[00:00:07] Speaker 00:
Good morning, Your Honors.

[00:00:08] Speaker 00:
May it please the Court, Devin Burstein, on behalf of Mr. Graves.

[00:00:16] Speaker 00:
Your Honors, 25 years in prison is a very long time.

[00:00:23] Speaker 00:
We respectfully submit that this Court should not affirm any sentence, but certainly not one of that gravity unless it is sure that no errors impacted the District Court's judgment.

[00:00:35] Speaker 00:
And here, Your Honors, we submit such certainty is impossible because the district court and the parties below began with the wrong mandatory minimum sentence and also failed to consider the fact that Mr. Graves' genuine contrition, even expressed at the 11th hour, entitled him to a reduction for acceptance of responsibility.

[00:01:00] Speaker 00:
For those reasons, and to quote this court's decision in Murgia Rodriguez,

[00:01:04] Speaker 00:
Because a remand for resentencing requires minimal expenditure of judicial and prosecutorial time and resources, that is the appropriate remedy here.

[00:01:16] Speaker 00:
Turning to the Cunningham.

[00:01:18] Speaker 04:
Now Cunningham doesn't show up in the briefing before us until your reply brief.

[00:01:24] Speaker 00:
Right.

[00:01:25] Speaker 00:
And that's because the government didn't raise the strike argument until its answering brief.

[00:01:34] Speaker 04:
So you think Cunningham was irrelevant until the government raised Rodriguez?

[00:01:40] Speaker 00:
Yes.

[00:01:43] Speaker 00:
The government didn't assert that the mandate that this, I mean, the problem is that this wasn't properly and fully litigated below, right?

[00:01:52] Speaker 00:
So the way this comes out is grades one, we file a 28J letter to the court that says the statutory maximum for all of these was under 10 years.

[00:02:04] Speaker 00:
There's no response from the government.

[00:02:05] Speaker 00:
So none of them would qualify under the FSA, right?

[00:02:07] Speaker 00:
That's what happens.

[00:02:09] Speaker 00:
That's docket entry 62 and that engraves one.

[00:02:12] Speaker 00:
We specifically say that.

[00:02:14] Speaker 00:
There's no response from the government.

[00:02:16] Speaker 00:
And we say, because it's a three, four or five, it's not an FSA predicate.

[00:02:20] Speaker 00:
No response.

[00:02:21] Speaker 00:
Then this court assumes it's published decision, engraves, and says to the district court, on remand, you should consider

[00:02:29] Speaker 00:
the effect of the FSA.

[00:02:31] Speaker 00:
It goes back and between the transfer from the appellate lawyers to the trial lawyers and to the district court, everybody seems to have forgotten that.

[00:02:41] Speaker 00:
So then in the PSR, the revised PSR, it just states it's 15 years and nobody goes back to look at the FSA.

[00:02:50] Speaker 00:
So that's how we wind up with Cunningham at the very end.

[00:02:56] Speaker 00:
because then we take the same position in our opening brief that it's three, four, five.

[00:03:02] Speaker 00:
Right?

[00:03:03] Speaker 00:
Which is what 11352 says.

[00:03:06] Speaker 00:
The government comes back and says, yeah, yeah, yeah, that's right.

[00:03:08] Speaker 00:
It's three, four, five.

[00:03:09] Speaker 00:
But look, you were wrong about the strike.

[00:03:12] Speaker 00:
It was doubled for a strike.

[00:03:16] Speaker 00:
And then we go back and look and say, no, no, no, you're wrong.

[00:03:19] Speaker 00:
Because yeah, even if it were doubled for a strike, and what's the strike, we still don't know.

[00:03:24] Speaker 00:
But let's just assume it were doubled for the strike.

[00:03:27] Speaker 00:
Under Cunningham, the statutory maximum is not 10.

[00:03:30] Speaker 00:
It's eight.

[00:03:31] Speaker 00:
It's the middle term.

