[00:00:03] Speaker 04:
Yes, Your Honor.

[00:00:04] Speaker 04:
May it please the court, Your Honors.

[00:00:06] Speaker 04:
My name is Zachary Ayers on behalf of the appellant Vincent Nicholas Petrushkin, and I reserve three minutes of my time.

[00:00:13] Speaker 04:
So the main issue here in this case is whether the district court abused its discretion when it sentenced Mr. Petrushkin to 48 months, a 48-month sentence that was disproportionate to his actual conduct.

[00:00:26] Speaker 04:
and substantively unreasonable when it failed to state its reasons of the sentence and not follow the agreement of the parties, which at the time was 12 months and a day when the plea agreement was entered into.

[00:00:39] Speaker 04:
And then by the time he got to sentencing would have been and was requested by both parties as time served.

[00:00:47] Speaker 04:
Now, 18 U.S.C.

[00:00:49] Speaker 04:
3553C states that the court shall state its reasons on the record.

[00:00:56] Speaker 04:
And what we have here is the district judge did not, the sentencing district judge, because there were, to be clear, there were two district judges in this matter.

[00:01:05] Speaker 04:
One took the plea.

[00:01:06] Speaker 04:
That judge eventually came to the Ninth Circuit.

[00:01:14] Speaker 02:
give his reasons because he recalculated the guidelines.

[00:01:18] Speaker 02:
And to make that recalculation, he had to, in effect, express certain opinions about what he thought was the underlying conduct.

[00:01:28] Speaker 04:
I disagree with that in one respect, because when you look at the transcript as it's written, the final district judge does not indicate that was a reason for why he picked 48 months for Mr. Petrushkin.

[00:01:43] Speaker 04:
What you have in the sentencing transcript is you have the district court goes through the original guideline calculation as the pre-sentence report indicates.

[00:01:53] Speaker 04:
Then he makes an alternative finding for the guidelines.

[00:01:58] Speaker 04:
Then the parties get to state what sentence they're asking for on behalf of Mr. Petrushkin.

[00:02:05] Speaker 04:
The government asked for time served.

[00:02:08] Speaker 04:
Mr. Petrushkin's attorney, myself, asked for time served.

[00:02:12] Speaker 04:
Then Mr. Petrushkin gets up and states his allocution to the court.

[00:02:16] Speaker 04:
The court asks only three questions.

[00:02:19] Speaker 04:
One, how long were you in, how long was your prior sentence?

[00:02:24] Speaker 04:
A year and a half.

[00:02:25] Speaker 04:
How long have you been out prior to the commission of this offense?

[00:02:29] Speaker 04:
Three weeks.

[00:02:30] Speaker 04:
And then did Mr. Petrushkin have anything else to say?

[00:02:33] Speaker 04:
No, he didn't.

[00:02:35] Speaker 04:
And so the judge goes and says, 48 months based on the plea.

[00:02:40] Speaker 04:
And that's it, there's nothing.

[00:02:43] Speaker 02:
Isn't it implicit in that that his primary reason for imposing the sins was he felt this guy was in need of much more specific deterrence.

[00:02:57] Speaker 02:
He had utterly disregarded the effect of his prior conviction and his

[00:03:03] Speaker 02:
and as soon as he got out, he was at it again.

[00:03:07] Speaker 02:
Isn't that, you and I may disagree that that was the right way to go, but isn't that in effect a statement of reasons?

[00:03:19] Speaker 04:
I disagree as to that being a statement of reasons, and you can't imply from this record.

[00:03:24] Speaker 04:
This judge, it says in 18 USC 3553 that the district court shall state its reasons.

[00:03:30] Speaker 04:
The problem we have is the district court provided no reasons

[00:03:34] Speaker 04:
It's implying it doesn't state the reason.

[00:03:37] Speaker 02:
So if we agree with you and we send it back, I thought you were also challenging his recalculation of the guidelines.

[00:03:50] Speaker 04:
I was challenging the original calculation, not the newer version of it.

[00:03:55] Speaker 04:
Okay.

[00:03:57] Speaker 04:
So if I was unclear in my brief, I apologize.

[00:03:59] Speaker 04:
The original calculation that was as we see in the pre-sentence report is what I challenged.

