[00:00:00] Speaker 01:
Mr. Prince.

[00:00:02] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
My name is Colin Prince, and I'm representing Paul Murray.

[00:00:07] Speaker 00:
I'm going to try and reserve three minutes, and I will watch my own clock.

[00:00:13] Speaker 00:
The party spilled the most ink on explicit breach.

[00:00:16] Speaker 00:
And I can, of course, start wherever the court would like me to, but I thought that made sense, if that's OK.

[00:00:24] Speaker 00:
I thought what I might do is address the breach and then I think what are really the government's two arguments regarding timing and cure.

[00:00:33] Speaker 00:
So I think the simple breach here is the plea agreement required the government to recommend no more than the low end of the advisory guideline range, which was 108 months.

[00:00:44] Speaker 00:
The prosecutor didn't do that.

[00:00:46] Speaker 00:
They recommended it.

[00:00:47] Speaker 04:
As calculated by the district judge.

[00:00:49] Speaker 00:
Exactly right, your honor.

[00:00:51] Speaker 00:
I think the law on this is pretty clear.

[00:00:55] Speaker 00:
Strict compliance is required by every circuit that I've seen, including this one.

[00:01:00] Speaker 00:
I point out a couple of facts.

[00:01:03] Speaker 00:
The sentencing memo filed weeks before sentencing recommended 135 months, the breaching recommendation, eight times.

[00:01:11] Speaker 00:
It's laid out in the reply brief.

[00:01:13] Speaker 01:
Which was the bottom of the guideline range that the probation had calculated and that the memo recommended, right?

[00:01:19] Speaker 00:
That the government had calculated.

[00:01:20] Speaker 00:
Yes, exactly right.

[00:01:22] Speaker 00:
And then at oral argument, the prosecutor came in.

[00:01:25] Speaker 00:
And I think really put to rest any dispute here.

[00:01:28] Speaker 00:
This is the quote.

[00:01:29] Speaker 00:
The government recommendation is a guideline sentence as we see them being calculated.

[00:01:34] Speaker 00:
And that's 135 months.

[00:01:37] Speaker 01:
And all of that was before the district court had calculated the guideline, right?

[00:01:40] Speaker 01:
That is correct.

[00:01:41] Speaker 01:
So if they had said, they were free to recommend

[00:01:47] Speaker 01:
A guideline calculation, right?

[00:01:49] Speaker 01:
Absolutely.

[00:01:49] Speaker 01:
Okay.

[00:01:50] Speaker 01:
So they could say, we think the guideline range is 135 to 168, I think was.

[00:01:56] Speaker 00:
Yes.

[00:01:58] Speaker 01:
And we recommend that if you agree with us on that, you should sentence at the bottom of that range at 135.

[00:02:07] Speaker 01:
Would that be permissible?

[00:02:09] Speaker 00:
I don't think so, Your Honor.

[00:02:10] Speaker 01:
But why not?

[00:02:11] Speaker 00:
So I think we're getting into two things here.

[00:02:13] Speaker 00:
One, I absolutely agree with you.

[00:02:15] Speaker 00:
The government gets to advocate for its enhancements.

[00:02:18] Speaker 00:
That's clear.

[00:02:20] Speaker 00:
The plea agreement says you must give a recommendation on the guidelines determined by the court and at sentencing.

[00:02:30] Speaker 00:
And so when they come back in their answering brief and they say,

[00:02:34] Speaker 00:
Well, we get to give a preliminary recommendation based on our calculation before sentencing.

[00:02:40] Speaker 00:
It's directly opposite to what the plea agreement requires.

[00:02:45] Speaker 00:
So you think they're not allowed to say anything before sentencing?

[00:02:49] Speaker 00:
They are allowed to dispute the enhancements, and then the recommendation must come when the district court calculates the guidelines at sentencing.

[00:02:58] Speaker 04:
Suppose the judge asked

[00:03:01] Speaker 04:
What are they permitted to do?

[00:03:03] Speaker 04:
After the arguments about, you know, acceptance and number of images and all that stuff is discussed, the judge says, well, what, okay, so we're doing two points rather than three for acceptance.

[00:03:18] Speaker 04:
We're not imposing disenhancement.

[00:03:24] Speaker 04:
And Mr. AUSNA, what is your guideline calculation?

[00:03:30] Speaker 00:
Oh, they can absolutely advocate for their guideline calculation.

[00:03:34] Speaker 04:
Could the judge ask them, as soon as these details had gotten sorted out, well, Mr. Government Lawyer, what's your guideline calculation?

[00:03:48] Speaker 00:
Yes.

[00:03:49] Speaker 00:
I mean, I think that's what happened.

[00:03:51] Speaker 00:
I think the government came in and said, we think our guidelines are 135 to 168.

[00:03:56] Speaker 00:
I would point the court to

[00:04:06] Speaker 00:
Kirkland out of the Fifth Circuit 2017, that's exactly what happened.

[00:04:10] Speaker 00:
The parties disputed the enhancements.

