[00:00:04] Speaker 02:
Mr. Carr, I believe, is up.

[00:00:07] Speaker 02:
That is correct.

[00:00:08] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
Good morning, Your Honors.

[00:00:17] Speaker 03:
Good morning, opposing counsel.

[00:00:19] Speaker 03:
Welcome to Fabulous Las Vegas.

[00:00:21] Speaker 03:
My name is Jason Carr from the law firm of Hoffman and Tomchek.

[00:00:25] Speaker 03:
I represent the appellant in this matter, King Umoren.

[00:00:29] Speaker 03:
I intend today to go over three clusters of issues as the way I see it.

[00:00:33] Speaker 03:
This is my roadmap.

[00:00:34] Speaker 03:
The first is the waiver of appeal clause, the scope and applicability of it.

[00:00:38] Speaker 03:
The second is due in and how it applies to the facts of these cases.

[00:00:42] Speaker 03:
That's concentrated, of course, on the aggravated identity theft convictions from both cases.

[00:00:47] Speaker 03:
And the last thing I want to talk about is the obstruction of justice enhancement.

[00:00:51] Speaker 03:
So the waiver of appeal clause, the important thing to talk about first is what is the scope of it?

[00:00:57] Speaker 03:
There are two clusters of cases here.

[00:01:00] Speaker 03:
There's a 2016 case where my client pleaded without a plea agreement.

[00:01:04] Speaker 03:
So the 2016 issues are not implicated by the waiver of appeal clause.

[00:01:10] Speaker 04:
So we're talking about... The one feature of this that struck me as odd is that in the 2019 case, you have a plea agreement that talks about

[00:01:21] Speaker 04:
you know, what the parties positions will be on sentencing and then says that the sentence can't be appealed if certain conditions are met.

[00:01:31] Speaker 04:
But then the agreement also says that the parties agree to request that the district court impose sentence in this case at the same time it imposes case

[00:01:45] Speaker 04:
sentence in the 2016 case.

[00:01:49] Speaker 04:
So this plea agreement contemplated that there would be a consolidated sentencing and that makes a big difference to the sentence and it means that everything all gets put into one bucket

[00:02:01] Speaker 04:
and you do the groups and that's how the PSR is done here.

[00:02:05] Speaker 04:
There are groups and actually some of the 2016 and 2019 were grouped together into single groups, which is a significant benefit.

[00:02:15] Speaker 04:
And then it produces one guidelines range

[00:02:19] Speaker 04:
And one sentence, and it's the higher sentence in the 2019 and the lesser concurrent in 2016, if it's one sentence, one range, one calculation, and it's not appealable, how could that not extend to the whole case?

[00:02:35] Speaker 03:
Well, the first defect would be in the plea canvas on the 2016 case.

[00:02:41] Speaker 03:
Of course, the judge did not talk about a waiver of appeal clause, and under Rule 11, you have to be properly apprised of a waiver of appeal clause, and that just so would be a... Well, couldn't he, as part of the deal for the 2019 charge, agree to give up the appeal of the sentence in the 2016 case?

[00:03:00] Speaker 03:
That is not written into the terms of that plea agreement, and the plea agreement is on pages 2, 8, 307.

[00:03:08] Speaker 04:
You agreed to a consolidated sentencing that would put this all into one mixed-up bucket, and then it's not appealable.

[00:03:18] Speaker 04:
But now it's appealable to part of it, so you actually get to challenge the sentence, but through the lens of the other consolidated case, I don't see how that works.

[00:03:28] Speaker 03:
Well, it's an interesting question, Your Honor.

[00:03:30] Speaker 03:
One I admittedly did not anticipate.

[00:03:32] Speaker 03:
But the really, I mean, the

[00:03:36] Speaker 03:
One of the primary challenges I make to the waiver of appeal clause in the 2019 case is that the canvas in both cases is defective.

[00:03:46] Speaker 03:
So the question of whether it would also apply to the 2016 case, I mean, that magnifies that issue quite a bit.

[00:03:55] Speaker 03:
I mean, there would be no really credible argument that my client knowingly and intelligently pledged in the 2016 case.

[00:04:04] Speaker 03:
with anticipation that perhaps he would waive that right in the future, that would have to be explicitly set in the plea agreement, which is, under contra preferendum, the canon of construction of plea agreements, that that would be charged against the government.

