[00:00:00] Speaker 03:
Please approach and proceed.

[00:00:13] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
Edie Cunningham on behalf of Mr. Peralta Vega.

[00:00:18] Speaker 04:
I'd like to try to reserve two minutes.

[00:00:21] Speaker 03:
Council please be reminded that the time shown on the clock is your total time remaining.

[00:00:25] Speaker 04:
Thank you.

[00:00:27] Speaker 04:
The district court made a mistake in failing to impose a monetary forfeiture order at the sentencing hearing, and the government did not appeal or move to correct the error under Rule 35.

[00:00:38] Speaker 04:
It is now way too late to include the monetary forfeiture in the judgment, just as it would be way too late

[00:00:52] Speaker 04:
to impose a mandatory minimum sentence, prison sentence.

[00:00:56] Speaker 00:
Doesn't the statute contemplate, however, that there will be circumstances where restitution will be or monetary will be imposed later?

[00:01:06] Speaker 04:
Your Honor, there are narrow circumstances when that can be done, when the government has not completed its investigation and needs to trace assets and such.

[00:01:16] Speaker 04:
But those circumstances did not exist here.

[00:01:19] Speaker 04:
The rule itself says it can only be done

[00:01:22] Speaker 04:
when the court cannot determine the appropriate amount.

[00:01:27] Speaker 04:
The court could have determined the appropriate amount.

[00:01:31] Speaker 03:
There are two reasons.

[00:01:32] Speaker 03:
Counsel, at that juncture of the proceedings, how could the court have determined the appropriate amount if the parties were not certain about what that amount was?

[00:01:42] Speaker 04:
Well, Your Honor, for one thing, the government in pre-senancing briefing had already explained to the court

[00:01:51] Speaker 04:
why the forfeiture order had been reduced from 35,000 to 21,000.

[00:01:56] Speaker 04:
And that is at ER 112 note 1.

[00:02:00] Speaker 04:
The government explained the court had not apparently thoroughly reviewed the briefing.

[00:02:05] Speaker 04:
So that's one reason.

[00:02:07] Speaker 04:
The second reason is, well, it could have been.

[00:02:09] Speaker 04:
It already had been determined as the government had presented in its pleading.

[00:02:14] Speaker 04:
The covering prosecutor was at the sentencing hearing, not the prosecutor assigned to the case.

[00:02:20] Speaker 04:
the covering prosecutor was also not prepared for the hearing and told the court basically when the court asked why was this forfeiture amount reduced, he said something like short answer, your honor, I don't know.

[00:02:33] Speaker 04:
Defense counsel had informed the court at the beginning of the hearing that all the briefing had been done and it was ready for determination.

[00:02:42] Speaker 04:
So if the court had thoroughly read the briefing and if the prosecutor who was covering the hearing had been prepared,

[00:02:49] Speaker 04:
there would have been no issue.

[00:02:51] Speaker 04:
There was no further investigation to be done.

[00:02:53] Speaker 04:
The amount had already been determined.

[00:02:55] Speaker 04:
Everything was ready to go, as defense counsel said.

[00:03:00] Speaker 04:
So under those circumstances, a general forfeiture order is not allowed, and the advisory committee notes... You mean it's not allowed.

[00:03:08] Speaker 04:
It's not permitted under the rule.

[00:03:11] Speaker 04:
As the advisory committee notes explain, which are persuasive, it is a very rare procedure

[00:03:17] Speaker 04:
that is only appropriate when the government has not completed its investigation and asked for more time and provides good cause for that.

[00:03:25] Speaker 04:
And that is discussed in the Grayson Enterprises case.

[00:03:28] Speaker 04:
That's a Seventh Circuit case cited in the briefs.

[00:03:30] Speaker 04:
Do you have a Ninth Circuit case?

[00:03:32] Speaker 04:
Your Honor, there is no Ninth Circuit case on this.

[00:03:36] Speaker 04:
But Ninth Circuit cases, there are several cited in the brief for the proposition that the advisory committee notes are persuasive.

[00:03:44] Speaker 03:
Right, but for the proposition that

[00:03:47] Speaker 03:
the no forfeiture order is allowed under these circumstances.

[00:03:51] Speaker 03:
Is there a Ninth Circuit case that says that?