[00:04:12] Speaker 00:
There was no problem there.

[00:04:14] Speaker 00:
Nobody suggested that was an issue.

[00:04:17] Speaker 00:
The defendant sought a below guideline range, recommendation of 151.

[00:04:21] Speaker 00:
The court then found 262 to 327.

[00:04:26] Speaker 00:
And the government breached by recommending 327, the high end.

[00:04:32] Speaker 00:
uh... and then the district were actually three hundred

[00:04:38] Speaker 00:
above what the government should have recommended and below what the breach was.

[00:04:44] Speaker 01:
So suppose the district court had asked at sentencing, the judge hasn't yet calculated the guideline range, but he's hearing from the parties and he asks, so what's your recommendation to the government?

[00:04:57] Speaker 01:
In your view, is the government allowed to say anything in response to that or do they just have to say, well, you haven't calculated the guidelines so I can't tell you?

[00:05:04] Speaker 00:
No, I think they can absolutely say, we are going to recommend the low end of the guidelines as the court determines them to be here today.

[00:05:12] Speaker 00:
So why an answer?

[00:05:15] Speaker 04:
If the question is, Mr. Government Lawyer, what are the government's guideline calculations?

[00:05:22] Speaker 04:
Is the AUSA permitted to say, well, our numbers come out to 150 to 170?

[00:05:33] Speaker 00:
Yes, Your Honor.

[00:05:35] Speaker 00:
Yeah, and I think why you're making that face at me, Judge Miller, is you're drawing that inference.

[00:05:40] Speaker 00:
If the government is saying, well, our guidelines are 135 to 167,

[00:05:46] Speaker 00:
And the government is saying, I'm giving a low-end recommendation.

[00:05:49] Speaker 00:
Well then, aren't they just really saying our recommendation is 135?

[00:05:53] Speaker 00:
Is that what you're getting at?

[00:05:55] Speaker 00:
The inference is kind of there.

[00:05:56] Speaker 00:
I wasn't trying to be that expressive.

[00:05:58] Speaker 00:
But I like to make sure I understand the question.

[00:06:02] Speaker 03:
Was the court aware of the agreement that the government had agreed to seek no more than the low end of the guidelines?

[00:06:12] Speaker 00:
You know, I don't think the record necessarily solves that question.

[00:06:15] Speaker 03:
I think it does, actually.

[00:06:18] Speaker 00:
Then I stand corrected.

[00:06:19] Speaker 03:
That is to say, we now get Ms.

[00:06:22] Speaker 03:
George, only with that, the terms of the plea agreement require the government to now seek no more than 108 months.

[00:06:27] Speaker 03:
Court says, I understand.

[00:06:29] Speaker 00:
And my apologies.

[00:06:30] Speaker 00:
I thought you were referring to before this all happened, before the recommendation happened.

[00:06:34] Speaker 00:
Yes, you're absolutely right.

[00:06:36] Speaker 00:
Ms.

[00:06:36] Speaker 00:
George.

[00:06:36] Speaker 03:
So at the time the court sentences, it's well aware of the government's agreement.

[00:06:41] Speaker 00:
It's aware of the government's agreement.

[00:06:43] Speaker 03:
And once the court has decided on the two enhancements that seem to be at issue, that would have produced, if it had gone to the government's favor, 135, by the time the government, by the time the court sentences, it's well aware that the agreement by the government is to seek no more than 108.

[00:06:59] Speaker 00:
Yes.

[00:07:00] Speaker 00:
It's aware of the agreement, but I come back to Heredia, Your Honors, where this court said, we have a breach.

[00:07:10] Speaker 00:
The government breaches its agreement with the defendant if it promises to recommend a particular disposition of the case and then either fails to recommend that disposition or recommends a different one.

[00:07:20] Speaker 00:
And we actually have both here.

[00:07:23] Speaker 00:
the plea agreement entitled Mr. Murray to a recommendation of no more than 108 months.

[00:07:28] Speaker 00:
He both did not get that recommendation.

[00:07:31] Speaker 00:
And he got a higher one.

[00:07:32] Speaker 00:
The other case I would flag for you.

[00:07:34] Speaker 01:
And why?

[00:07:34] Speaker 01:
I mean, I grant you that AUSA didn't say it.

[00:07:39] Speaker 01:
But having had defense counsel say, the government is committed to recommend this, having the court say, I understand, is the AUSA at that point supposed to jump up and say, wait, wait, wait, wait, wait, sorry to interrupt, Your Honor.

[00:07:52] Speaker 01:
But I just want to say, we agree.

[00:07:54] Speaker 01:
I mean, does he need to do that?

[00:07:56] Speaker 00:
So the answer is yes.

[00:08:00] Speaker 00:
But it doesn't matter because of this court's cure, which you're essentially asking, should the government jump up?

[00:08:07] Speaker 00:
Do they need to jump up and try and cure?

[00:08:09] Speaker 00:
So you think there's already a breach at that point?

[00:08:11] Speaker 00:
Absolutely.