[00:04:18] Speaker 03:
In order for that waiver to apply, it had to be clearly specified.

[00:04:21] Speaker 04:
Would you at least have a sort of related problem that the 2019 sentence isn't appealable

[00:04:30] Speaker 04:
Given that it's the longer sentence and is concurrent, how is there any prejudice to the 2016 case, even assuming you have an appeal, there's no prejudice?

[00:04:41] Speaker 03:
Well, two, there's three answers to that.

[00:04:43] Speaker 03:
The first is that case law from this circuit is very clear that getting any convictions overturned, even if it has no impact on the sentence, still affects the defense.

[00:04:52] Speaker 04:
It still should be done.

[00:04:54] Speaker 04:
I'm not disputing that you can appeal the 2016 conviction, but can you appeal the sentence apart from the conviction, how the sentence was calculated and the adjustments, when even if you have a right to appeal it, because of its concurrent nature to a sentence that can't be appealed, you have no prejudice.

[00:05:15] Speaker 03:
Well, your honor, this kind of filters back down to the underlying question of, is the waiver of appeal valid to either of the cases?

[00:05:25] Speaker 03:
And in my estimation, we made strong arguments that it wouldn't be.

[00:05:28] Speaker 03:
The primary argument, of course, is the Buchanan argument.

[00:05:31] Speaker 03:
The judge in this case, Buchanan says if the judge tells you you can appeal, then you can appeal.

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And that was our primary argument here.

[00:05:39] Speaker 03:
The judge says, you have certain rights to appeal.

[00:05:41] Speaker 03:
You cannot take, and he went through the standard colloquy about how, you know, your clients will be appointed for your appeal and get the transcripts.

[00:05:49] Speaker 03:
Yeah, it's very close to the pronouncement of Buchanan, which is based on this idea that if a court tells a defendant something, he's entitled to ruin.

[00:05:55] Speaker 04:
He clearly had the right to appeal the 2016 conviction.

[00:05:59] Speaker 03:
That's what you were just questioning, though.

[00:06:00] Speaker 04:
No, I've never convicted, nothing I've said suggests that he couldn't appeal the 2016 conviction.

[00:06:08] Speaker 04:
Everything that I've said,

[00:06:09] Speaker 04:
either in terms of whether the waiver covers 2016 or whether there's a no prejudice relates only to the 2016 sentence.

[00:06:17] Speaker 04:
So this was a sentencing and a judgment covering both cases.

[00:06:23] Speaker 04:
He clearly had a right to appeal the 2016 case.

[00:06:25] Speaker 04:
So I don't see how referring to a right to appeal, which does really exist, could create this sort of issue that undoes the appeal waiver.

[00:06:36] Speaker 03:
I see what you're saying.

[00:06:37] Speaker 03:
Here's another answer that I didn't get to is the obstruction of justice issue, which is a good issue for us.

[00:06:45] Speaker 03:
That is entirely predicated on the facts of the 2016 case.

[00:06:49] Speaker 03:
And that is the Chapter 3 enhancement.

[00:06:51] Speaker 01:
Explain that to me, counsel.

[00:06:53] Speaker 01:
I'm looking at the pre-sentence report.

[00:06:59] Speaker 01:
I don't know what the ER number is, but it's page 14 of the pre-sentence report.

[00:07:06] Speaker 01:
where in the pre-sentence report does it indicate that obstruction is only attaching to 2016?

[00:07:13] Speaker 03:
I would say first of all that there's a lot of defects in that paragraph and one of them is it doesn't clearly explain why obstruction would apply.

[00:07:22] Speaker 03:
But it could only apply to the 2016 case because 3C1.1 specifically states that it has to be related to an offensive conviction or an offensive conviction related conduct.

[00:07:34] Speaker 03:
And the only

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possible count that it could attach to is the 2016 conviction for impersonating an officer.

[00:07:42] Speaker 03:
And I'll note that that conviction has no element of using a firearm.

[00:07:46] Speaker 03:
It isn't even completely clear he used a firearm.

[00:07:49] Speaker 03:
And it's definitely not even remotely clear that he used the same firearm that he may have used in that offense.

[00:07:56] Speaker 03:
But it has no relation at all to the allegation of selling his business.