[00:03:55] Speaker 04:
Well, the authority for that, Your Honor, is the rule itself, the language of the rule and the advisory committee notes.

[00:04:03] Speaker 03:
But I'm asking you if we have interpreted the rule and the statute the way you're asking us to interpret it today.

[00:04:12] Speaker 04:
There is no Ninth Circuit case to my knowledge on this issue, but it is clear from the language of the rule and the advisory committee.

[00:04:18] Speaker 02:
Which language specifically are you relying on?

[00:04:21] Speaker 02:
Excuse me?

[00:04:22] Speaker 02:
What language specifically are you relying on?

[00:04:25] Speaker 04:
The language in 32.2 B2C, which says if the district court cannot calculate the amount of the forfeiture penalty, then this procedure is permitted.

[00:04:39] Speaker 04:
And it's also clear, Your Honor.

[00:04:40] Speaker 03:
But didn't the district court say that it could not calculate it at that time?

[00:04:44] Speaker 03:
That's why there would be a hearing?

[00:04:46] Speaker 03:
Well, Your Honor, it could have.

[00:04:48] Speaker 03:
But I'm asking you, is that what the district court said?

[00:04:51] Speaker 04:
Well, the district court said that it wanted more clarification.

[00:04:56] Speaker 04:
And again, this was the government's fault for not being prepared to defend its amount at the hearing.

[00:05:01] Speaker 03:
But regardless, if the district court was of the view that it could not calculate the amount,

[00:05:07] Speaker 03:
then it said it could not.

[00:05:09] Speaker 03:
And why wouldn't it fall within the language then?

[00:05:12] Speaker 04:
Well, Your Honor, it could.

[00:05:15] Speaker 04:
The district court made a mistake.

[00:05:17] Speaker 04:
It could.

[00:05:17] Speaker 04:
The government had already presented all of its evidence in its briefing.

[00:05:21] Speaker 02:
Is it your view that if the district court says that, I think I fall within this, you know,

[00:05:29] Speaker 02:
to see provision that I cannot identify, and it happens to actually be wrong because you could have identified that that removes the forfeiture authority?

[00:05:37] Speaker 02:
Is that your position?

[00:05:39] Speaker 04:
Well, yes, Your Honor, because this is the final forfeiture order.

[00:05:43] Speaker 04:
And if I may further explain, when we think about forfeiture, forfeiture is something that the government proffers.

[00:05:53] Speaker 04:
if it's mandatory, if it's included in the indictment and if it satisfies the statutory requirements.

[00:05:59] Speaker 04:
It is really, if you read the structure of the rule and if you need, if you read the language of the rule and if you read the advisory committee notes, it's really the government that needs to ask for this because the only way that a general forfeiture order may be amended is on a government motion under rule 32.2E1.

[00:06:22] Speaker 04:
And that brings me to the second reason why this wasn't a general forfeiture order.

[00:06:28] Speaker 04:
Neither the court nor the parties discussed it in this way or followed the procedures.

[00:06:34] Speaker 04:
The court didn't say at the sentencing hearing, well, I'm going to impose this general order and then it will be subject to amendment under Rule 32.2E1 later, which is also required by the rule.

[00:06:46] Speaker 04:
When the hearings and the briefing occurred after the sentencing hearing,

[00:06:52] Speaker 04:
The parties in the court were not talking about a general order that needed to be amended under 32.2E1.

[00:07:00] Speaker 04:
They were acting as though no forfeiture order had ever been entered.

[00:07:05] Speaker 04:
And then the government never moved to amend the order under Rule 32.2E1.

[00:07:10] Speaker 04:
So the procedures were not followed and I can avow that certainly defense counsel didn't see it this way and there's nothing in the record to indicate that the court or the government saw it this way either.

[00:07:23] Speaker 04:
And there's nothing outside the record.

[00:07:25] Speaker 04:
an email that was a government off the record email to chambers that was the subject of a motion to expand, which was never ruled on, but that also further supports my position if the court wishes to rule on.

[00:07:38] Speaker 03:
As a procedural matter, what order was appealed?

[00:07:43] Speaker 03:
What forfeiture order was appealed?

[00:07:47] Speaker 04:
We appealed the final forfeiture order because it was entered.