[00:03:32] Speaker 00:
And that goes back to Rodriguez.

[00:03:34] Speaker 00:
This case can really be decided with Rodriguez, the Supreme Court's Rodriguez, and Cunningham.

[00:03:40] Speaker 00:
And what Rodriguez says is, how do we determine what's the statutory maximum, the relevant statutory maximum?

[00:03:46] Speaker 00:
Why are we going to consider recidivist enhancements?

[00:03:49] Speaker 00:
Because what Rodriguez says, and I think it's at 3, maybe 383, Rodriguez says,

[00:03:56] Speaker 00:
is that what we're concerned with, yeah, 383, is what's the term the defendant, quote, a defendant may lawfully be sentenced to in terms of the term of imprisonment?

[00:04:06] Speaker 00:
What they say is what they're concerned with is the, quote, the way in which the concept of the maximum term of imprisonment is customarily understood by participants in the criminal justice process.

[00:04:18] Speaker 00:
What does that mean?

[00:04:19] Speaker 00:
I sit down with my client and he goes, what's my sentencing exposure?

[00:04:23] Speaker 00:
So the sentencing exposure is, what does that mean in practice?

[00:04:26] Speaker 00:
What can I actually get as a constitutionally lawful sentence?

[00:04:30] Speaker 00:
So let's just take a juvenile.

[00:04:32] Speaker 00:
Let's take it out of this, because this is a really good example, I hope.

[00:04:35] Speaker 00:
A juvenile commits a murder.

[00:04:37] Speaker 00:
He's 17, so he's going to be prosecuted as an adult.

[00:04:41] Speaker 00:
He sits down with his lawyer, and the lawyer says, look.

[00:04:44] Speaker 00:
The statute allows for the death penalty, but you're not susceptible to the death penalty or even LWOP, right, life without parole, because the Supreme Court has said you're not.

[00:04:54] Speaker 00:
So your real sentencing exposure is X, but it's not death.

[00:04:59] Speaker 00:
So the statute might say death, but that's not the statutory maximum.

[00:05:03] Speaker 00:
Statue might say LWOP, but that's not the statutory maximum.

[00:05:06] Speaker 00:
What we're concerned with is what could you actually get as a lawful Sixth Amendment or Eighth Amendment constitutional matter?

[00:05:12] Speaker 00:
And here we have the answer.

[00:05:15] Speaker 00:
It's eight.

[00:05:16] Speaker 00:
The middle term doubled.

[00:05:17] Speaker 00:
He pled guilty.

[00:05:18] Speaker 00:
There were no factors.

[00:05:20] Speaker 00:
So that's our Cunningham argument.

[00:05:22] Speaker 00:
And we think that controls those two cases put together.

[00:05:25] Speaker 00:
Cunningham and Rodriguez control that issue.

[00:05:28] Speaker 02:
Assuming you're correct about the error for the mandatory minimum, we're still reviewing this under plain error, so you would have to show that's reasonably likely that the judge would have come to a different sentencing decision.

[00:05:43] Speaker 02:
gave a 25-year sentence and he cited why.

[00:05:46] Speaker 02:
He said this was, you know, there was a violent crime involved in this drug offense and he lied at trial.

[00:05:54] Speaker 02:
So, I mean, how can this, how can you show that his substantial rights were affected?

[00:05:59] Speaker 00:
Right.

[00:06:00] Speaker 00:
And so really, assuming the court's going to decide to apply plain error on this first issue, we concede it applies to acceptance.

[00:06:07] Speaker 00:
We don't concede it applies to the first issue.

[00:06:09] Speaker 00:
Let's just, taking your Honor's question,

[00:06:11] Speaker 00:
The Supreme Court has answered that directly in Rosales Mireles, to some degree also in Molina Martinez, but certainly in Rosales Mireles.

[00:06:20] Speaker 00:
And I'll just give the court the quotes that I think control.

