if it were another victim was crying.

[00:09:03] Speaker 04:
But we would point out the penultimate paragraph to the commentary.

[00:09:08] Speaker 04:
which defense counsel quoted, but he left out part of it.

[00:09:11] Speaker 04:
It says, counts involving different victims or societal harms in the case of victimless crimes are grouped together only as provided in subsection C and D. Elsewhere in the commentary, the Sentencing Commission makes clear that the run of the mill immigration offense, which we see all the time in Southern District when people are not hurt, not injured, that's the victimless crime.

[00:09:35] Speaker 04:
That's where the only

[00:09:37] Speaker 04:
interest in harm is society's enforcement of the immigration laws.

[00:09:41] Speaker 04:
In a rare case like this, or less common, our position is not unreasonable, and by that I mean what the district court concluded.

[00:09:49] Speaker 04:
Throughout the commentary, it's clear that the issue of different harms to different victims should be something that's paramount, and here

[00:09:58] Speaker 04:
I have already quoted that penultimate paragraph of the commentary.

[00:10:02] Speaker 04:
I would also point out to application note two, the last sentence specifically says, ambiguities should be resolved in accordance with the purpose of this section, as stated in the lead paragraph, to identify group counts involving substantially the same harm.

[00:10:19] Speaker 04:
I don't know.

[00:10:19] Speaker 04:
I haven't heard yet from the defense or seen in their briefs how a death to one human being and substantial injury to another

[00:10:28] Speaker 04:
can be considered substantially the same harm.

[00:10:31] Speaker 02:
Is there a Ninth Circuit precedent that binds this panel that we have to address if we're going to take your view?

[00:10:37] Speaker 04:
Well, if you're talking about Glen Rostro, the government's position, I mean, there's very little law that's approached this issue.

[00:10:46] Speaker 04:
Glen Rostro was not an immigration case, and that's one thing.

[00:10:50] Speaker 04:
It didn't involve actual harms or injuries to different people, let alone to any person.

[00:10:56] Speaker 04:
I think it was a forgery case.

[00:10:58] Speaker 04:
As this court is well aware, the defense is usually the first to point it out.

[00:11:03] Speaker 04:
Binding precedent is not, or you know, published opinion is not binding authority for a proposition that was never advanced.

[00:11:10] Speaker 04:
Here, again, we have a situation where it was very tragic.

[00:11:14] Speaker 04:
Somebody died and another person was injured.

[00:11:18] Speaker 04:
If you look at all the commentary here,

[00:11:20] Speaker 04:
It supports the government's position that those separate interests have to be vindicated.

[00:11:25] Speaker 04:
And so to sum up to your honor's question, when Rostro Taurus is there, and I know the defense relies heavily on it, but the government's position is that it's not controlling for those reasons.

[00:11:37] Speaker 04:
And especially here when you see that the commentary says, when there's cases of ambiguity, and the Sentencing Commission, in fact, I'm looking at note three, this is what they're

[00:11:49] Speaker 04:
assuming is the baseline.

[00:11:51] Speaker 04:
The defendant is convicted of three counts of unlawfully bringing aliens into the US, all counts arising out of a single incident.

[00:11:58] Speaker 04:
They're grouped together.

[00:11:59] Speaker 04:
That's a situation where there is no injury and there is no death.

[00:12:04] Speaker 04:
Again, the proposition the government is advancing, this is not radical and this is not something that's going to throw the guidelines into chaos.

[00:12:12] Speaker 04:
This is something that just simply allows for separate interests to life and limb to be taken into account.

[00:12:18] Speaker 01:
So there seems to be a problem, though, with the structure of the guideline, which was what I was getting at with your opposing counsel.

[00:12:26] Speaker 01:
Do you agree that the list of guidelines that the offenses are to be grouped, which is right after subsection D, is part of subsection D?

[00:12:36] Speaker 01:
Correct.

[00:12:36] Speaker 01:
Or it is part?

[00:12:37] Speaker 01:
You agree to that?

[00:12:38] Speaker 01:
Yes, that is or.

[00:12:38] Speaker 01:
Right.

[00:12:39] Speaker 01:
OK.

[00:12:39] Speaker 01:
So then you have the commentary saying when they're separate victims, it's grouped in accordance with either subsection C or D. That isn't, by your concession, part of subsection D.

[00:12:48] Speaker 01:
Okay, and then the other problem is that while Buen Rastro is very terse, and I agree with you it's distinguishable in the type of harm, it does say Congress has determined that such fences are categorically groupable under subsection 3D, 1.2D.

[00:13:08] Speaker 01:
And this is right after it's discussing.

[00:13:11] Speaker 01:
Here's the list.

[00:13:12] Speaker 01:
The offensive issue in Buenrosto-Torres was within the list.