[00:07:52] Speaker 04:
It was improper, and we are objecting it's an improper order and untimely.

[00:07:56] Speaker 04:
And really what this... Let me ask you this.

[00:07:59] Speaker 03:
So you appealed the... You appealed from the judgment that was entered on August 19, 2021.

[00:08:07] Speaker 04:
That was the first appeal, Your Honor, and that appeal was dismissed because my client didn't want to

[00:08:13] Speaker 04:
challenge his sentence or the supervised release, which was all that was imposed.

[00:08:17] Speaker 04:
The second appeal.

[00:08:18] Speaker 04:
The second appeal we filed after the improper forfeiture order was entered

[00:08:23] Speaker 04:
in order to argue that it was improper and could not be amended under Rule 36 because this was not a clerical error.

[00:08:29] Speaker 03:
Is that the amended one or the one that you say could not be entered?

[00:08:33] Speaker 03:
Which one of those?

[00:08:34] Speaker 04:
There is no amended order.

[00:08:36] Speaker 04:
She just entered a final forfeiture order.

[00:08:39] Speaker 04:
She didn't amend anything.

[00:08:40] Speaker 04:
If you go back and look at the final order, it does not discuss an amendment.

[00:08:44] Speaker 04:
It acts as though nothing has been done.

[00:08:46] Speaker 04:
But were there two orders?

[00:08:47] Speaker 04:
There's not two orders.

[00:08:48] Speaker 04:
There's one.

[00:08:49] Speaker 04:
There's a tardy

[00:08:51] Speaker 04:
forfeiture order entered in May, I believe, of 2022 that is tardy and cannot be effectuated because it's way too late to amend the judgment.

[00:09:00] Speaker 04:
And there's nothing in the original judgment.

[00:09:03] Speaker 04:
But there were two judgments.

[00:09:05] Speaker 03:
There were not two judgments.

[00:09:06] Speaker 03:
So at what proceeding did the court say it couldn't enter the

[00:09:11] Speaker 03:
amount.

[00:09:12] Speaker 03:
What was that?

[00:09:13] Speaker 03:
That was at the sentencing hearing and the judgment entered after that hearing.

[00:09:17] Speaker 03:
That was one judgment.

[00:09:18] Speaker 03:
That was one judgment.

[00:09:19] Speaker 03:
There were two judgments.

[00:09:20] Speaker 03:
There was a judgment after the conviction, correct?

[00:09:23] Speaker 03:
And then a judgment after the forfeiture, right?

[00:09:25] Speaker 04:
A second judgment has never been entered.

[00:09:28] Speaker 04:
She has never entered a second judgment.

[00:09:30] Speaker 04:
How was the forfeiture order effectuated then?

[00:09:33] Speaker 04:
It hasn't been effectuated.

[00:09:35] Speaker 04:
It's called a final forfeiture order.

[00:09:37] Speaker 02:
The forfeiture order says on ER 7, it says it shall be made part of the sentence and included in the judgment.

[00:09:45] Speaker 02:
And the rule says that you can do that by reference.

[00:09:49] Speaker 02:
So why doesn't that make it part of the judgment?

[00:09:51] Speaker 04:
Well, Your Honor, it's not proper under Rule 36 because it wasn't a clerical error leaving it out of the first judgment.

[00:09:58] Speaker 04:
The only way that you can amend a judgment is via Rule 36 or Rule 35.

[00:10:04] Speaker 04:
And if I may, I just want to explain that this is really about the finality of a sentence.

[00:10:10] Speaker 04:
It comes under Green Law and Adonisio.

[00:10:13] Speaker 04:
It's a final judgment rule.

[00:10:16] Speaker 02:
But there also was a preliminary forfeiture order before the sentencing.

[00:10:19] Speaker 02:
There was a preliminary forfeiture order.

[00:10:21] Speaker 02:
And it had a lot of findings, and then it also had an amount in it tentatively.

[00:10:25] Speaker 02:
Your Honor, it did.

[00:10:27] Speaker 02:
So I think it was the same amount in the final one.

[00:10:29] Speaker 04:
It was, but for some reason the district court wasn't satisfied with it and didn't enter it at the sentencing hearing.