[00:08:00] Speaker 01:
But there's nothing in the PSR

[00:08:05] Speaker 01:
I mean, the PSR says the defendant's conduct was a flagrant violation of the court's order with regard to the weapons, not having weapons and the court's order applied to both cases, right?

[00:08:18] Speaker 01:
No, that is not correct.

[00:08:20] Speaker 03:
The order, you know, you'll find it on, sir, pages 8, the supplemental X of a record on pages 8 through 9.

[00:08:26] Speaker 03:
That's the court's pretrial release order.

[00:08:28] Speaker 03:
He was released in the 2016 case.

[00:08:31] Speaker 03:
He was not released in the 2000.

[00:08:33] Speaker 01:
And that was not a condition in the 2019?

[00:08:36] Speaker 01:
No, it wasn't because he was detained.

[00:08:38] Speaker 03:
All right.

[00:08:39] Speaker 03:
So I would like to just a couple of things.

[00:08:40] Speaker 03:
I'm running low on time.

[00:08:42] Speaker 03:
I have some factual issues I'd like to talk about really fast.

[00:08:45] Speaker 03:
The government makes an argument on obstruction that we didn't fully articulate an objection.

[00:08:50] Speaker 03:
One of our objection on appeal to the obstruction is that the district court didn't make any findings as to materiality or willfulness.

[00:08:58] Speaker 03:
If you look at on pages, sir, the supplemental extra for record,

[00:09:01] Speaker 03:
pages 28 through 29.

[00:09:03] Speaker 03:
That specific objection is the materiality is made.

[00:09:05] Speaker 03:
He says that even if he had the gun moved from his mom's house to storage, that's inconsequential, doesn't activate the obstruction.

[00:09:13] Speaker 03:
So that objection was preserved.

[00:09:17] Speaker 03:
I have so much to say, but I'm out of time.

[00:09:19] Speaker 02:
Can I just ask you one question here?

[00:09:21] Speaker 02:
Absolutely.

[00:09:22] Speaker 02:
What's your best argument why Dubin is inconsistent with our case, the Hong case?

[00:09:29] Speaker 03:
Well, the Hong case does go down the Dubin direction.

[00:09:35] Speaker 03:
But Dubin expanded upon the scope of Hong.

[00:09:39] Speaker 03:
And one thing that really crystallizes that is that the court changed its model jury instructions to add the new Dubin element as of August of 2023.

[00:09:51] Speaker 03:
So Hong did not address this added element.

[00:09:54] Speaker 02:
Both the 6th and the 10th Circuit have upheld

[00:09:56] Speaker 02:
what we did.

[00:09:58] Speaker 02:
And I'm just wondering, you're suggesting we ought to create some kind of a circuit split by going the way you're suggesting?

[00:10:04] Speaker 02:
Oh, no.

[00:10:04] Speaker 03:
Those cases are very factually dependent.

[00:10:06] Speaker 03:
And one of the only challenges that was made is a challenge I make, but I make many others, that the factual basis of the plea was inconsistent, made the plea invalid.

[00:10:17] Speaker 03:
And then the other

[00:10:19] Speaker 03:
So here, and Gorsuch talks about this, and the majority of people talks about this, that it's going to be very difficult to apply their new deuben formulation.

[00:10:27] Speaker 03:
And we see that.

[00:10:28] Speaker 03:
But one thing, in no way do you have to defer from the reasoning in those cases.

[00:10:34] Speaker 03:
It's very fact dependent.

[00:10:36] Speaker 02:
OK.

[00:10:36] Speaker 02:
Thank you very much, counsel.

[00:10:38] Speaker 02:
Let's hear from the government.

[00:10:42] Speaker 02:
Ms.

[00:10:43] Speaker 02:
Hart-Mahan, is that correct?

[00:10:45] Speaker 00:
Yes, Your Honor.

[00:10:46] Speaker 00:
Thank you.

[00:10:47] Speaker 00:
May it please the court, Alyssa Hart-Mahan for the United States.

[00:10:52] Speaker 00:
I think both the waiver, the defendant's challenge to the waiver provision and the plea agreements is easier to resolve if we keep in mind that Dubin did not materially change the law in this circuit.

[00:11:07] Speaker 00:
Dubin cites to the Hong case approvingly and discusses the Sixth Circuit precedent

[00:11:12] Speaker 00:
that this court followed at length.