[00:08:13] Speaker 03:
How are we supposed to compare the facts of this case with Farias Contreras?

[00:08:19] Speaker 03:
That's been argued on the question of implicit breach.

[00:08:23] Speaker 00:
And that's implicit breach, Your Honor.

[00:08:26] Speaker 03:
Right.

[00:08:27] Speaker 03:
And I think if I were to hold in your favor, I probably would not go further than implicit breach.

[00:08:34] Speaker 00:
Well, you know, can I address one other case, Your Honor, that I think might bring us back to explicit?

[00:08:39] Speaker 00:
I'd like to point out Navarro, the Seventh Circuit, in 2016.

[00:08:43] Speaker 00:
They reversed on plein air where the government recommended their own calculation rather than the courts.

[00:08:47] Speaker 00:
It's exactly what happened here.

[00:08:49] Speaker 00:
We have Kirkland, we have Navarro, multiple circuit courts have reversed in exactly this scenario.

[00:08:56] Speaker 00:
And so the problem here is, I think to answer your question Judge Miller about jumping up, what all of the precedent says

[00:09:03] Speaker 00:
is what the defendant has bargained for is the added persuasiveness of the government prosecutor standing up in court and saying, 108 is sufficient but not more than necessary.

[00:09:17] Speaker 00:
Because we are under the parsimony clause here, right?

[00:09:19] Speaker 00:
So any time you argue for a sentence, you're saying 108 months

[00:09:24] Speaker 00:
is sufficient, but anything more than that is unnecessary.

[00:09:28] Speaker 00:
So by coming into court and saying, Judge, over and over and over again, 135 is the right sentence, you can't jump up and say, well, Judge, I know I said 135 was the right sentence, but now I'm going to say 108.

[00:09:43] Speaker 00:
is no more than necessary.

[00:09:45] Speaker 00:
Anything above that is unnecessary.

[00:09:47] Speaker 00:
I'd point the courts to Alcala Sanchez, this court's precedent on cure.

[00:09:51] Speaker 00:
It more or less flatly says this is uncurable.

[00:09:56] Speaker 00:
I filed a 28J a couple days ago with Cruz out of the Third Circuit that uses this example of breach, a

[00:10:04] Speaker 00:
a strong recommendation for the wrong sentence as incurable breach.

[00:10:09] Speaker 00:
There's lots of ways to breach a plea agreement.

[00:10:12] Speaker 00:
Restitution, supervised release conditions.

[00:10:14] Speaker 00:
There's many ways you can do it.

[00:10:16] Speaker 00:
But an incorrect prosecutorial recommendation is incurable breach.

[00:10:21] Speaker 04:
Please go ahead.

[00:10:24] Speaker 04:
Before you sit down, I just want to be sure I'm clear on this.

[00:10:28] Speaker 04:
Before the judge announced his calculation,

[00:10:34] Speaker 04:
What was the government free to say?

[00:10:38] Speaker 00:
So I think they can say, we are going to recommend a low-end guideline sentence as calculated by the court, because that's what's in the plea agreement.

[00:10:48] Speaker 00:
Now, I think the error also, if you look at the beginning.

[00:10:51] Speaker 04:
So what else?

[00:10:52] Speaker 04:
All right, so he says that.

[00:10:53] Speaker 04:
Then what else?

[00:10:55] Speaker 00:
What can he say?

[00:10:56] Speaker 00:
So I think what should have happened here, Judge Rice asked the prosecutor, said, I'll hear from the recommendation from the government first.

[00:11:04] Speaker 00:
and said, however you want to proceed.

[00:11:07] Speaker 00:
And the prosecutor decided not to argue the enhancements.

[00:11:15] Speaker 00:
The prosecutor launched straight into the 135 recommendation.

[00:11:19] Speaker 00:
The prosecutor, no one compelled the prosecutor to do this.

[00:11:22] Speaker 00:
No one compelled the prosecutor to recommend 135 and say that is sufficient, but not more than necessary.

[00:11:28] Speaker 00:
in a sentencing memo eight times, or this.

[00:11:31] Speaker 00:
The prosecutor brought this on themselves.

[00:11:32] Speaker 00:
And I don't think it was intentional.

[00:11:34] Speaker 00:
I don't think it was bad faith.

[00:11:35] Speaker 00:
But they brought this on themselves.

[00:11:38] Speaker 00:
I understand there seems to be that inference in there.

[00:11:41] Speaker 00:
I would say, were this court to rule in the government's favor that this is acceptable, that there is a shifting

[00:11:49] Speaker 03:
recommendation that they can make beforehand, even when the prosecutor, the plea agreement plainly bars it, I think we would effectively open a circuit split with... What if the government had said, and I recognize this is not exactly what the government did say, what if the government had said, we are arguing low end of the guidelines and

[00:12:08] Speaker 03:
Low end of the guidelines, as we calculate it, is 135.

[00:12:11] Speaker 03:
That means that we think that he should not get credit on the two things that are at issue, that is to say enhancement for instructional justice and credit for accepting responsibility.