[00:10:35] Speaker 04:
And now it's just like a mandatory minimum sentence, Your Honor, and the defendant is under no

[00:10:43] Speaker 04:
obligation to object to the court's failure to enter a mandatory minimum sentence at sentencing.

[00:10:49] Speaker 03:
But, counsel, procedurally, that order, it was placed on the record, right?

[00:10:55] Speaker 03:
It's part of the documents, right?

[00:10:57] Speaker 04:
Not the monetary forfeiture order, not at the first, not at the sentencing.

[00:11:01] Speaker 04:
The one before the sentencing, right?

[00:11:04] Speaker 03:
Yes, but the court did not accept that.

[00:11:06] Speaker 03:
I'm just trying to procedurally see what documents that are part of the record in your view.

[00:11:11] Speaker 03:
That's not part of the record in your view, the pre-sentence, the preliminary?

[00:11:17] Speaker 04:
Oh, it's part of the record, yes, but it was not adopted by the court at sentencing.

[00:11:21] Speaker 04:
The court declined to adopt any monetary forfeiture at the sentencing hearing and issued the judgment.

[00:11:28] Speaker 04:
It made an order of forfeiture.

[00:11:30] Speaker 04:
No, it made a preliminary order and then it declined to adopt that at the sentencing hearing and at the sentencing hearing it declined

[00:11:40] Speaker 04:
to impose any monetary forfeiture, and nothing about forfeiture at all is in the judgment.

[00:11:46] Speaker 04:
And I see I'm way out of time.

[00:11:48] Speaker 03:
We've taken you over time.

[00:11:49] Speaker 03:
We'll give you a minute for rebuttal.

[00:11:51] Speaker 03:
Thank you.

[00:11:51] Speaker 03:
This case is confusing procedurally.

[00:12:01] Speaker 01:
Good morning.

[00:12:01] Speaker 01:
My name is Tanya Miller.

[00:12:03] Speaker 01:
I'm representing the government here today.

[00:12:04] Speaker 01:
May it please the court.

[00:12:06] Speaker 01:
There are no jurisdictions.

[00:12:08] Speaker 01:
There is no jurisdiction over the claims that the defendant raises in the instant appeal.

[00:12:13] Speaker 01:
And for that reason, this court does not have to review them at all.

[00:12:16] Speaker 02:
I don't understand that.

[00:12:17] Speaker 02:
Why is there no jurisdiction?

[00:12:19] Speaker 01:
And Your Honor, that is because at the time of sentencing, the district court clearly announced that it was ordering forfeiture.

[00:12:25] Speaker 01:
It did so orally.

[00:12:26] Speaker 01:
It indicated it found the specific items, the firearms and ammunition.

[00:12:32] Speaker 02:
The rule specifically says that that has to be included in the judgment.

[00:12:36] Speaker 02:
It does, Your Honor, but the rule... It was not included in the judgment.

[00:12:39] Speaker 02:
And therefore, these are bright line rules for when you appeal.

[00:12:45] Speaker 02:
And an oral ruling when there's a requirement to put it in the judgment in the piece of paper, that's your signal to appeal.

[00:12:52] Speaker 02:
That never happened.

[00:12:54] Speaker 02:
It doesn't show up in the judgment until by cross-reference in the final order, she directs the judgment to be amended.

[00:13:01] Speaker 02:
And that was timely appeal.

[00:13:02] Speaker 02:
So I don't see how there's a jurisdictional issue.

[00:13:05] Speaker 02:
Because the paper that would trigger the obligation to appeal, which is putting it in the judgment, never happened.

[00:13:12] Speaker 02:
So the time never ran.

[00:13:14] Speaker 01:
Well, Your Honor, to that I would only say that this Court has said, and I believe the case is United States versus Hicks, that when there's an unambiguous oral announcement and the judgment is sentencing, that that controls over the written judgment.

[00:13:25] Speaker 02:
That's true.

[00:13:26] Speaker 02:
But that just tells you what the content

[00:13:30] Speaker 02:
of the judgment is.

[00:13:33] Speaker 02:
But still, you appeal the written entry of judgment.

[00:13:36] Speaker 02:
Oral rulings are not entered on the docket.

[00:13:39] Speaker 02:
Orders have to be entered on the docket to trigger the obligation to appeal.

[00:13:43] Speaker 02:
There's nothing where this oral order is entered in any way on the docket.