[00:11:15] Speaker 00:
And this court's case law already required deception as to identity that's central to the predicate offense before Dubin.

[00:11:25] Speaker 00:
So there was no significant change in the law as a result of Dubin.

[00:11:29] Speaker 00:
And therefore, both of the pleas here were knowing and voluntary.

[00:11:33] Speaker 00:
The defendant certainly could have raised an objection under Hong or could have made that argument below, but made a strategic choice not to and received a substantial benefit for pleading guilty.

[00:11:43] Speaker 00:
As the court noted, the simultaneous sentencing and the government's agreement not to oppose concurrent sentences greatly reduced his sentencing exposure.

[00:11:52] Speaker 02:
Would you comment on my colleague's suggestion that there couldn't be any prejudice here because the longer of the two sentences basically

[00:12:03] Speaker 02:
nothing would be gained if he were even successful in his argument.

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

[00:12:07] Speaker 00:
So I agree with that point.

[00:12:08] Speaker 00:
One factual correction.

[00:12:09] Speaker 00:
The two sentences were identical.

[00:12:11] Speaker 00:
The court imposed the same 159 month sentence in both cases.

[00:12:15] Speaker 04:
I thought because there's no, is there an ID theft count in the 2016?

[00:12:22] Speaker 00:
Yes, both cases feature an aggravated identity theft.

[00:12:25] Speaker 00:
OK.

[00:12:27] Speaker 00:
And those all ran concurrently.

[00:12:29] Speaker 00:
So there was a single two-year.

[00:12:30] Speaker 04:
But they were both consecutive to the 135.

[00:12:32] Speaker 00:
Right.

[00:12:32] Speaker 00:
There was a single two-year consecutive term for all three of the Ag ID theft counts.

[00:12:38] Speaker 00:
But I agree that the defendant cannot show an effect to his substantial rights as to the sentence in the 2016 case.

[00:12:45] Speaker 02:
So basically, even if he wins, he doesn't gain anything on that point.

[00:12:49] Speaker 00:
Correct.

[00:12:50] Speaker 00:
We agree with that.

[00:12:51] Speaker 00:
Effectively, yeah.

[00:12:52] Speaker 00:
The sentence would remain the same with regards to his arguments regarding the waiver provision.

[00:12:58] Speaker 00:
This case is on all fours with good all this court's decision discussing why appellate waivers should be enforced even if there is a subsequent change in the law.

[00:13:10] Speaker 00:
And again, because there was no substantial change in the law, as a result of Dubin, this court should affirm the aggravated identity theft convictions.

[00:13:19] Speaker 00:
But even if there had been some change, the facts of these cases fit squarely within Dubin.

[00:13:24] Speaker 01:
Counsel, could you explain to me and tell me whether your friend is correct with regard to the obstruction

[00:13:32] Speaker 01:
enhancement.

[00:13:35] Speaker 01:
Did that just affect the 2016 sentence even though the sentences were identical?

[00:13:42] Speaker 00:
So because there was a single PSR in a single sentencing hearing, the obstruction enhancement, the 2019 and 2016 counts were all grouped together.

[00:13:53] Speaker 00:
And the obstruction enhancement applied to the group that included some of the 2019 counts.

[00:13:58] Speaker 00:
So the obstruction enhancement did affect the ultimate guidelines range, because the guidelines range was the same in both cases.

[00:14:06] Speaker 04:
Would you write that the underlying conduct

[00:14:09] Speaker 04:
relates to the 2016 and not to the 2019 that supported that enhancement?

[00:14:16] Speaker 00:
Yes, the conduct at issue occurred before he was detained in the 2019 case.

[00:14:21] Speaker 01:
So I might not be understanding this correctly, but if the obstruction enhancement affected both sentences and it only related to conduct for the 2016

[00:14:39] Speaker 01:
conviction, why would the appeal waiver for the 2019 conviction bar the defendant from claiming that the obstruction enhancement was improper?

[00:14:55] Speaker 01:
And so if we were, for example, to decide there was no appeal waiver with regard to 2016, wouldn't and we had to look at whether it was properly applied

[00:15:06] Speaker 01:
to the 2016 release, wouldn't that affect the sentence if we decided that that was wrong and that the appellate waiver wouldn't bar it?

