[00:00:03] Speaker 01:
Thank you, Your Honors.

[00:00:03] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
May it please the court.

[00:00:06] Speaker 01:
Devin Burstein on behalf of Mr. Lopez-Jacone.

[00:00:10] Speaker 01:
Your Honors, this is a case about whether a defendant who, months before trial, offered to stipulate to the government's case, told the court he was, quote, not contesting the offense elements, entered into multiple written stipulations to offense elements,

[00:00:27] Speaker 01:
then repeatedly admitted all the essential elements of the crime at trial, did not cross-examine any government witnesses, or raise a single trial objection, should be denied acceptance of responsibility simply because he asserted a duress defense that was expressly permitted by the district court.

[00:00:45] Speaker 01:
Under the guidelines in this court's case law, the answer is no.

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Because Mr. Lopez Chacon truthfully admitted the conduct comprising the offense of conviction,

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and did not deny the essential elements of guilt, he was entitled to the reduction.

[00:01:02] Speaker 04:
There are other considerations that are appropriate as well.

[00:01:05] Speaker 04:
I think it's a bit of a messy record in this case, because on the one hand, there are some suggestions in the record, including from the government, that the decision to go to trial alone

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may be a basis for denial of acceptance, and that's not correct.

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But it doesn't mean that the district court can't consider other factors.

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It's a duress defense, the timely surrender, timely acceptance or pre-trial conduct are legitimate considerations as well.

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And so there's some suggestion in the record that the district court recognize that discretion.

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So how do you respond to that?

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I think if we look at exactly what the district court said,

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we can see the error quite clearly.

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So we're at ER 18.

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And I highlighted some parts that I think really underline the fact that in this case, the messy record complicates things because I think what we think is that the district court maybe didn't quite

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I hate to say understand, but maybe didn't quite understand how the duress defense under Gamboa-Cardenas could qualify.

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He says under the guidelines, this wouldn't qualify.

[00:02:22] Speaker 03:
Well, he is responding to the government's argument.

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The government says, you look at pretrial conduct and pretrial statements, whether he voluntarily surrendered to authorities, et cetera, of the timeliness.

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And he says, I agree with the government.

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And then he says that under the guidelines, this wouldn't qualify.

[00:02:39] Speaker 01:
That's wrong.

[00:02:40] Speaker 01:
As a matter of law, that's wrong.

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And then he goes on Judge Akuta, and in the next paragraph,

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He says, I don't think this fits within the guidelines.

[00:02:49] Speaker 01:
That's also wrong as a matter of law.

[00:02:51] Speaker 03:
And then what we really see is I guess I need to ask about that because, in fact, your client didn't voluntarily surrender as soon as he was free from a threat or do any of the pretrial conduct other than his counsel saying shortly before trial, we're not going to contest the elements of the offense.

[00:03:15] Speaker 03:
It's three months before trial, but— Well, according to the government's response to your 28-J letter, the trial was imminent, and then the district court continued it after that time.

[00:03:29] Speaker 03:
So in fact, at the time of that hearing, everyone thought the trial was imminent.

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Is that wrong?

[00:03:34] Speaker 01:
That's right, but he never wavered in those three months.

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And I think this is a bit of a red herring, because we all know if he had pled guilty in the morning of trial, he would have gotten the two points.

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He wouldn't have gotten the third point.

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So the idea that it's somehow a few days, a few weeks, a few months, it's a clever argument, but it's a red herring.

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But then turning back directly to the question,

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It's any time this comes up, it's going to be because the person didn't voluntarily surrender.

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Gamboa Cardenas, he didn't voluntarily surrender.

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So it's, again, I think, a bit of a red herring argument.

[00:04:15] Speaker 03:
Right, but we're looking at abuse of discretion.

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So we're looking at whether the district court is this discretion in saying that he didn't think he qualified for acceptance of responsibility.

[00:04:25] Speaker 01:
Respectfully on, I think it depends how you look at those statements.

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If that's an application, you're looking at abusive discretion.

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But if you're looking at interpretation, you're looking at a de novo.

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One potential reading of this record is that the district court didn't think that duress

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defense could be presented at trial and still qualify for acceptance.

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If that's what the district court thought on this messy record, as Judge Winn noted, that's a de novo review because that's a legal error.

[00:05:02] Speaker 01:
That's not an application error.

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It's certainly not clear from the record.

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Respectfully, my argument about interpretation carries more weight than application.

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The judge correctly says, there can be rare times when you go to trial and preserve a legal challenge to a statute.

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But I don't think it's quite comparable.