[00:13:47] Speaker 02:
Is it in the minutes?

[00:13:49] Speaker 02:
Is it in the judgment?

[00:13:50] Speaker 02:
Is it anywhere in the paper docket?

[00:13:52] Speaker 01:
No, Your Honor.

[00:13:53] Speaker 02:
How could the time to appeal run if it's never entered on the docket?

[00:13:57] Speaker 01:
Well, again, Your Honor, the position of the government is that the oral judgment does have effect and it does control over a written judgment.

[00:14:04] Speaker 02:
Of course it would control in the sense that if there's a timely appeal over the final written judgment and someone wants to point out a discrepancy between the written judgment and the oral, the oral would then control, but what would we do?

[00:14:19] Speaker 02:
We'd amend, redirect the amendment of the written judgment because that's what ultimately counts and goes into the docket.

[00:14:25] Speaker 01:
Your Honor, and I would submit that the Court is in a position to do that here, pursuant to Rule 36, because what did happen is authorized under Rule 32.

[00:14:33] Speaker 01:
That brings me to my next point, Your Honor, that the defendant has not shown plain air occurred in this case.

[00:14:42] Speaker 01:
Plain air requires a showing of air that was plain, affecting the defendant's substantial rights, and which seriously affects the fairness, integrity, and public reputation of these proceedings.

[00:14:52] Speaker 03:
opposing counsel's position is that the district court did not have the authority to enter the the judgment by the time that the set the the order the written order the judgment was entered what's your response to that your honor our position is that the district court did have the authority because it did

[00:15:13] Speaker 01:
preserve the issue by issuing a general order at the time of sentencing.

[00:15:17] Speaker 01:
It found that forfeiture was appropriate.

[00:15:20] Speaker 01:
It specifically and orally identified the items, the firearms and ammunition in the pre-sentence report, that it was ordering the defendant to forfeit.

[00:15:28] Speaker 01:
It identified that the government had found or had made the requisite nexus between that property and the crime that was committed.

[00:15:35] Speaker 01:
It said all of this in the record.

[00:15:37] Speaker 01:
It also explicitly stated that it was overruling all the objections and arguments that were made against a substitute asset forfeiture.

[00:15:44] Speaker 01:
And it very clearly advised the defendant orally, as it was required to under 32.2 B4A, that the only thing left to be determined was the value of those items.

[00:15:56] Speaker 01:
And that was why it was setting the subsequent hearing, so that it could make that determination.

[00:16:02] Speaker 01:
And that procedure, Your Honor, followed

[00:16:04] Speaker 01:
adequate notice to the defendant in both the indictment and in the preliminary forfeiture order that forfeiture was being sought and that the value of those items was $21,027.50.

[00:16:16] Speaker 01:
It had been in the record.

[00:16:21] Speaker 01:
And, Your Honors, the reason that the defendant or the court was in that position was because there was an evidentiary hearing even before sentencing.

[00:16:28] Speaker 01:
And at that evidentiary hearing, the district court explicitly asked the defendant if it had any objections

[00:16:34] Speaker 01:
to the factual representations in that preliminary forfeiture order.

[00:16:37] Speaker 00:
Counsel, I haven't checked the record yet on this, but there is this part of the statement of reason standard form, a box that the district judge can check, saying that restitution has not been imposed because, for the very reason that you're talking about.

[00:16:51] Speaker 00:
Do you know if that was used in this case?

[00:16:53] Speaker 01:
I'm sorry, Your Honor, I do not know, but I do recall that there is a copy of the written judgment that's been included in the record in this case.

[00:16:59] Speaker 03:
Do you agree that the preliminary order forfeiture and the final order would contain the same amount?

[00:17:08] Speaker 01:
They do, Your Honor.

[00:17:09] Speaker 03:
Well, is that consistent with the notion that the district court was not able to calculate it originally?

[00:17:15] Speaker 01:
Your Honor, even though that is the case, I would have the court recognize that in anticipation of sentencing, the defendant, one week out from sentencing, filed a sentencing memorandum.

[00:17:27] Speaker 01:
And in that sentencing memorandum,

[00:17:29] Speaker 01:
It reversed course from what it had said at the evidentiary hearing where these issues were meant to be discussed and where the defendant indicated that he had no factual objections to the items and the representations in that preliminary forfeiture order.