[00:15:14] Speaker 01:
Or are you saying that because of the 2019 appellate waiver, because it was included in the 2019 sentence, he can't even appeal it for the 2016 conviction because any error would be harmless?

[00:15:28] Speaker 00:
The latter, yes, I believe.

[00:15:30] Speaker 00:
I would agree with the second part of your Honor's statement.

[00:15:33] Speaker 00:
And the reason is because the appellate waiver in the 2019 case

[00:15:36] Speaker 00:
covered the district court's calculation of the guidelines range.

[00:15:40] Speaker 00:
The defendant waived his right to appeal any sentence within or below the guidelines range.

[00:15:46] Speaker 00:
There was a single guidelines calculation that grouped both offenses together.

[00:15:50] Speaker 04:
The plea agreement said that the parties wanted a joint sentencing between the two cases.

[00:15:56] Speaker 00:
The government agreed not to oppose concurrent sentences on the two counts, and the district court ordered

[00:16:03] Speaker 00:
a consolidated sentencing hearing, which the government did not oppose.

[00:16:08] Speaker 04:
So did he move to request, did somebody move to request that?

[00:16:12] Speaker 00:
I think the parties contemplated that there would be a single sentencing hearing.

[00:16:16] Speaker 00:
So the government was on board with a consolidated sentencing hearing and concurrent sentences in this case.

[00:16:22] Speaker 04:
And everyone knows that under the guidelines, that's just going to mush it all into one bar.

[00:16:25] Speaker 00:
Correct.

[00:16:26] Speaker 00:
It's the real offense.

[00:16:27] Speaker 00:
Under the real offense approach of the guidelines, the district court considers all of the defendant's conduct and isn't limited to the charged offenses.

[00:16:34] Speaker 04:
If they had been done sequentially,

[00:16:37] Speaker 04:
That could have had a significant impact, adverse impact on the sentence.

[00:16:42] Speaker 00:
Yes, the defendant would have been facing a much longer sentence and two different aggravated identity theft, you know, 24-month mandatory add-ons for each case.

[00:16:52] Speaker 04:
Would have had to have been consecutive to each other?

[00:16:54] Speaker 00:
I believe that's correct, Your Honor.

[00:16:57] Speaker 00:
The defendant, by the time the defendant entered into the plea agreement in the 2019 case, he had already pleaded guilty in the 2016 case.

[00:17:05] Speaker 00:
So this was, you know, and the government did not agree about any sentencing recommendations as to the 2016 case.

[00:17:12] Speaker 02:
So the defendant got a really good deal here.

[00:17:15] Speaker 00:
That's our view.

[00:17:16] Speaker 00:
And that he shouldn't now be able to say,

[00:17:20] Speaker 00:
shouldn't be able to undo that deal now later with the benefit of hindsight.

[00:17:27] Speaker 00:
Briefly, with regard to the obstruction enhancement, the record makes clear that the objection the defendant raised below was a factual objection.

[00:17:36] Speaker 00:
He said, I did not possess the gun.

[00:17:38] Speaker 00:
I directed somebody else to move it.

[00:17:41] Speaker 00:
And therefore, any conduct by me does not rise to the level of obstruction of justice.

[00:17:46] Speaker 00:
And this court made clear in Jackson that a factual objection at sentencing does not preserve

[00:17:50] Speaker 00:
a different legal argument made on appeal.

[00:17:53] Speaker 00:
The district court did not have the opportunity to consider the legal arguments that the defendant is raising on appeal with regard to the obstruction enhancement.

[00:18:02] Speaker 00:
And the district court did make a factual finding at sentencing.

[00:18:05] Speaker 00:
The district court considered the transcript of the jail call in which the defendant told his wife that he had moved the gun from his mother-in-law's house to a storage facility and said, I find that this evidence supports

[00:18:17] Speaker 00:
the government's version of events that the defendant did in fact possess the gun, which was a clear violation of the conditions of pretrial release that were imposed when he was originally arrested in 2016.

[00:18:27] Speaker 00:
If the court has no further questions, we ask the court to affirm.

[00:18:33] Speaker 02:
We thank both counsel for your argument in the case.

[00:18:37] Speaker 02:
You don't have any rebuttal time.

[00:18:41] Speaker 02:
You used it up.

[00:18:44] Speaker 02:
Thank you very much.

[00:18:45] Speaker 02:
Case just argued is submitted.