[00:06:23] Speaker 00:
The first one is, quote, the court, talking about the US Supreme Court, repeatedly has reversed judgments for plain error on the basis of inadvertent or unintentional errors of the parties below.

[00:06:34] Speaker 00:
The court goes on to say, as a practical matter, quote, any amount of actual jail time is significant and has exceptionally severe consequences for the incarcerated individual.

[00:06:46] Speaker 00:
And here we go.

[00:06:47] Speaker 00:
The risk, quote, the risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain guidelines error.

[00:07:00] Speaker 00:
Moreover, the mere fact the defendant's sentence falls within the corrected guidelines range does not preserve the fairness, integrity, or public reputation of the proceedings.

[00:07:10] Speaker 00:
In other words, when there's an error, whether it be in the sentencing range in terms of the guidelines or in the sentencing range in terms of the minimum to mandatory maximum, we know the judge has to start with that as the sentencing judge, as the district judge.

[00:07:28] Speaker 00:
And so any time there's an error, even if the ultimate sentence falls in the correct range under Molina Martinez and Rosales Morelis, it satisfies plain error.

[00:07:38] Speaker 02:
It seems like if we adopt your position, the plain error, you're really changing the plain error analysis.

[00:07:43] Speaker 02:
Any error will have to reverse.

[00:07:45] Speaker 00:
Well, I mean, that's what the Supreme Court says.

[00:07:47] Speaker 02:
But here, I mean, the judge has specified why.

[00:07:50] Speaker 02:
He didn't say it was because of the minimum.

[00:07:51] Speaker 02:
He said incredibly violent crime involved, including murder.

[00:07:56] Speaker 02:
I mean, he's not charged with it, but in connection with the drug offense.

[00:07:59] Speaker 02:
And he lied at trial.

[00:08:00] Speaker 02:
I mean, it seems like we can figure out here why the judge gave a 25-year sentence.

[00:08:06] Speaker 00:
Well, I mean, Rosales Marella specifically addresses your honest point.

[00:08:11] Speaker 00:
And they say, yeah, because of our decision here, it's going to essentially be a presumption that it satisfies plain error.

[00:08:18] Speaker 00:
in many, many cases when the judge has the wrong sentencing range.

[00:08:22] Speaker 00:
But again, Your Honor, here's what my real response, getting down to the reality of the law is.

[00:08:30] Speaker 00:
Remember the first time around the judge went through the 3553 factors and he said, I wouldn't give a lower sentence even if I could.

[00:08:38] Speaker 00:
And we argued the graves won.

[00:08:41] Speaker 00:
The government yelled and screamed about that for pages.

[00:08:44] Speaker 00:
Don't send it back.

[00:08:45] Speaker 00:
There's no need.

[00:08:46] Speaker 00:
It's harmless beyond any shadow of a doubt because the district court told this court it wouldn't do it.

[00:08:51] Speaker 00:
What happened on remand?

[00:08:54] Speaker 00:
I know this judge for a long time.

[00:08:56] Speaker 00:
If this court tells this judge that you were wrong about the mandatory minimum and you were wrong about acceptance of responsibility, there is a real chance.

[00:09:05] Speaker 00:
It was something like the total transcript pages were something like 35.

[00:09:10] Speaker 00:
pages for the resentencing.

[00:09:12] Speaker 00:
This guy's doing 25 years.

[00:09:14] Speaker 00:
That's why I started with it.

[00:09:16] Speaker 00:
How sure do we want to be as a system?

[00:09:18] Speaker 04:
So did the district judge on resentencing say something that leads you to believe?

[00:09:22] Speaker 04:
I understand there are a lot of pages.

[00:09:23] Speaker 04:
So what did the district judge say that might give you a reason to hope?

[00:09:27] Speaker 00:
OK.

[00:09:28] Speaker 00:
Great question, Your Honor.

[00:09:30] Speaker 00:
On two occasions, the district court, at the beginning and right after calculating the guidelines, the district court twice mentioned the mandatory minimum.