[00:04:04] Speaker 04:
And so that's those were the particular challenges that we have and the and what we have to go back to is we have to look at the facts of the situation that took place and what took place is

[00:04:18] Speaker 02:
where's the passage of the firearm from who to who and i would direct the court to uh... or as my english teacher mother would say from who to whom but that's a little appreciate the correction your honor uh... i would like to be english professor it's from whom to that yes thank you uh... i really don't go down the path of grammatical uh... lessons here one thing i think

[00:04:45] Speaker 00:
is my understanding is the government isn't relying on transfer, but is relying only on possession.

[00:04:51] Speaker 04:
Yes, that's what the government is.

[00:04:52] Speaker 00:
And they would have to show that the quality of Mr. Petushkin's possession meets the standard under

[00:05:02] Speaker 00:
2K2.1C1.

[00:05:03] Speaker 00:
Okay.

[00:05:05] Speaker 04:
So that's an interesting question because the original district judge had a question at the change of plea as to what was the Ninth Circuit case law and even if it's momentary, it's merely constructive.

[00:05:20] Speaker 04:
Here, we're looking at the sentencing, there's a little more flexibility in that argument, and that the momentary possession

[00:05:28] Speaker 04:
was five seconds or less by Mr. Petrushkin.

[00:05:32] Speaker 04:
And I would again direct the court to 3ER 104 through 106, the report that's under seal.

[00:05:40] Speaker 04:
That indicates we're transferred from Mr. Burns to Mr. Holmes.

[00:05:45] Speaker 04:
It then transferred to Mr. Petrushkin because he wanted to admire it.

[00:05:49] Speaker 04:
And then he quotes, hell yeah, in admiration, hands it back to Mr. Holmes.

[00:05:53] Speaker 04:
And then you have that intervening event where Mr. Holmes would say, stay in the car, and then Mr. Holmes commits all the rest of the crimes.

[00:06:04] Speaker 04:
So what I'm saying here is that for that momentary possession, a 48-month sentence is excessive.

[00:06:12] Speaker 01:
That's what we're saying, Your Honors.

[00:06:16] Speaker 01:
If the possession is long enough, and I understand you say that it's not, but if the possession is long enough within the meaning of the guideline, was it a possession with knowledge or intent that it would be used in connection with another offense?

[00:06:33] Speaker 04:
Well, I don't think he knew that at the time entirely.

[00:06:37] Speaker 01:
Well, he knew he was going to get out of the car and use it for something.

[00:06:41] Speaker 04:
Well, we didn't, I don't think Petrushkin knew what Holmes was ultimately going to do.

[00:06:46] Speaker 04:
That's the problem.

[00:06:46] Speaker 01:
Well, he knew he was going to rob the guy.

[00:06:49] Speaker 04:
He would, well, before the gun ever came out, he didn't know he, there was a other individual named Spider that they were talking about.

[00:06:56] Speaker 04:
But the problem we have there is they never encountered a person named Spider at that, on that day on November, I believe it was November 9th of 2021.

[00:07:06] Speaker 04:
And then,

[00:07:08] Speaker 04:
The gun did not come out until Mr. Burns brought it out in the car just for homes was to do the deal with the agent.

[00:07:18] Speaker 01:
So he didn't know what... I understand the arguments, but I'm really interested for the moment in this construction of the guideline, how I'm supposed to understand it.

[00:07:26] Speaker 01:
If, and I don't ask you to concede this, if the state of his knowledge was enough

[00:07:33] Speaker 01:
that he knew it was going to be used in another offense.

[00:07:36] Speaker 01:
And if the five-second possession is enough, is the guideline, part of the guideline satisfied, the part of the guideline that says possessed with knowledge or intent that would be used or possessed in connection with another offense?

[00:07:51] Speaker 04:
I don't think it's satisfied because he ultimately did not know what Holmes was going to do.

[00:07:56] Speaker 01:
No, I asked you to assume for the moment that he knew.

[00:08:01] Speaker 01:
And I understand your argument that he did not, and I may end up agreeing with you on that point, but I'm just trying to understand the guideline, and then I'm going to try to apply it.

[00:08:12] Speaker 01:
I read the guideline.

[00:08:15] Speaker 01:
If he possesses it with the knowledge that it will be used in another offense,

[00:08:21] Speaker 01:
I think he qualifies under the guideline.

[00:08:23] Speaker 01:
Is that right or is that wrong?

[00:08:25] Speaker 04:
Well, that may be what the guideline says, but I'm saying, what I'm saying is, he does not know his actual- No, no, you're arguing- That's right, that's right.