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And I understand why he said that, because that's what the guidelines say.

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But this court's case law has made very clear

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that that's not the only time.

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I mean, we look at cases like Luang or Rojas Flores.

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Both of those were not challenges to the statute.

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In Rojas Flores, the court said,

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because quote, he did not deny the factual elements of guilt, Rojas Flores accordingly was entitled to the reduction for acceptance of responsibility.

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And the same was in Luang.

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And if we look at actually your honors published cases on this very issue, just your honors published cases on it.

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Rojas Pedroza and Doe.

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We see where the critical point of distinction is.

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If I can quote your honors language from Rojas Pedroza.

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In denying acceptance, quote, the court focused particularly on Rojas's cross examination of the government agent who had witnessed his removal in April 2010.

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Your honor goes on to say, under the guidelines, it was appropriate for the district court to view Rojas's frivolous challenge

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to the evidence supporting an element of the offense as weighing against acceptance of responsibility.

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Your Honor made the same point in Doe.

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There is not one case this court is going to find where somebody went as far as my client did and was still denied acceptance.

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In order to deny acceptance on this record, this court would have to discount what the guidelines say.

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And the guidelines specifically say the first factor

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That's indicative of a sentence is quote, truthfully admitting the conduct comprising the offense of conviction.

[00:07:11] Speaker 01:
There is no way to look at this record and say, Mr.

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Lopez didn't do that.

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The second thing the guidelines say is as to trial.

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This is what the guidelines say.

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This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.

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There is no way to look at this record.

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and conclude that my client denied the essential factual elements of guilt.

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That's it.

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End of story.

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If we follow the plain language of the guidelines commentary, he qualified.

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Now, whether the district court didn't understand that fact or understood it and simply got it wrong, it doesn't matter.

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Reversal is the appropriate remedy here.

[00:07:57] Speaker 01:
And I see I'm at two minutes, so if there's no further questions, I'd love to save them for rebuttal.

[00:08:03] Speaker 01:
Thank you, Your Honors.

[00:08:13] Speaker 02:
Good morning, Your Honors.

[00:08:14] Speaker 02:
Saria Bahadou on behalf of the United States and may it please the court.

[00:08:19] Speaker 02:
This is one of those cases that is about deference.

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It is about how much deference that a district court is entitled to.

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And in these circumstances, when evaluating acceptance of responsibility and whether evaluating a defendant is severely contrite, that deference is at its highest.

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And that should really be the end of the matter.

[00:08:44] Speaker 02:
And so I do want to focus first on whether there was a legal error.

[00:08:47] Speaker 04:
It's not about deference, though, or how much deference, depending on whether we view the record as the court making factual findings.

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or applying the guidelines to the facts or interpreting the guidelines.

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So there are different levels.

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So we have to be able to discern from this record what the district court was doing.

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And my problem, as I stated to

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your opponent counsel there, that this record is a bit messy.

[00:09:18] Speaker 04:
So I think we start with the PSR.

[00:09:21] Speaker 04:
The PSR said that acceptance of responsibility points are not warranted because he went to trial.

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And that's incorrect.

[00:09:28] Speaker 04:
As a matter of law, that's incorrect, right?

[00:09:30] Speaker 02:
That's correct.

[00:09:30] Speaker 04:
Just because you go to trial doesn't mean that you are not entitled to... Then the next thing that happens in the record is the government files a sentencing position paper.

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And in the sentencing position paper, the government says,

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That the PSR is correct.

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He's not entitled to acceptance of responsibility because he went to trial.

[00:09:48] Speaker 04:
That's also incorrect.

[00:09:50] Speaker 02:
Right.

[00:09:50] Speaker 04:
The government should have expanded further in its sentencing position.

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And so then we get to the sentencing hearing and the district court says the PSR correctly calculated the guidelines.

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So at that point, I think in my view, the table is sort of set.

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And I agree with the government's argument that I think there are statements during the sentencing hearing suggesting that the district court recognized that it had some discretion, the statement that counsel referenced, that there are rare cases in which you can't go to trial.

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still get acceptance.

[00:10:24] Speaker 04:
But I'm not sure that that's enough to demonstrate an understanding of the fact that you can go to trial, present a arrest defense, and still be entitled to acceptance of responsibility.

[00:10:35] Speaker 04:
So how do you respond to that in the face of those conflicting information in the record, some of which were created by the governments?