[00:09:39] Speaker 00:
I don't know about, Your Honors, but I don't tend to mention things unless they're in my head.

[00:09:45] Speaker 00:
So there is at least some evidence in the record, more than in other cases of this court, that the court did have the mandatory minimum in mind.

[00:09:52] Speaker 00:
We don't know.

[00:09:53] Speaker 00:
We don't have a crystal ball.

[00:09:54] Speaker 00:
Maybe that Judge Sabrah thought 10 years above the mandatory minimum is the sentence I think is right.

[00:10:01] Speaker 00:
That would get you there.

[00:10:02] Speaker 00:
I don't know.

[00:10:03] Speaker 00:
But he said that.

[00:10:06] Speaker 00:
He also didn't calculate the guidelines correctly, excuse me.

[00:10:10] Speaker 00:
And that's a major error.

[00:10:12] Speaker 04:
That's a separate question.

[00:10:13] Speaker 00:
That's a separate question, and we don't have time for it.

[00:10:15] Speaker 00:
But I think both of those things, and given the gravity of the circumstances, and the fact that we're just asking for a limited remand for resentencing, not a new trial, all militates in favor of sending this case back.

[00:10:30] Speaker 00:
Thank you, Your Honor.

[00:10:31] Speaker 01:
Thank you, Counsel.

[00:10:39] Speaker 03:
Good morning.

[00:10:39] Speaker 03:
May it please the court.

[00:10:41] Speaker 03:
Daniel Green for the United States.

[00:10:43] Speaker 03:
So if I may, I'd like to begin with the appellant's Cunningham argument.

[00:10:48] Speaker 03:
If the court reaches the substance of this argument, it should conclude that it lacks merit, because the statute at issue in Cunningham is no part of the court's analysis in this case.

[00:10:59] Speaker 03:
And I'd like to actually begin with a question that you raised, Your Honor.

[00:11:04] Speaker 03:
that Cunningham became important only in the reply brief.

[00:11:08] Speaker 03:
Could you address the merits rather than the timing for the moment?

[00:11:11] Speaker 03:
Absolutely, Your Honor.

[00:11:12] Speaker 03:
So to begin, we need to start with Rodriguez 2.

[00:11:16] Speaker 03:
And Rodriguez 2 stands for the principle that when determining whether a prior conviction meets the 10-year element of 924E2, the scope of the court's review is very limited.

[00:11:26] Speaker 03:
It looks at the statute of conviction and any applicable recidivist enhancement.

[00:11:32] Speaker 03:
In limiting the review to just these two considerations, the court specifically excluded from its analysis or from what the court should look to any other sentencing statutes that may result in a lower sentence, even if those sentencing statutes are mandatory.

[00:11:48] Speaker 03:
and also the actual sentence that the defendant received.

[00:11:53] Speaker 03:
In point of fact, Mr. Rodriguez was sentenced to 48 months, and yet the Supreme Court determined that his conviction satisfied the 10-year element of 924E2.

[00:12:04] Speaker 03:
Since then, this court has called this procedure, quote, a mechanistic examination of the highest possible... You know, you're so far losing me.

[00:12:14] Speaker 04:
As I understand Rodriguez, it says it can be doubled based on recidivism.

[00:12:18] Speaker 04:
Correct, Your Honor.

[00:12:19] Speaker 04:
So the question is, what's doubled?

[00:12:21] Speaker 04:
Cunningham tells me that the middle range gets doubled, the middle sentence gets doubled, not the maximum.

[00:12:27] Speaker 04:
What's wrong with that analysis?

[00:12:29] Speaker 03:
Respectfully, we disagree with the court's reading of Cunningham.

[00:12:33] Speaker 03:
What Cunningham says is that the statutory max for Apprendi purposes is the middle term in California, but Cunningham itself provides ways that district court or trial courts could go above the middle term.

[00:12:47] Speaker 03:
by finding facts established beyond reasonable doubt by a jury or stipulated to by a defendant.