[00:12:22] Speaker 03:
The government says, I think both of those should go against us, against him, and here's our argument

[00:12:29] Speaker 03:
as to why those two things should go against him.

[00:12:31] Speaker 03:
Because if you look at the substance of what the government is arguing, it's really an argument against those two provisions.

[00:12:39] Speaker 00:
Yes, Your Honor, yes.

[00:12:41] Speaker 00:
And I think that sort of comes close.

[00:12:43] Speaker 00:
I think maybe if the government acknowledges that this is sort of a tentative recommendation, we're going to end up recommending, you know, we think for various reasons the low end of what the court decides as the guideline is the right call.

[00:12:55] Speaker 00:
Then I think you're sort of right there, Your Honor.

[00:12:57] Speaker 00:
But if the government promises to recommend the low end of the guidelines as calculated by the court and at sentencing, they cannot repeatedly come in and say 135, 135, 135 over and over and over again as calculated by us before sentencing.

[00:13:15] Speaker 00:
It renders the plea agreement null and void.

[00:13:18] Speaker 03:
Well, I don't think they said 135 over and over again.

[00:13:20] Speaker 03:
They said 135.

[00:13:22] Speaker 00:
Eight times in the sentencing memo, and then again at oral argument.

[00:13:25] Speaker 03:
I'm looking at the oral argument.

[00:13:26] Speaker 03:
I don't think they said it eight times at oral argument.

[00:13:28] Speaker 00:
They said it in the opening of oral argument, and they said, as we see them calculate it.

[00:13:32] Speaker 00:
And so again, the last, I know I'm over time, even apart from breach, they failed to give the correct recommendation.

[00:13:41] Speaker 00:
If they had remained silent and literally said nothing, never said the words 108 at all, never said 135.

[00:13:47] Speaker 00:
That is breach that is reversible on plain air.

[00:13:52] Speaker 04:
So what would you have our decradal paragraph say?

[00:13:56] Speaker 04:
I'm sorry, you're... The decradal paragraph, what would you have it say?

[00:13:59] Speaker 00:
I don't know the word decradal, Your Honor.

[00:14:01] Speaker 04:
The last... What would you have our holdings say?

[00:14:04] Speaker 00:
That this is consistent with every other court that has dealt with this.

[00:14:08] Speaker 00:
If the government comes in... And what remedy are you looking for?

[00:14:12] Speaker 00:
Reassignment and re-sentencing.

[00:14:16] Speaker 00:
Simply that.

[00:14:17] Speaker 00:
Thank you.

[00:14:18] Speaker 00:
I appreciate your time.

[00:14:19] Speaker 00:
Thank you very much.

[00:14:20] Speaker 01:
We will give you two minutes for rebuttal and we'll hear from the government.

[00:14:26] Speaker 02:
May it please the court, Ian Gerricks of the United States.

[00:14:28] Speaker 02:
The government has four points.

[00:14:30] Speaker 02:
This court should affirm the district court's sentence because the sentence here, there was no explicit or implicit breach of the plea agreement and the sentence.

[00:14:39] Speaker 02:
There was no procedural error or substantive unreasonableness.

[00:14:43] Speaker 02:
In terms of explicit breach where defense counsel started, the government does assert that it is essential to look at the timing of the alleged breach.

[00:14:54] Speaker 02:
And we also have to remind ourselves, I don't believe I heard it said previously this morning, that this is on plain error review.

[00:15:02] Speaker 02:
We have two federal defenders' offices that in this sentencing hearing did not object to the government's recommendation, yet actually told the court the government is recommending.

[00:15:15] Speaker 02:
We're on plain error review, and for that, the court must find that there is an error.

[00:15:20] Speaker 02:
It's plain.

[00:15:22] Speaker 02:
It's clear there's no dispute that there is an error.

[00:15:27] Speaker 02:
But for that error, the defendant must show a probability that the proceeding, the outcome would change.

[00:15:34] Speaker 02:
So here, we're not talking just about de novo review in terms of one of the cases cited by the defense.

[00:15:40] Speaker 02:
I think that was Cruz.

[00:15:41] Speaker 02:
That was de novo review.

[00:15:43] Speaker 02:
Did what happened at sentencing at the time of the purported breach constitute plain error?

[00:15:51] Speaker 01:
committed you to recommend the low end of the guidelines as calculated by the court, which turned out to be 108 months.

[00:15:58] Speaker 01:
But you never actually said, we recommend 108 months.

[00:16:03] Speaker 01:
So why isn't, setting aside whether that's plain, why isn't that a breach of the agreement?

[00:16:10] Speaker 01:
You did not, in fact, recommend what was the low end of the guideline range that the district court calculated.

[00:16:16] Speaker 02:
And what's important is the timing of how these statements occurred.

[00:16:20] Speaker 02:
the government had agreed to recommend the low end of the range in the sentencing memorandum as Judge Fletcher noted the eight times it said or seven is in the sentencing memorandum.