[00:08:34] Speaker 01:
But he doesn't possess and that he doesn't know.

[00:08:37] Speaker 01:
I get it.

[00:08:37] Speaker 02:
Following up on Judge Fletcher's question, assume that we think there's enough there for the judge to have concluded that he knew what the gun was going to be used for.

[00:08:51] Speaker 02:
His momentary possession had nothing to do with that.

[00:08:56] Speaker 02:
It was, in your words, he just wanted to admire, you got a nice gun there.

[00:09:05] Speaker 02:
Does that, in your view, satisfy the guidelines?

[00:09:09] Speaker 04:
momentary possession.

[00:09:10] Speaker 04:
The momentary possession does not reach the level that he knew that what was going to happen next entirely.

[00:09:15] Speaker 02:
No, but we're asking you to assume for the purpose of answering this question that he did know.

[00:09:26] Speaker 02:
So put aside your doubts about that.

[00:09:31] Speaker 02:
Assuming he knew, but

[00:09:34] Speaker 02:
Nevertheless, his momentary possession had nothing to do with furthering that plan.

[00:09:42] Speaker 02:
It was just to admire the gun.

[00:09:44] Speaker 02:
It was an independent, if you will, act.

[00:09:47] Speaker 02:
In your view, would that satisfy or not satisfy the guidelines?

[00:09:53] Speaker 04:
It could.

[00:09:53] Speaker 04:
It could.

[00:09:54] Speaker 04:
I don't have a great answer for you, Your Honor, so it could.

[00:09:57] Speaker 04:
It's possible that it could.

[00:10:00] Speaker 04:
in making that assumption.

[00:10:02] Speaker 04:
Okay.

[00:10:03] Speaker 04:
So I would also, seeing as my time is coming to an end, I would just say that this is a plain error case because the judge didn't look at the, express the totality of the circumstances and state his reasons on the record.

[00:10:18] Speaker 04:
That's why the sentence was ultimately substantively unreasonable in light of the circumstances for Mr. Petrushkin.

[00:10:24] Speaker 04:
Thank you.

[00:10:33] Speaker 05:
I'll just address briefly the momentary possession issue that the court discussed with counsel that was discussed at the change of plea and the parties both agreed that the momentary possession was enough under the law.

[00:10:48] Speaker 05:
And in fact, there is also constructive possession.

[00:10:51] Speaker 05:
So whether by a felon or for this guideline purpose here, there was actual physical possession for the five or so seconds.

[00:10:59] Speaker 00:
The problem is I'm not sure how do we reconcile that with our cases interpreting possession like Routon and Valenzuela where we have said possession and you brief this right that possession the quality of the possession has to facilitate or at least potentially facilitate the other crime and you know you spent a lot of your briefing arguing why that is a reasonable inference from the facts right but there's if

[00:11:30] Speaker 00:
To me, I have trouble finding that this momentary possession actually facilitated Mr. Holmes' crime.

[00:11:38] Speaker 00:
I think if it just hadn't occurred and the gun had been transferred to Mr. Holmes by the other third party and Mr. Petrushkin hadn't just briefly held it and looked at it, I can't see how anything would have changed.

[00:11:54] Speaker 00:
I don't see how Mr. Petrushkin's

[00:11:57] Speaker 00:
act of holding that gun for a few seconds had any impact whatsoever on what occurred next.

[00:12:05] Speaker 05:
And that is the heart of the issue.

[00:12:06] Speaker 05:
It's not so much the possession, but whether or not under this court's case law for 2K2.1B6 and C1, whether or not it emboldened the other, the commission of the other offense, which here was the robbery.

[00:12:21] Speaker 05:
And that goes to,

[00:12:23] Speaker 05:
the defendant's intervening arguments or intervening events argument.

[00:12:31] Speaker 05:
And in this context, the government would argue that the chain of events was not broken.

[00:12:38] Speaker 00:
And essentially, the court had many facts before it from- Well, before we get there, I just want to know, do you agree that the possession had to, in some way, embolden the other offense?

[00:12:51] Speaker 05:
in under this court's case law with regard to 2K2.1B6, the plus four levels for possessing and connection with another offense has been interpreted that it can't just be there and there's another offense, but there is some effect of emboldening it.

[00:13:12] Speaker 00:
Do you have any basis?