[00:13:15] Speaker 01:
So how do we get around that?

[00:13:17] Speaker 01:
I mean, if our court has said they're categorically groupable.

[00:13:25] Speaker 04:
No, again, and I'll admit that's not good for the government's position.

[00:13:28] Speaker 04:
But again, if Buenrosto-Torres is not

[00:13:35] Speaker 04:
assuming a situation where people are actually hurt or injured, again, that was a forgery case, I don't see how that's, you know, that that broad proposition can therefore govern facts that were not before the court, and that's the Webster versus Fall principle.

[00:13:51] Speaker 01:
Do you argue that even if the district judge erred in the guidelines calculation, it would have been off by one point, that that's harmless?

[00:14:00] Speaker 01:
Yes.

[00:14:01] Speaker 01:
How could we decide it was harmless?

[00:14:03] Speaker 04:
The case called United States versus Munoz Camarena, the fifth footnote.

[00:14:07] Speaker 04:
And I'm familiar with that case because I argued it 10 odd years ago.

[00:14:11] Speaker 04:
The first opinion that came out there said there's no harmless error, we move for rehearing.

[00:14:16] Speaker 04:
in that the opinion was amended.

[00:14:18] Speaker 04:
In footnote five, Judge Prager said, I guess it was a procuring opinion, lays out four non-exclusive situations when you could find harmlessness.

[00:14:28] Speaker 04:
One of those is when, and it's the fourth one, when the court performs the sentencing analysis with respect to an incorrect guidelines range that overlaps substantially with the correct guidelines range such that the explanation for the sentence imposed

[00:14:44] Speaker 04:
is sufficient even as to the correct range.

[00:14:48] Speaker 04:
And the government's position is here with just the one level difference.

[00:14:51] Speaker 04:
What the defense wanted was a guideline range of 63 to 78, or I'm sorry,

[00:14:57] Speaker 04:
They wanted 57 to 71 months, what the district court found was 63 to 78, and then even after giving a variance, found 51 to 63.

[00:15:06] Speaker 04:
This is a very substantial overlap.

[00:15:10] Speaker 04:
And the district court gave a very thorough explanation, went over all the aggravating factors, the fact that the defendant had multiple times to yield to law enforcement and didn't, that somebody died, that somebody was injured, that the defendant did it before,

[00:15:25] Speaker 04:
then weighted against the mitigating factors, he's young, you know, he has a lot of family support, there's no challenge on this appeal to the sufficiency of that explanation.

[00:15:35] Speaker 04:
And so the government's position is that we fall under that footnote.

[00:15:38] Speaker 04:
And I believe we cited an unpublished case, it's Solis, and that's just another, you know, that's an example of a panel of this court finding harmless air in the same situation.

[00:15:48] Speaker 04:
Now.

[00:15:49] Speaker 03:
Council, let me ask you this.

[00:15:51] Speaker 03:
Arguendo, if we were to agree

[00:15:54] Speaker 03:
the other side that the district court erred on the grouping issue.

[00:15:59] Speaker 03:
How could we say with certainty that the district court sentencing error was harmless?

[00:16:04] Speaker 04:
Well, based on the Munoz-Camarena, now I know they cite a case, and I forget what the name of it was, the very last sentence the court said, with certainty, we can't stay that.

[00:16:15] Speaker 04:
But Munoz-Camarena cannot be ignored.

[00:16:18] Speaker 04:
It's on the books for at least 10 years.

[00:16:20] Speaker 01:
But how do we know?

[00:16:21] Speaker 01:
I mean, we would have to conclude that the district court was going to impose the same sentence.

[00:16:24] Speaker 01:
And here there was a departure down by a couple of points.

[00:16:29] Speaker 01:
And then the district court sentenced at the very bottom of that range.

[00:16:33] Speaker 01:
But isn't it conceivable that if

[00:16:36] Speaker 01:
The departure happened from one point lower, and the range was lower.

[00:16:40] Speaker 01:
The district court would have sentenced at the bottom of the lower range.

[00:16:44] Speaker 04:
Even admitting that it's conceivable, the government's position is that isn't enough for harmless error.

[00:16:49] Speaker 04:
And this is interesting, too.

[00:16:51] Speaker 01:
I know in the reply brief, the defense side... But isn't it really the flip side of that, that we have to be convinced that the district court would have imposed the same sentence anyway?

[00:16:59] Speaker 04:
No, I would say not, Your Honor.

[00:17:00] Speaker 04:
In fact, that's what I was getting to.

[00:17:02] Speaker 04:
There's a case.

[00:17:03] Speaker 04:
What it is is that more probable than not that the error did not materially affect the sentence.

[00:17:10] Speaker 04:
And the government's position here is, you know, that doesn't say with certainty, but that with certainty is sort of a gloss that's put at the very last sense of an opinion.