[00:16:32] Speaker 02:
And the defense in its reply brief says the government, no one compelled the government to make that recommendation prior.

[00:16:40] Speaker 02:
The district court's order required a sentencing memorandum or any arguments prior to sentencing, and that was prior to the range being calculated by the district court.

[00:16:51] Speaker 02:
So in terms of timing, the court had not yet calculated the guideline range.

[00:16:56] Speaker 02:
It was advisory, and it was based on the PSR.

[00:16:58] Speaker 02:
And in fact, the PSR had been litigated.

[00:17:02] Speaker 02:
This was the third version.

[00:17:04] Speaker 02:
There was a higher range in the first one.

[00:17:06] Speaker 02:
And this is the third version where the government, where defense says that the government's asking for the guideline range as we see them calculated.

[00:17:16] Speaker 02:
The defense is trying to say that's what the government wanted, the range.

[00:17:21] Speaker 02:
No, the government saw an actual higher guideline range because the government saw that appropriate calculations would have not granted acceptance for responsibility, and that range would have been 168 months.

[00:17:33] Speaker 02:
Yet the government's recommendation in its sentencing memorandum

[00:17:36] Speaker 02:
was for what the parties had already been litigating in the PSR and what came before the court, which it was the 135 months.

[00:17:46] Speaker 02:
So that was the sentencing memorandum.

[00:17:50] Speaker 02:
The parties come into court, and the government contends the court has the discretion to run sentencing how it wants to run sentencing.

[00:17:58] Speaker 02:
The court allowed for argument by the government, allowed argument by the defense.

[00:18:03] Speaker 04:
Does that, do you think, relieve you of your obligations under the plea agreement?

[00:18:09] Speaker 02:
No, Your Honor, and the government would submit that when the government complied with its obligation on the plea agreement, because when the government made its recommendation, the government said 135 months based on the guidelines as we see them being calculated in the PSR, which is the low end

[00:18:29] Speaker 02:
the government referenced the low end of the guideline range.

[00:18:34] Speaker 01:
Right, but the agreement was the low end of the guideline range as calculated by the court, right?

[00:18:43] Speaker 01:
And once the court calculated the guideline range, you did not thereafter make any recommendation.

[00:18:51] Speaker 01:
Are you saying that's because the court had structured the hearing in such a way that you didn't have an opportunity to?

[00:18:57] Speaker 02:
The government believes there wasn't an opportunity to do that before the court made its findings, but the key point why this is not plain error is because the court found that, well, I'm going to deny the obstruction enhancement, therefore lowering the range by two levels to 108 to 135 months.

[00:19:22] Speaker 02:
The very next sentence,

[00:19:25] Speaker 02:
The Chief Federal Defenders for Eastern Washington and Idaho says the government is required to argue for 108 months.

[00:19:34] Speaker 02:
What does the court say?

[00:19:35] Speaker 02:
I understand.

[00:19:36] Speaker 03:
That's the passage I just read.

[00:19:38] Speaker 03:
Correct.

[00:19:38] Speaker 03:
But the government is silent.

[00:19:40] Speaker 02:
The government had completed its argument.

[00:19:45] Speaker 02:
The court found the guideline range.

[00:19:48] Speaker 02:
The defense was making its argument.

[00:19:51] Speaker 02:
And the court said, I understand, which means there's no— But you didn't respond to what I just said.

[00:19:59] Speaker 03:
But the government thereafter is silent.

[00:20:01] Speaker 03:
That's correct.

[00:20:02] Speaker 01:
Did the government say anything on any subject from that point in the hearing until the conclusion when the district court imposed sentence?

[00:20:12] Speaker 02:
I would have to review the sentencing more closely, the transcript more closely, but I don't believe there was substance to it.

[00:20:21] Speaker 03:
But the point- The government says nothing.

[00:20:23] Speaker 02:
Correct.

[00:20:24] Speaker 02:
Because the way the court broke out the sentencing was for, excuse me, the government.

[00:20:29] Speaker 02:
Because your turn was over at that point.

[00:20:31] Speaker 02:
Correct.

[00:20:32] Speaker 02:
That is exactly correct.

[00:20:34] Speaker 03:
And that is at the discretion of the- Listen, how is this case different from Farias Contreras?

[00:20:40] Speaker 02:
Well, as

[00:20:42] Speaker 02:
Mr. Prince pointed out that dealt with mostly implicit breach on that.

[00:20:47] Speaker 02:
Well, and you lose if there's implicit breach.

[00:20:49] Speaker 02:
And the government would assert there is no implicit breach.

[00:20:52] Speaker 03:
So I'm asking you, how is this case different?

[00:20:54] Speaker 02:
In this case, the court showed that it wasn't following the government recommendation or the defense recommendation.

[00:21:03] Speaker 03:
It knew the case and decided to... But the fact that the government makes an argument that's impermissible

[00:21:11] Speaker 03:
That's not cured.

[00:21:12] Speaker 03:
If the court understands the law and the argument, that doesn't cure you the breach.

[00:21:18] Speaker 03:
You breached.