[00:13:13] Speaker 00:
I mean, it seems to me that the similarity in wording between B6 and C1 would

[00:13:18] Speaker 00:
mean that that interpretation of B6 applies also to C1.

[00:13:22] Speaker 00:
And I didn't read your brief as arguing otherwise.

[00:13:25] Speaker 05:
You can make that inference because in the government believes that there is emboldening under either, and I can get to that in a minute, that it did embolden this offense.

[00:13:36] Speaker 05:
But the C1, the commentary refers to the relevant conduct guidelines in 1.3.

[00:13:45] Speaker 05:
And that's a different issue because 2K2.1b6 is not referring to the relevant conduct.

[00:13:52] Speaker 05:
The government would submit that it's likely even broader under that standard.

[00:13:57] Speaker 05:
The Rootin address, it doesn't address the relevant conduct issue.

[00:14:02] Speaker 05:
It addresses that emboldening.

[00:14:04] Speaker 05:
But in either event, there's two universes where the court can affirm the district court, and that's under both of the sentencing calculations that the court found in this particular case.

[00:14:19] Speaker 01:
Let me understand your answer or set of answers.

[00:14:22] Speaker 01:
As I'm reading C1, there are alternative grounds.

[00:14:29] Speaker 01:
One, if the defendant used or possessed in connection with, then there's a comma.

[00:14:36] Speaker 01:
or possessed with knowledge or intent that would be used.

[00:14:42] Speaker 01:
And you're saying that he has to satisfy the first of those in order to qualify under the guideline, and you're not relying on the second provision under C-1 which says possessed with knowledge or intent that would be used?

[00:14:56] Speaker 05:
It can be satisfied under either of those provisions.

[00:14:59] Speaker 01:
And the second of the provision doesn't say anything about in connection with.

[00:15:08] Speaker 05:
good that guideline your honor all it says is with knowledge of right and in this case

[00:15:50] Speaker 05:
yet yes the first subsection is in connection with the commission of a intended or attempted commission of another offense and then the other is with knowledge

[00:16:03] Speaker 05:
of or intent that it would be used in, well, actually both provisions use in connection with another offense, Your Honor.

[00:16:11] Speaker 05:
So it's in both.

[00:16:13] Speaker 02:
You're saying the language with knowledge or intent modifies both clauses, both?

[00:16:19] Speaker 05:
No, I believe with the intent or knowledge modifies the second section.

[00:16:23] Speaker 05:
There's two.

[00:16:25] Speaker 05:
It says in the first part of C1, if the defendant used or possessed any firearm or ammunition sighted in the offense of

[00:16:33] Speaker 05:
of conviction in connection with commission or attempted commission of another offense.

[00:16:38] Speaker 05:
That's one way in which C-1 is satisfied.

[00:16:41] Speaker 05:
The other way is or possessed or transferred to firearm with knowledge or intent that it would be used or possessed.

[00:16:51] Speaker 02:
So in the first clause would seem, given the second clause, would seem to me

[00:16:55] Speaker 02:
that he's committing the offense and the second clause is someone else is committing the offense but he knows about it and possessed it or transferred it in that connection.

[00:17:12] Speaker 02:
So the question is, I can see your argument for the second clause.

[00:17:17] Speaker 02:
I'm not quite sure what your argument is for the first clause.

[00:17:27] Speaker 05:
in that there is also an argument there because he did hand the firearm back to Mr. Holmes, who at that time, the defendant knew that the robbery would- That's the second clause.

[00:17:42] Speaker 02:
I understand that argument, but I don't see how you fit the first clause.

[00:17:51] Speaker 05:
Well, the argument can be made because his handing of the firearm

[00:17:58] Speaker 05:
is and that's the inchoate offense where he's assisting Mr. Holmes or partaking in this conspiracy for robbery because he knows about it and he's partaking in that.

[00:18:12] Speaker 00:
But I mean, the whole premise of our conclusion in Routen was that mere possession is not enough.

[00:18:20] Speaker 00:
That merely possessing a firearm, even while committing another crime, is not enough unless that possession emboldens or facilitates the other crime in some way.

[00:18:33] Speaker 00:
But now, under your interpretation, essentially, mere possession for just a few seconds

[00:18:42] Speaker 00:
would be enough as long as, because Mr. Patushkin knew, let's say, assumed, knew that another crime would occur.

[00:18:52] Speaker 00:
And I guess I'm trying to understand why we should conclude that that's enough given that

[00:19:00] Speaker 00:
In other cases, we've said the defendant's possession has to be more culpable than mere possession, right?