[00:17:42] Speaker 01:
And he reversed course and he said that the value was not of those firearms and ammunition was not the $21,000.

[00:17:48] Speaker 01:
And it also indicated that it was disagreeing that there was the requisite nexus in this case.

[00:17:55] Speaker 01:
Then at sentencing,

[00:17:56] Speaker 01:
continued to insist to the district court that the value was not $21,000.

[00:18:03] Speaker 01:
The council for the government stood up and explained it was that value because the invoices, when added up, arrived at that value.

[00:18:10] Speaker 01:
But even after that colloquy occurred, the court, and this is at Excerpt of Record 83, the court still asserted.

[00:18:19] Speaker 01:
So there seems to be a dispute then as to whether or not that's the correct amount.

[00:18:23] Speaker 01:
except defense counsel you believe that amount was reduced from 35,000 and defense counsel said that was my understanding your honor, it was originally $35,000.

[00:18:32] Speaker 01:
So again, the district court was not in a position at sentencing because of the continued representations the defendant was making that the value that's listed in both the preliminary forfeiture order and in the proposed final forfeiture order that that was an accurate representation.

[00:18:49] Speaker 01:
It was only after judgment was rendered

[00:18:53] Speaker 01:
that the defendant did concede that that was an accurate amount.

[00:18:58] Speaker 01:
And I think that that's also an important document for the court to consider.

[00:19:03] Speaker 01:
Less than two weeks after sentencing, the defendant filed a pleading and in it, it acknowledged that at the time of sentencing, that the sentencing judge had ordered both a forfeiture and had granted the request for substitute assets in place of that forfeiture.

[00:19:20] Speaker 01:
The defendant himself acknowledged that.

[00:19:23] Speaker 01:
in the post-sentencing briefing that he filed and that's at Exit of Record 63.

[00:19:27] Speaker 01:
So we know that it happened and we know there was no mistake and the defendant knew that he was being ordered to forfeit those items and that the only thing left to do was to have a valuation hearing and resolve the dispute that it indicated on the record that it was facing at the time of sentencing.

[00:19:49] Speaker 02:
a general order that meets the requirements of B2C?

[00:19:53] Speaker 01:
Your Honor, it did not explicitly cite Rule 32 at the time of sentencing.

[00:19:58] Speaker 01:
It didn't say it aloud.

[00:19:59] Speaker 01:
But I would submit to this court that if the court does consider that to be error, that's not plain error.

[00:20:06] Speaker 01:
The defendant was very clearly on notice again that the forfeiture was being ordered and he was very clearly noticed that he was going to have to tender substitute assets reflecting the value of those firearms.

[00:20:17] Speaker 01:
and the ammunition that he smuggled to Mexico and specifically those which were listed in the pre-sentence report.

[00:20:26] Speaker 01:
The defense and their argument, they've also taken issue with just the statutory authorization for those types of orders.

[00:20:34] Speaker 01:
I would ask the court to consider that this is settled under circuit law.

[00:20:39] Speaker 01:
The fact that the district court was in a position in a straw purchaser case such as this,

[00:20:45] Speaker 01:
to make the type of substitute asset forfeiture order that it did.

[00:20:49] Speaker 01:
So we're merely asking the court to honor that precedent.

[00:20:52] Speaker 01:
And I would also ask the court to honor the fact that the district court did not err in finding that the $21,000 amount was not constitutionally excessive.

[00:21:02] Speaker 01:
It's not grossly disproportionate to the offense that occurred in this case.

[00:21:05] Speaker 01:
The defendant spent years sending firearms and ammunition to the Sinaloa Cartel.

[00:21:11] Speaker 03:
Did the district court adequately consider the financial circumstances of the defendant?

[00:21:16] Speaker 01:
Yes, your honor.

[00:21:17] Speaker 01:
At the time of sentencing, when it told him that he was going to be forfeiting those items and that he was going to have to pay a substitute asset forfeiture in place of those items, at exit of record 74, it acknowledged that it had reviewed the pre-sentence report which contained paragraphs describing how the defendant is college educated as well as all of his financial circumstances, conditions and all the

[00:21:41] Speaker 01:
opportunities he was pursuing for employment even as this case went on.