[00:21:18] Speaker 03:
So I'm not sure I'm yet got to the point of how this case is different.

[00:21:22] Speaker 02:
This case is different because, and as the government asserted here in this case as well under Mochela,

[00:21:30] Speaker 02:
this court has said that the government, when there is a broad spread between the arguments, typically you have these explicit breach situations where the parties are agreeing on a specific range or not.

[00:21:43] Speaker 02:
Here you have a broad spread between about nine years, and when the government has an obligation, one, in Michelle, to alert the court to any facts that are relevant to calculating the guideline range.

[00:21:57] Speaker 03:
Do you want to talk about Farias Contreras?

[00:22:00] Speaker 03:
I keep asking you to distinguish this case from Farias Contreras.

[00:22:05] Speaker 02:
This case is different from Farias in that the government here recommended the low end of the range and in Farias in this case the government's marshaling facts to support the low end of the guideline range which in this case

[00:22:29] Speaker 02:
that in Farias, I believe the defense wasn't requesting time served.

[00:22:33] Speaker 03:
I could be wrong, but here you have... Maybe you're not remembering the case very well.

[00:22:37] Speaker 03:
Is that part of the problem?

[00:22:38] Speaker 02:
Well, in Farias, in this case, you have this large spread of time.

[00:22:46] Speaker 02:
And in this case, and the government is allowed

[00:22:50] Speaker 02:
to under Macello, which is the current case that's on point to martial facts.

[00:22:54] Speaker 03:
You know, I think Ferris is directly on point.

[00:22:58] Speaker 03:
We get a finding by the Court of, a holding by the Court of Appeals that there's an implicit breach because there was an argument for, a very strong argument by the government for a long sentence, and Judge Wardlaw's opinion says that's an implicit breach, and it was unclear error.

[00:23:14] Speaker 02:
in that case and that opinion was vacated to my knowledge and well it's on bonk at the moment it's on bonk at the moment and the government and the defense have made arguments in support of or not in

[00:23:25] Speaker 04:
or against that very opinion and the government's position in that case is that let me ask you this it seems to me and tell me what i'm missing tell me what i'm getting wrong the government and uh... in this case uh... committed itself to a bargain in the plea agreement that it really was not in a position to fulfill because on the one hand

[00:23:48] Speaker 04:
you go into court and you argue as you are obligated to enthusiastically and vigorously for the government's own calculation, 135 months.

[00:24:06] Speaker 04:
But then again, once the government, once a judge calculates the sentencing range,

[00:24:16] Speaker 04:
How can you credibly shift gears and say, well, forget about all those arguments we just made for 135, 140 months.

[00:24:26] Speaker 04:
We now believe under the 3553 factors and all the considerations here that, well, that's not right, but we should be back to 108.

[00:24:38] Speaker 04:
I don't know how you can credibly do that.

[00:24:41] Speaker 04:
I mean, if I were a district judge, I would be scratching my head once I heard that.

[00:24:46] Speaker 02:
In this particular case, it's a distinction without difference because the government's position is that the court was going to sentence the defendant to the 126 months, regardless whether or not the defendant... So you're saying then that the advocacy was rapid?

[00:25:04] Speaker 04:
The advocacy was vapid.

[00:25:06] Speaker 04:
What you're telling us was that you didn't believe the court was going to buy what you were saying because you thought the judge had committed himself to the 126 months.

[00:25:22] Speaker 02:
the government believes that it was clear based on the record that everybody knew the government was asking for the low end of the range and that based on when that's not true because after it was announced you pretty much set on your hands the the court said it understood that the government's recommendation that's different from advocating for 108 isn't it and the

[00:25:48] Speaker 02:
government had also said that it recommended the low end of the range in the very beginning of its sentencing recommendation at court argument.

[00:25:58] Speaker 04:
That obligation was clear from reading the document.

[00:26:02] Speaker 04:
What you didn't do once you knew the 108 was the bottom of the guideline range, you didn't pitch for that.

[00:26:14] Speaker 02:
You didn't recommend that.

[00:26:16] Speaker 02:
The government doesn't believe that would have changed the outcome.

[00:26:22] Speaker 04:
You're telling me then that's the reason you didn't do it.

[00:26:26] Speaker 04:
The reason you didn't do it was because you didn't believe it would change the judge's mind.

[00:26:32] Speaker 02:
I wasn't the prosecutor.

[00:26:33] Speaker 02:
I can't say what was going on in their minds, but the court had said it understood what the government's recommendation

[00:26:40] Speaker 02:
was that it was 108 months, and it heard that three times.

[00:26:43] Speaker 02:
This wasn't a case where, lo and behold, the government said 135 months, and then it sailed through without the federal defenders commenting.

[00:26:54] Speaker 04:
But understanding and recommending are different.

[00:26:58] Speaker 02:
And the government had recommended the low end of the guideline range in its initial sense.

[00:27:03] Speaker 03:
You know, let me read you exactly what the government said, and I understand that

[00:27:08] Speaker 03:
parsing something that said orally may be a little bit unfair.