[00:19:09] Speaker 00:
That it has to actually have some effect on the other crime.

[00:19:13] Speaker 00:
And while he, you know, is the mere knowledge enough so that essentially there's an affirmative duty, he should not have given the gun back.

[00:19:21] Speaker 00:
I mean, I think that's, you know, or he should never have touched the gun.

[00:19:24] Speaker 00:
And maybe this case is, you know, if we take it that far, you know, what if someone's

[00:19:30] Speaker 00:
You know, spouse is in the same house.

[00:19:33] Speaker 00:
They could be charged with constructive possession.

[00:19:35] Speaker 00:
Maybe they know that their spouse is going to commit a crime.

[00:19:37] Speaker 00:
Are they going to be chargeable?

[00:19:38] Speaker 05:
And I can address this.

[00:19:40] Speaker 00:
So that's the factual question.

[00:19:42] Speaker 05:
The court previously was dealing with the legal question, what that TC1.1 means.

[00:19:47] Speaker 05:
The factual question, which I can address now, is before the court in the record between the PSR, the factual basis of the plea agreement, the objections

[00:19:58] Speaker 05:
filed by the defense the plea agreement was before the court and in the plea agreement the what defendant stated because this is defendant's statement in the plea agreement not just what happened but about his interview to law enforcement where defendant these are his own words he says he and Holmes the shooter met third-party Sergio they Holmes the shooter told Sergio they including mr.

[00:20:23] Speaker 05:
Petrushkin were going to meet someone and Holmes was going to rob that individual.

[00:20:29] Speaker 05:
Mr. Petrushkin knows this.

[00:20:31] Speaker 05:
When they get to the Motel 6, Burns, the third party serial, produces the Glock 17 to, and this is what Petrushkin says, to Holmes to use it for protection during the transaction.

[00:20:43] Speaker 05:
This is all in the facts.

[00:20:45] Speaker 05:
The defendant handled it, inspected it, gave it to Holmes.

[00:20:49] Speaker 05:
Holmes exits the vehicle and then they flee.

[00:20:52] Speaker 05:
What's also telling is his report, I may go slightly over time, but at ER 104 to 106, this is defendant's report of interview with the FBI, which was provided to the district court by way of defendant's objections to this particular guideline.

[00:21:09] Speaker 05:
And this is what defendant himself said and knew.

[00:21:12] Speaker 05:
He says that after Sergio joined Defendant and Holmes, Defendant thought, this is in quotes, Defendant thought they were going to rob someone but didn't know at the time it was for a gun.

[00:21:24] Speaker 05:
Defendant then tells the officers when they arrive at Motel 6, Holmes, whose whiskers, the nickname, says, I'm going to do this by myself.

[00:21:33] Speaker 05:
The defendant says, well, take off my jacket.

[00:21:35] Speaker 00:
Counsel, I understand.

[00:21:37] Speaker 00:
And there is a factual dispute, or what is the reasonable inference from the facts.

[00:21:41] Speaker 00:
But I actually do have an interpretive question still, which is there's clause one and clause two.

[00:21:47] Speaker 00:
There's clause one that was interpreted by Routen as requiring more than mere possession.

[00:21:54] Speaker 00:
Correct?

[00:21:55] Speaker 00:
Are you with me so far?

[00:21:56] Speaker 05:
We're talking about rotten applies to 2k to shirt be won.

[00:22:00] Speaker 00:
Okay, and then we have to make an inference that it means the same thing in the other the other subsection and then there's clause 2 of and I understand you're not conceding that because of the relevant conduct comment, but then the on the second clause there's possession of

[00:22:21] Speaker 00:
with intent or knowledge, I believe, knowledge that the gun will be used in connection with another crime.

[00:22:32] Speaker 00:
And I'm trying to understand, for the second clause, whether any type of possession, construction, constructive possession, fleeting, or whatever, so long as there is knowledge, you think that's satisfied, the clause two, that the mere possession

[00:22:50] Speaker 00:
with intent or knowledge is enough.

[00:22:52] Speaker 05:
They possess the firearm with the intent or knowledge, knowing that it's going to be used in another offense, then that tracks the language.

[00:23:01] Speaker 05:
And here, that's exactly what Mr. Petrushkin knew, because when the defendant in the emboldening, he says, hell yeah.