[00:10:43] Speaker 02:
I do think it's enough and I'll respond in a few ways so first in addition to in terms of what the table the table being set there was also an addendum that was filed probation by probation where it would expanded on the commentary and pointed to several aspects and several other considerations of course one consideration is whether or not this person did not contest

[00:11:08] Speaker 02:
the underlying elements.

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And then there's other considerations that we've been discussing, whether or not they could have manifested acceptance earlier, whether or not they could have voluntarily surrendered to law enforcement.

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The next thing in terms of why this is enough on this record is that the government did expand on its position.

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And maybe the government should have said to be clear that just because he went to trial, he should not be penalized.

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But the government did explain that there are rare situations

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It pointed to those exact considerations in application note one, and it explained why the defendant did not fit those other considerations in application note one.

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And then I think if we look at the actual text, as my colleague did, we disagree on what phrases to focus on, but at ER 18, there are three things that I think are important.

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One, as Judge Ikuto pointed out, the district court said that he agreed with the government.

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The government had just spent just a couple pages earlier talking about the other considerations in application note one.

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Just because the defendant meets one of those considerations doesn't mean that he meets all of them.

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And that was the government's point.

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And by saying, I agree with the government, he is recognizing that

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that there are other considerations at play.

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The other thing I want to point out is that the district court, as you noted, said this is not the norm when someone raises a duress defense that they simply get acceptance.

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And that's consistent with this court's case law.

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Even Gamboa Cardenas says that it's rare.

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District courts have to focus on pretrial statements and conduct.

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And the guidelines, of course, say that it's rare.

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So that's another recognition that he does have discretion and that it's simply not the norm.

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And then also, I do want to highlight that the district court says, so in all, in all, I don't think that the case fits within the guidelines.

[00:13:02] Speaker 02:
And by saying in all, he's not just considering the sentencing, he's also considering, and he talked about the trial at the beginning of the sentencing because he was denying the Rule 29 motion in this case,

[00:13:13] Speaker 02:
So he essentially went back over the trial testimony.

[00:13:17] Speaker 04:
This judge- What was the sentencing range difference between acceptance of responsibility points in this case versus not acceptance of responsibility?

[00:13:24] Speaker 02:
So without acceptance, the range is 51 to 63 months with a total offense level of 22.

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And then with acceptance, his total offense level would be 20.

[00:13:37] Speaker 02:
He has a criminal history of three.

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So his guidelines range would be 41 to 51 months.

[00:13:42] Speaker 02:
And of course, the district court

[00:13:44] Speaker 02:
explained that he would consider the defendant's position within the overall guideline sentence, within his overall guideline analysis, and then he imposed a below guideline sentence.

[00:13:55] Speaker 00:
And I do want to point out to... But on that last point though, where does he articulate why the variance or why the downward departure, if he calls it that?

[00:14:06] Speaker 00:
I'm not sure I caught that in the record.

[00:14:08] Speaker 02:
So he articulates it, I would say, at ER 19 and 20, and then again at ER 21.

[00:14:15] Speaker 02:
And I think he specifically says, at ER 21, Your Honor, this constitutes a variance below the guidelines which is informed by the 355.3a factors to which I've just referred.

[00:14:25] Speaker 02:
He discusses the defendant's plan to move to Costa Rica.

[00:14:29] Speaker 02:
And then he also says, and overall, I think that taking into account all the facts and circumstances, it's appropriate.

[00:14:35] Speaker 02:
And of course, the district court could have said more, but I want to point the court to Gambino Ruiz, where this court said that so long as a district court does not rely on impermissible factors, and so long as it considers the facts of this case, this determination of an acceptance reduction should be upheld even absent

[00:14:56] Speaker 02:
a specific explanation.

[00:14:58] Speaker 02:
What we have here is the district court considering- Council, I'm sorry for interrupting you.

[00:15:01] Speaker 04:
I may have missed it, but was there a reference specifically during the sentencing hearing to the PSR addendum?

[00:15:09] Speaker 04:
I believe, let me just check.

[00:15:12] Speaker 04:
At ER 8?

[00:15:14] Speaker 04:
Oh, I'm sorry.

[00:15:15] Speaker 04:
Because at the end when the court said, I find the report to be correct and accurate, I take that as a comment on the PSR.

[00:15:23] Speaker 02:
I think that's correct, but at ER 8, the district court explains that it's read and considered the pre-sentence report, the addendum, the defendant's position, and the government's position.

[00:15:34] Speaker 02:
So what I was about to say was I was going to go to Rojas Pedroza, where this court explained that just because the district court references the trial, that doesn't mean that we have a legal error.