[00:27:12] Speaker 03:
But here's what the government said.

[00:27:14] Speaker 03:
The government's recommendation today is a guideline sentence as we see them being calculated, and that's 135 months.

[00:27:22] Speaker 03:
The government does not say we recommend the low end of the guidelines as calculated by the court.

[00:27:28] Speaker 03:
It says we recommend a guideline sentence as we see them being calculated, and that's 135 months.

[00:27:36] Speaker 03:
If I parse that just strictly, the government has just recommended 135 months.

[00:27:42] Speaker 03:
It has not recommended a low end of the guidelines as the court might calculate.

[00:27:48] Speaker 03:
How do you respond to that?

[00:27:50] Speaker 02:
The government responds, and I believe there was a tale to that where the government said, which is

[00:27:55] Speaker 02:
the low end of the range.

[00:27:57] Speaker 03:
Well, that's right, but that's as we recommended as we calculated, and that's 135, and that's the low end of the, based on the facts of the case that we've submitted and have been briefed up.

[00:28:09] Speaker 03:
This is the government saying, we calculated 135, as we understand it, that's the low end of the guideline range, and that's what we recommend.

[00:28:17] Speaker 02:
And again, that was based on the PSR's calculation at the time that had been calculated prior to sentencing and not what, again, what the government believed actually the guideline range could have been higher without acceptance.

[00:28:32] Speaker 04:
So then- How could you make that statement and at the same time, in good faith, make an argument for 108 months?

[00:28:48] Speaker 04:
make the proceeding statement?

[00:28:49] Speaker 04:
The statement that Judge Fletcher just read to you.

[00:28:53] Speaker 04:
How could you make that statement and then also make a good faith argument for 108 months?

[00:29:06] Speaker 02:
The government was arguing in favor of a low-end guideline range.

[00:29:11] Speaker 02:
And under Michelle, when faced with that disparity in what the parties are recommending, the cases cited by the defendant are typically Iredia, Alcala-Sanchez.

[00:29:23] Speaker 02:
We're talking about sentences within agreements within a range.

[00:29:28] Speaker 04:
OK, so I get the answer to my question.

[00:29:30] Speaker 02:
The answer to my question is you can't.

[00:29:35] Speaker 02:
The government believes that its recommendation of 135 months was in good faith based on the low end calculation.

[00:29:45] Speaker 04:
No question about that, but that's not the point.

[00:29:48] Speaker 04:
The point is, once you get having committed, having gone down that road,

[00:29:54] Speaker 04:
You couldn't have come back as a responsible advocate and say, well, forget what we just said a minute ago, Judge, about 135, just erase all that from your mind.

[00:30:08] Speaker 04:
What we now want you to do is 108.

[00:30:14] Speaker 02:
I know you weren't trial counsel.

[00:30:19] Speaker 02:
Understood, Your Honor.

[00:30:20] Speaker 02:
And the government believes is the timing of this is essential of when... Timing is essential to everything.

[00:30:26] Speaker 02:
And it is in this case, and the government would submit that there's no plain error here because the court said it understood what the government's... Getting a little bit clearer.

[00:30:38] Speaker 02:
Excuse me?

[00:30:38] Speaker 04:
Could have... Getting a little bit clearer.

[00:30:42] Speaker 02:
The court said it understood what the government's recommendation was.

[00:30:48] Speaker 02:
And the government believes, therefore, there is no claim error.

[00:30:51] Speaker 02:
And the outcome of the proceedings would not have been changed, which is the standard for this case.

[00:30:57] Speaker 02:
And my time is up, unless the court has further questions.

[00:30:59] Speaker 04:
So if the outcome couldn't be changed, would that not counsel for assuming, hypothetically, that we haven't decided this, but assuming, hypothetically, we send it back?

[00:31:11] Speaker 04:
Would that not counsel for a reassignment?

[00:31:15] Speaker 02:
The government has viewed the cases cited by the defense and is unaware of other cases saying not to reassign.

[00:31:24] Speaker 02:
So based on, if the court finds breach based on the cases, the breach of the plea agreement, the cases the government's seeing counsel for reassignment.

[00:31:35] Speaker 03:
Thank you.

[00:31:35] Speaker 03:
Yeah, no, I think it's automatic.

[00:31:37] Speaker 03:
It's no knock on the district judge, but it's just automatic reassignment, yeah.

[00:31:41] Speaker 02:
That's the cases that the government's seen as well.

[00:31:44] Speaker 01:
Thank you, counsel.

[00:31:44] Speaker 02:
Thank you, your honor.

[00:31:46] Speaker 01:
Two minutes.

[00:31:51] Speaker 00:
Thank you, your honor.

[00:31:52] Speaker 01:
So just so I'm clear on this, if they had said in the memo, the guideline range starts at 135 months, in our view, we are going to recommend the low end of whatever guideline range you calculate.

[00:32:08] Speaker 01:
That would be OK?