[00:23:10] Speaker 05:
When he looks at the gun, emboldening the shooter, yeah, go for it.

[00:23:15] Speaker 05:
And then Holm takes the gun, racks the gun in front of them,

[00:23:19] Speaker 05:
and then he tells them it's over a gun.

[00:23:22] Speaker 05:
So there's no dispute that he knew what was going on, that he had, he transferred the gun, said hell yeah, that Holmes is getting out of the car, he's gonna rob someone and it's over a gun.

[00:23:35] Speaker 05:
So he is both emboldening under 2K.21b6 and he has knowledge that that other offense is gonna

[00:23:44] Speaker 05:
occur by him passing the firearm to him.

[00:23:48] Speaker 05:
In either universe, the defendant has stipulated to the application of 2K2.1B6, the plus four, and the district court made an alternative finding.

[00:24:03] Speaker 05:
And the defendant stipulated to the application of that guideline.

[00:24:06] Speaker 05:
And the court found, in any event, under either guideline calculation, the higher

[00:24:12] Speaker 05:
for the NCOAID guideline, or of 110 to 120, or 77 to 96, that it still went down to 48.

[00:24:23] Speaker 02:
So, but even under the... So what do you say to the argument that your adversary let off with that the judge never really articulated the reasons for his sentence?

[00:24:35] Speaker 05:
It was clear before the court, as your honor indicated, because he had to go through the whole guideline analysis as to why 2K2.1C1 applied this, the whole transaction.

[00:24:46] Speaker 05:
It was clear he was very familiar with the facts and he also based on the 3553 factors.

[00:24:52] Speaker 05:
He doesn't undercardy.

[00:24:53] Speaker 05:
He doesn't need to check them off.

[00:24:54] Speaker 05:
It's not a checklist, but he knows that he just released from prison three and a half, three weeks ago.

[00:25:01] Speaker 05:
was in for a year and a half, and then his criminal history is a category six with multiple convictions and all that.

[00:25:09] Speaker 02:
So if his reasons under your view were number one, that a higher guideline applied, and number two, that he had not learned his lesson, for lack of a better way to put it, and we disagree with the first but not the second, do we have to remand?

[00:25:26] Speaker 05:
That it wasn't for deterrence?

[00:25:30] Speaker 02:
No.

[00:25:30] Speaker 02:
If we agree that he articulated, albeit through questions, that one of the reasons for his sentence was that the guy was a recidivist and on a very short term, you know, as soon as he gets released, he commits a new crime.

[00:25:49] Speaker 02:
But the other reason you said was implicit in his changing of the guidelines,

[00:25:58] Speaker 02:
was his determination that the guy was in effect more involved in the underlying event, that his possession was in some sense facilitating, and particularly his remarks afterwards.

[00:26:14] Speaker 02:
Okay, so my question to you is if we disagree with you that as to the guideline change,

[00:26:26] Speaker 02:
But we agree with you that the judge did do enough to articulate his reasons for saying this guy was a recidivist who needed more punishment.

[00:26:39] Speaker 02:
Do we still have to remand or is the latter sufficient?

[00:26:43] Speaker 05:
The government believes the latter is sufficient under 3553, even if the guideline wasn't changed.

[00:26:51] Speaker 05:
The facts are before the court, the sentencing facts, and 35, the court has to make the advisory guideline calculation

[00:26:59] Speaker 05:
which were in both instances higher.

[00:27:00] Speaker 02:
Right, but if he's operating under the assumption, which in my hypothetical is erroneous, that the guideline should be much, much higher than the parties had stipulated, then don't we still have to send it back?

[00:27:17] Speaker 02:
Because once he knows of that error, what I'm hypothesizing was an error,

[00:27:25] Speaker 02:
then he may change his mind as to what would be the appropriate sentence even given his recidivist.

[00:27:34] Speaker 05:
No, the government doesn't agree with that analysis because the government believes the 3553 factors that the court relied on were self-evident, independent of that guideline calculation, and the court... Well, how do we know that?

[00:27:49] Speaker 01:
Because he doesn't say it.

[00:27:51] Speaker 01:
He gets answers to the questions.

[00:27:53] Speaker 01:
And he doesn't tell us at all what those answers mean to him.

[00:27:59] Speaker 01:
We can infer that, but he doesn't say it.

[00:28:02] Speaker 05:
He says he's, I believe in the record, he's considered the purposes of the sentencing statute, referring to 3553, he talks about.