[00:12:52] Speaker 03:
So I think there's a little bit of conflation here by the appellant in picking the term statutory maximum from Cunningham and meaning that to apply to the absolute statutory maximum

[00:13:04] Speaker 03:
that Mr. Graves could have received for his 11352.

[00:13:08] Speaker 04:
So tell me again how Cunningham leaves room to get away from, in this case, to get away from middle being four, so it was only eight.

[00:13:17] Speaker 03:
So we agree with the appellant that Mr. Graves was only facing an eight-year sentence for his 11352 conviction.

[00:13:25] Speaker 03:
But what Cunningham says is that the upper term could still be applied in other cases because judges could rely on facts found beyond a reasonable doubt to a jury or stipulated to by a defendant.

[00:13:38] Speaker 01:
I'm sorry, I'm very confused right now, because I thought I heard you say that in this particular case, let's not deal with any theoretical.

[00:13:47] Speaker 01:
I disagree with you in your reading of Cunningham, but for purposes of the argument, let's just apply Cunningham to the facts of this particular case.

[00:13:54] Speaker 01:
Did you say that under Cunningham, for Mr. Graves' case, it would be the middle term doubled, which is eight years?

[00:14:01] Speaker 03:
Yes, Your Honor.

[00:14:02] Speaker 01:
Right, so that would mean a 10-year statutory

[00:14:06] Speaker 01:
minimum instead of 15.

[00:14:09] Speaker 01:
Am I right?

[00:14:10] Speaker 01:
That's how I was looking at this case, and I understand your argument that Cunningham may leave room for some other cases, but I'm trying to figure out where you are with Mr. Graves' case and whether the district court got it correct when he said it's the 15 year instead of the 10.

[00:14:26] Speaker 03:
So we believe the district court did get it correct, as did the appellant and the government.

[00:14:31] Speaker 03:
Okay, then explain to me how that's possible under Cunningham.

[00:14:37] Speaker 03:
Cunningham and Rodriguez to address different questions.

[00:14:40] Speaker 03:
I think that's where maybe the breakdown and my failure to communicate that to you is happening.

[00:14:46] Speaker 03:
Cunningham is addressed with, is, tells trial courts what they need to do to go to the upper term.

[00:14:54] Speaker 03:
It says that for the purposes of Sixth Amendment scrutiny, the statutory maximum under Apprendi is the middle term in California.

[00:15:01] Speaker 03:
Rodriguez, too, is asking a different question.

[00:15:04] Speaker 03:
It's asking the question of what is the maximum term the legislature assigned to this sentence based on looking at the statute of conviction and any applicable recidivist enhancement.

[00:15:15] Speaker 03:
And for what it's worth, we looked for cases citing both Cunningham and Rodriguez, and there's cases cited in Cunningham, Apprendi, and Blakely, and we weren't able to find any cases showing that they were cited in the same case, showing that there's no relation between these two.

[00:15:33] Speaker 03:
And it's our position that they do address different issues.

[00:15:41] Speaker 03:
The statute at issue in Cunningham, 1170B, is one of these mandatory sentencing statutes that the Supreme Court... Remind me, was his state court conviction by way of a plea?

[00:15:52] Speaker 03:
It was a plea agreement, Your Honor.

[00:15:54] Speaker 01:
Were there any factual findings that would have triggered the upper term?

[00:16:00] Speaker 01:
There were no factual findings that would trigger the upper term, but some of the things... Or stipulation, which is the other area you said we could go to the upper term under Cunningham.

[00:16:08] Speaker 03:
there were no stipulations and no facts found by a jury in that case.

[00:16:14] Speaker 03:
So the trial judge appropriately went with the middle term in that case.

[00:16:20] Speaker 03:
But the question for the court here is under Rodriguez 2, what was the maximum possible term?

[00:16:24] Speaker 03:
And that's 10 years.

[00:16:26] Speaker 03:
And it also bears noting that Cunningham didn't strike down upper term sentences.