[00:15:46] Speaker 02:
So long as it considers the facts of the case and it considers the record as a whole and doesn't penalize, really, the defendant for going to trial.

[00:15:54] Speaker 02:
And we don't have that here.

[00:15:55] Speaker 02:
That would be a mistake of law.

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If this court penalized the defendant for going to trial or penalized some constitutionally protected conduct, then we would have that mistake of law.

[00:16:04] Speaker 02:
But that's not what happened here.

[00:16:07] Speaker 02:
And also, I want to respond to this fact of how there's not cases that go as far as where this defendant went.

[00:16:13] Speaker 02:
I want to point the court to Molino.

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In that decision, this court affirmed a denial of the reduction, noting that defendant asserted a duress defense and essentially denied culpability of the offense because he gave inconsistent versions leading up to his arrest.

[00:16:31] Speaker 02:
I also want to point the court to Valdez Lopez.

[00:16:34] Speaker 02:
There, the district court said, there is no acceptance of responsibility.

[00:16:39] Speaker 02:
You went to trial.

[00:16:41] Speaker 02:
The court affirmed that decision

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because the district court went on to discuss sentencing factors and how they apply to this case.

[00:16:49] Speaker 02:
We do not have a district court going that far.

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We have a district court who's considered the record.

[00:16:54] Speaker 02:
The district court sat through this trial.

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The district court sat through a year and a half of litigation with this defendant who went pro se at times, so he had close conduct with this defendant.

[00:17:05] Speaker 02:
And of course, the district court presided over pre-trial litigation where it heard

[00:17:10] Speaker 02:
all of the moments before trial where this defendant did have opportunities to surrender to law enforcement and didn't.

[00:17:17] Speaker 02:
And so based on the record as the whole, we think that the district court did enough under this court's case law, Gambino Ruiz, and the cases that I've mentioned, and we would ask that the district court's decision be entitled to the deference that it's owed and upheld.

[00:17:32] Speaker 02:
Unless the court has other questions, we ask that we affirm, the court affirms.

[00:17:36] Speaker 02:
Thank you.

[00:17:36] Speaker 02:
Thank you.

[00:17:37] Speaker 02:
Okay, you have a few minutes for rebuttal.

[00:17:39] Speaker 01:
I'm glad that the government brought up the addendum because it just makes things worse.

[00:17:47] Speaker 01:
The addendum to the PSR, this is what the probation officer says to justify, to continue denial.

[00:17:56] Speaker 01:
Chacon went to trial, thereby requiring the government to prepare for trial.

[00:18:01] Speaker 01:
That's legal error.

[00:18:02] Speaker 01:
That only applies to the third point, not the second point.

[00:18:05] Speaker 01:
In the government's position paper, the government notes that the jury rejected Chacon's duress defense, for which he had the burden of proof.

[00:18:13] Speaker 01:
Also legally irrelevant to the acceptance.

[00:18:17] Speaker 01:
The addendum only furthers the problem by encouraging the district court to make an additional two additional legal errors.

[00:18:29] Speaker 01:
Second,

[00:18:30] Speaker 01:
The guideline range that was brought up, it proves the prejudice here.

[00:18:34] Speaker 01:
Well, I mean, under the Supreme Court law, a guidelines error is presumed prejudicial anyway, but let's just knock it out right now.

[00:18:41] Speaker 01:
He got a below guideline sentence of 45 months.

[00:18:44] Speaker 01:
With acceptance, his low end would have been 41 to 51 months.

[00:18:48] Speaker 01:
41 is less than 45, therefore the prejudice is beyond dispute.

[00:18:54] Speaker 00:
Although he says, the judge, I think it was ER 18, that he could consider the issue of acceptance under 3553A.

[00:19:04] Speaker 00:
So how do we know?

[00:19:06] Speaker 01:
Great point, which is where I was going to end, Judge Petaglia.

[00:19:09] Speaker 01:
We don't know.

[00:19:11] Speaker 01:
We can't know, but what we do know is that a resentencing proceeding is a very small price to pay.

[00:19:18] Speaker 01:
This full resentencing initially was what, 20 pages, 25 pages?

[00:19:24] Speaker 01:
This would take 10 minutes, 15 minutes at the most.

[00:19:27] Speaker 01:
That's a small price to pay in the interest of justice to get it right.

[00:19:33] Speaker 01:
We're simply asking the court for an opportunity to get it right.

[00:19:37] Speaker 01:
Thank you.

[00:19:39] Speaker 03:
We thank both sides for their argument.

[00:19:42] Speaker 03:
The case of the United States versus Loba Chacon is submitted.