[00:28:13] Speaker 01:
Yes, but your answer says it's irrelevant what the guideline calculation is to the sentence he imposed.

[00:28:19] Speaker 01:
That doesn't make any sense to me.

[00:28:21] Speaker 01:
Judges pay attention to what the guideline range is.

[00:28:24] Speaker 05:
Yes, Your Honor.

[00:28:25] Speaker 05:
But the district court has also heard argument from the parties on the 3553 factors.

[00:28:35] Speaker 01:
Yes, but our law says that the district judge has to tell us how he or she evaluates the 3553.

[00:28:44] Speaker 01:
And we're pretty generous in the sense of inferring, reading between the lines, and so on.

[00:28:51] Speaker 01:
But he hears us very little.

[00:28:54] Speaker 01:
And it seems to me an entirely plausible inference that his sentence is influenced, maybe even substantially influenced, by the guideline calculation.

[00:29:04] Speaker 01:
And if his guideline calculation is wrong, I can't see how we don't send it back for re-sentencing.

[00:29:12] Speaker 05:
Again, the government stands by its argument.

[00:29:14] Speaker 01:
Well, I understand that.

[00:29:16] Speaker 05:
It's in our brief, and it's the same argument I'm making here, but in either event.

[00:29:21] Speaker 05:
And additionally, that even the lower guideline range was agreed to by the defense here by the stipulation.

[00:29:29] Speaker 00:
We've given you extra time.

[00:29:31] Speaker 00:
Yes, gone way over time.

[00:29:32] Speaker 00:
Thank you, Your Honor.

[00:29:33] Speaker 00:
I'll give you your three minutes on rebuttal.

[00:29:39] Speaker 04:
Again, I just reiterate that there simply was no reasoned analysis of, you know, the 3553A factors on the record by the district judge that took, you know, because it didn't take place.

[00:29:51] Speaker 04:
That was not stated on the record at sentencing.

[00:29:54] Speaker 04:
And it didn't reason what happened in the case.

[00:29:58] Speaker 04:
You know, it didn't reason what his ultimate history was.

[00:30:02] Speaker 04:
There's just no analysis whatsoever by the district court as to this sentence.

[00:30:06] Speaker 04:
And that's why we're asking the court to ultimately send it back.

[00:30:10] Speaker 02:
Well, supposing he had said, you know, regardless of the guidelines, regardless of the other 3553 factors which I've looked at,

[00:30:25] Speaker 02:
To my mind, there's one glaring factor here, and that's his recidivism at such a short period of time, and that's why I'm imposing the sentence.

[00:30:36] Speaker 02:
If he had said that, would that have been enough?

[00:30:41] Speaker 04:
I would think he would need more than that, actually.

[00:30:44] Speaker 04:
Why?

[00:30:45] Speaker 04:
Why he would need more than that?

[00:30:46] Speaker 04:
To explain, to show what, you know, why the sentence fits those 3553A factors, whether it's to prevent, you know, for him to follow the law.

[00:30:58] Speaker 04:
I mean, for Petrushkin to promote respect for the law and all the guideline factors that are required in

[00:31:04] Speaker 02:
No, in my hypothetical, he says, I've considered them all, but there's one that is much more in the facts of this case glaring than any of the others.

[00:31:13] Speaker 02:
Why isn't that sufficient?

[00:31:16] Speaker 04:
Because it's one piece of the overall person that he's looking at, that the district court's looking at when they're sentencing.

[00:31:23] Speaker 04:
And there's more to understanding what's happened, whether it's based off not just that, but the government's motion.

[00:31:31] Speaker 04:
the momentary possession, who the firearm passed to, the fact that Mr. Petrushkin saying hell yeah to the firearm did not embolden Mr. Holmes, but in fact, Mr. Burns' providing of that firearm emboldened Mr. Holmes.

[00:31:48] Speaker 04:
That would be the reason analysis that would explain a sentence.

[00:31:55] Speaker 04:
And just for the remainder of my time, Your Honor, he just simply did not state his reasons on the record at all under 3553C.

[00:32:03] Speaker 04:
Thank you, Your Honor.

[00:32:05] Speaker 04:
Thank you.

[00:32:07] Speaker 00:
Thank you.

[00:32:09] Speaker 00:
Thank Council for their arguments.

[00:32:11] Speaker 00:
This matter is submitted.