[00:21:44] Speaker 01:
It also acknowledged that he was at Excerpt of Record 85, that he was the supporter for his family, and then it further acknowledged all the other administrative forfeitures which had occurred in that case, and that's at Excerpt of Record 79 through 82.

[00:22:00] Speaker 01:
I see that my time is up.

[00:22:02] Speaker 01:
I'd ask you to affirm, and I thank you for your time.

[00:22:07] Speaker 03:
Thank you, Counsel.

[00:22:07] Speaker 03:
Let's have one minute for rebuttal.

[00:22:14] Speaker 03:
Counsel, if there is no Ninth Circuit precedent on this, how can there be plain error?

[00:22:20] Speaker 04:
Your Honor, as I tried to explain, the failure to enter a judgment, there's no need for an objection to that.

[00:22:29] Speaker 04:
This is the final judgment rule, just as if the court had not imposed a mandatory minimum prison sentence.

[00:22:37] Speaker 04:
That's explained.

[00:22:38] Speaker 04:
It's based on Green Law and Adonisio.

[00:22:41] Speaker 04:
And it's explained in the Sixth Circuit Maddox case.

[00:22:45] Speaker 03:
And when you say the final judgment rule, what are you talking about?

[00:22:48] Speaker 04:
I'm talking about the fact that once a judgment is entered, it cannot be altered except via Rule 35 or an appeal.

[00:22:57] Speaker 04:
So if the court declines to issue or impose a mandatory minimum prison sentence and the government does an appeal or file a Rule 35 motion, then the defendant gets the benefit of the lenient sentence.

[00:23:09] Speaker 04:
And that's explained in Greenlaw, Adonisio, and the Maddox case.

[00:23:14] Speaker 03:
The guy was- Are you asking us to apply that to forfeiture?

[00:23:19] Speaker 04:
Yes, because there's no real reason, there's no reason at all to differentiate a mandatory forfeiture penalty from a mandatory minimum sentence.

[00:23:26] Speaker 03:
But the problem is we haven't done that before, so how can it be plain error if we haven't applied that law

[00:23:32] Speaker 03:
in the way before, in that way before.

[00:23:34] Speaker 03:
How can it be plain error?

[00:23:36] Speaker 04:
Your Honor, there's simply no obligation to object.

[00:23:39] Speaker 04:
It's the government's burden to object in that circumstance.

[00:23:42] Speaker 03:
Exactly.

[00:23:42] Speaker 03:
I understand that.

[00:23:43] Speaker 03:
But if the district court made an error, under plain error review, the error must be so plain that the district court is able to, should have been able to detect it without an objection.

[00:23:58] Speaker 03:
That's hard to say if there's no case authority that puts the district court on notice that this is error.

[00:24:05] Speaker 04:
Greenlaw and Adonisio, which are Supreme Court cases, and I've answered that question to the best of my ability.

[00:24:12] Speaker 04:
Also Kay and Pena, those are Ninth Circuit cases that discuss that rule as well.

[00:24:18] Speaker 04:
And if I may address a couple more points quickly, the forfeiture order was

[00:24:25] Speaker 04:
reduced from $35,000 to $21,000.

[00:24:27] Speaker 04:
The defense counsel was correct.

[00:24:31] Speaker 04:
She just couldn't remember exactly why.

[00:24:33] Speaker 04:
The district court, as I said before, already had briefing on that from the government, but did not review that carefully before the sentencing, and the covering prosecutor could not answer her question.

[00:24:44] Speaker 04:
And on ER 63, the defense counsel did not

[00:24:53] Speaker 04:
say or agree that the order had already been ended.

[00:24:57] Speaker 04:
She said she's objecting to the granting of substitute asset forfeiture because it still has not been granted yet.

[00:25:04] Speaker 04:
And finally, in the Eighth Amendment context, the district court explicitly did not consider my client's financial hardship in imposing it.

[00:25:13] Speaker 04:
And the citations for that can be found in the reply brief at pages 24 and 25.

[00:25:20] Speaker 03:
Thank you, counsel.

[00:25:20] Speaker 04:
Thank you.

[00:25:21] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:25:24] Speaker 03:
The case just argued is submitted for decision by the court.