[00:17:18] Speaker 03:
Even taking that standard, how can we say that here, with certainty?

[00:17:23] Speaker 04:
Again, our position doesn't have to be with certainty.

[00:17:26] Speaker 04:
You know, Munoz-Camarena, we can't just ignore if it says you have a substantial overlap in ranges and that the explanation given is good enough as to both, the government's position is it's not more probable than not that that's a material verdict.

[00:17:43] Speaker 04:
I can never stand before you and say it's certain that the court

[00:17:46] Speaker 04:
would give the same sentence.

[00:17:47] Speaker 04:
And what's ironic is, for a while, and I believe.

[00:17:50] Speaker 01:
Plus the court said it.

[00:17:51] Speaker 04:
Well, and guess what?

[00:17:52] Speaker 04:
When the court said it, immunos camarena, that was Judge Burns.

[00:17:56] Speaker 04:
He said, you know what?

[00:17:57] Speaker 04:
If I don't do that plus eight in that case, I'm giving the exact same sentence.

[00:18:00] Speaker 04:
And what did the Ninth Circuit turn around and said?

[00:18:03] Speaker 04:
You know what?

[00:18:03] Speaker 04:
You can't insulate the case from appellate review simply by saying, even in as many words, I would have given the same sentence.

[00:18:12] Speaker 01:
So as a practical matter, I'm not sure

[00:18:16] Speaker 01:
why the government really cares.

[00:18:18] Speaker 01:
What we're talking about is a re-sentencing.

[00:18:20] Speaker 01:
If the one point enhancement doesn't apply, the district court's well within its rights to apply a departure to account for the criminal conduct.

[00:18:31] Speaker 01:
The sentence could be the same or it could be worse for the defendant if it's re-sentenced.

[00:18:34] Speaker 01:
Well, I understand.

[00:18:35] Speaker 04:
But you could probably say that about most sentencing appeals that come to this court.

[00:18:39] Speaker 04:
I'd see it as my job simply to defend the record as it is.

[00:18:43] Speaker 04:
Here, this issue was preserved.

[00:18:45] Speaker 04:
It was litigated.

[00:18:47] Speaker 04:
You know, the defense was asking for 24 months in a case where somebody died and somebody was hurt.

[00:18:52] Speaker 04:
They didn't even skip a beat when the court said, you know what, I'm not going to group these offenses.

[00:18:59] Speaker 04:
All the government's saying is, if there is press in on the books, Munoz-Camarena, it's still valid law.

[00:19:05] Speaker 04:
It specifically describes a situation that applies to this case.

[00:19:09] Speaker 04:
At least one other panel has done that before, Solis.

[00:19:13] Speaker 04:
That's the government's, you know, that's me putting my best

[00:19:16] Speaker 04:
Good faith, effort forward.

[00:19:18] Speaker 04:
Of course it's always possible.

[00:19:19] Speaker 04:
Your time is up.

[00:19:20] Speaker 03:
Let me ask Mike.

[00:19:21] Speaker 03:
All right.

[00:19:23] Speaker 03:
Thanks very much for the government.

[00:19:25] Speaker 03:
Appreciate it.

[00:19:26] Speaker 03:
Let's hear our reply, rebuttal.

[00:19:32] Speaker 00:
I'd like to try to make three points, two about the merits and one about harmlessness.

[00:19:37] Speaker 00:
First point is the government has relied heavily on the commentary, but the commentary can't expand the definition that's in actual guideline.

[00:19:45] Speaker 00:
And again, as your honor noted, Wayne Rostow clearly held that Congress had determined that such offenses are categorically groupable.

[00:19:56] Speaker 00:
Another key sentence, because the government has relied on hate, but the facts of this case are different.

[00:20:01] Speaker 00:
is when Rostro also said, if the offenses at issue are covered by one of the listed guidelines, we do not analyze the facts of the particular case.

[00:20:11] Speaker 00:
So the fact that there's some factual differences here about victims doesn't matter to the Ben Rostro analysis.

[00:20:19] Speaker 00:
A few things about harmlessness.

[00:20:21] Speaker 00:
I think the most important thing about harmlessness here is what the district court actually said.

[00:20:28] Speaker 00:
and in the district court and this is on the are twenty three actually said with this guideline range in mind meaning the incorrect guideline range and then conducted its thirty five fifty three analysis so the load star of its analysis was on the incorrect guideline range and we simply do not know what sentence the district court would get to if that guideline range was was

[00:20:52] Speaker 00:
uh... one level lower could have been five or six months less and that's all we're asking for is a remand to find that out.

[00:20:59] Speaker 00:
Other questions?

[00:21:00] Speaker 03:
Thanks to both council for the argument.

[00:21:02] Speaker 03:
The case of United States versus Cavado-Moncada is submitted.