[00:32:11] Speaker 00:
I think that's very close because of this inherent sort of understanding that you're sort of de facto recommending 135.

[00:32:20] Speaker 00:
I think that's very a close call.

[00:32:23] Speaker 00:
But we recognize whatever the court is going to do.

[00:32:26] Speaker 00:
We think the low end of the guidelines as calculated by the court is going to be appropriate.

[00:32:32] Speaker 01:
That would be okay.

[00:32:33] Speaker 01:
And we calculate a guideline range that starts at 135 is clearly okay.

[00:32:37] Speaker 00:
That's why it gets very close to me.

[00:32:39] Speaker 00:
And I really encourage the court to look at both Kirkland and Navarro cited in the briefs because they're right on point for this.

[00:32:48] Speaker 00:
But I'd also, you know, one of the things I think gets lost in this at the Court of Appeals is the staggered performance of these contracts.

[00:32:54] Speaker 00:
Right?

[00:32:54] Speaker 00:
Because the staggered performance of these contracts.

[00:32:59] Speaker 00:
So the government has what it wants, a conviction without trial at the change of plea hearing.

[00:33:04] Speaker 00:
We're now months later at a sentencing, and the defendant's in a vulnerable position.

[00:33:09] Speaker 00:
But what Mr. Murray was expecting was a sentence, a good faith argument, the added persuasiveness of a prosecutor standing in court and saying, no more than 108 is necessary.

[00:33:22] Speaker 01:
If he was expecting that, I mean, it's a little hard to say he was expecting that when he didn't seem to mind that he didn't get it, right?

[00:33:29] Speaker 01:
I mean, the plain error nature of this.

[00:33:31] Speaker 00:
And I can tell, Your Honor, exactly why that is.

[00:33:33] Speaker 00:
It's because most trial counsel are not aware of the reassignment rule.

[00:33:37] Speaker 00:
And it's actually in my notes.

[00:33:38] Speaker 03:
They're not aware of them.

[00:33:38] Speaker 00:
They're not aware of the reassignment rule.

[00:33:42] Speaker 00:
I understand.

[00:33:43] Speaker 00:
I understand.

[00:33:44] Speaker 00:
They should be.

[00:33:45] Speaker 00:
And I was actually going to ask the court

[00:33:48] Speaker 00:
I think make that a key point of its opinion, because they're stuck thinking all I've got here is either withdrawal or proceed forward.

[00:33:58] Speaker 00:
And so I acknowledge the error, but I think there's a couple of things I point out.

[00:34:02] Speaker 00:
One, Your Honor got it exactly right.

[00:34:03] Speaker 00:
Strict compliance is required.

[00:34:05] Speaker 00:
There's no, you know, it's required that they comply.

[00:34:09] Speaker 00:
If the government had said absolutely nothing, that is breach.

[00:34:13] Speaker 00:
The fact that they never gave the correct recommendation, that is breach, plain and simple, regardless of any of these timing issues.

[00:34:20] Speaker 00:
Regardless of what they said at sentencing in their memo beforehand, they never gave the correct recommendation.

[00:34:25] Speaker 00:
that is breach under this court's clear law.

[00:34:28] Speaker 00:
Explicit breach.

[00:34:30] Speaker 00:
Explicit breach, yes.

[00:34:31] Speaker 03:
So under the terms of the agreement, I confess I don't have the plea agreement in front of me, the government was required not merely to acquiesce, but to advocate for the low end?

[00:34:40] Speaker 00:
Yes.

[00:34:41] Speaker 00:
They're required to recommend no greater than the low end of the guidelines.

[00:34:47] Speaker 00:
The other points I want to point out, my colleague touched on substantial rights.

[00:34:51] Speaker 00:
The case law of the Supreme Court, this court, and every other circuit has said prosecutorial recommendations matter.

[00:34:57] Speaker 00:
And of course they do.

[00:34:58] Speaker 00:
That's why we bargain for them.

[00:35:00] Speaker 00:
The marketplace tells us that they matter.

[00:35:03] Speaker 00:
I'd point out in the reply brief, we cited numerous cases where this particular district judge, Judge Rice, follows exactly, exactly the government recommendation to 60 months

[00:35:14] Speaker 00:
in case after case after case after case.

[00:35:17] Speaker 00:
So we know this judge follows it.

[00:35:19] Speaker 00:
One thing that I don't want to get lost, the recommendations that should have been made, the defense recommendation and 108, are both below what the district court actually ordered.

[00:35:32] Speaker 00:
And I'd say it's not unheard of, but it's relatively rare for a judge to go above both parties.

[00:35:39] Speaker 00:
And nothing in the record suggests or explains the district court commented that it was doing so, or is even aware that it was doing so.

[00:35:46] Speaker 01:
Thank you.

[00:35:47] Speaker 01:
Thank you, Your Honors.

[00:35:48] Speaker 01:
Thank you both.

[00:35:48] Speaker 01:
We thank both sides for their helpful arguments, and the case is submitted.

[00:35:52] Speaker 04:
We gave you a hard time, but that's our job.