[00:16:31] Speaker 03:
Upper term sentences could be upheld post Cunningham, and in fact,

[00:16:36] Speaker 03:
Mr. Cunningham was sentenced to an upper term sentence, went to the Supreme Court, got the decision, and that sentence was reimposed post Cunningham, and it was upheld on review.

[00:16:48] Speaker 01:
If we don't agree with your reading of Cunningham, should this case go back?

[00:16:53] Speaker 03:
No, Your Honor, because the third prong of plain error review would not be met.

[00:16:58] Speaker 03:
And I believe this goes to the question that you asked, Your Honor.

[00:17:02] Speaker 03:
In addition to the district court statements, I want to highlight for the court something that the appellant said during sentencing, and this is at 14 and 15 of the excerpts of record, and I'm quoting here.

[00:17:14] Speaker 03:
So I would ask for 15.

[00:17:16] Speaker 03:
I know that is the minimum mandatory.

[00:17:19] Speaker 03:
I know that is not realistic for the court, given everything in this case.

[00:17:22] Speaker 03:
And so what the court can take from that statement is even the appellant knew that 15 years was nowhere near what he was going to get in this case.

[00:17:30] Speaker 04:
So even if... Well, but that doesn't mean that it's necessarily going to be 25.

[00:17:35] Speaker 03:
That's correct.

[00:17:39] Speaker 03:
this statement establishes that the appellant knew that it wasn't going to be 15 years.

[00:17:45] Speaker 04:
And if it wasn't going to be 15 years, then it's certainly... But that doesn't help you a bit if what we're working on at the moment is trying to figure out what the district judge might do if we send it back and the mandatory minimum is no longer 15.

[00:17:56] Speaker 04:
You say that it's got to be more than 15 as conceded by the appellant.

[00:18:02] Speaker 04:
Well, 25 is a lot more than 15.

[00:18:05] Speaker 04:
So I don't think that what you just read gets you where you need to get.

[00:18:09] Speaker 03:
Well, so there's no reason in the government's view to think that the district court is going to reach a different sentence based on the same record.

[00:18:18] Speaker 03:
I understand the argument is this court remanded and the district court lowered its sentence to 25 years.

[00:18:26] Speaker 01:
It seems somewhat speculative to assume that the district court

[00:18:31] Speaker 01:
wouldn't view the 10-year statutory minimum and the 15-year as being completely irrelevant, right?

[00:18:39] Speaker 01:
There's no indication in the record that would tell us that it wouldn't make a difference in the district court's mind, is there?

[00:18:46] Speaker 03:
Well, I respectfully disagree with that, Your Honor.

[00:18:48] Speaker 03:
I do believe the record supports that, because the district judge did exactly what this court and the Supreme Court has told it it should do.

[00:18:53] Speaker 03:
It started with the guidelines, and then it varied down.

[00:18:56] Speaker 03:
At no point did it do like the district judge in Mejia Pimentel, for example, say, you know, the mandatory minimum here is 15, so I'm going to sentence you to X. It did exactly what the cases from this court and the Supreme Court require it to do during sentencing.

[00:19:11] Speaker 03:
And it varied down from the low end of the guidelines range.

[00:19:14] Speaker 03:
And in doing that, it considered the mitigating factors.

[00:19:16] Speaker 03:
And it also considered the aggravating factors, what the judge referred to as the parade of horribles, to which I believe Your Honor was referring, and also the fact that the appellant lied at trial.

[00:19:28] Speaker 03:
And based on this record, excuse me, based on the case law, the analysis for the court is simply

[00:19:38] Speaker 03:
going back and assuming that the mandatory minimum was 10 years where the district court have reached a different decision.

[00:19:43] Speaker 03:
That's really what the third prong of plain error review requires.

[00:19:46] Speaker 03:
And we submit that on this record that there's nothing to indicate that the mandatory minimum played a role in the ultimate sentence that the district judge handed down.

[00:20:02] Speaker 03:
So I see here that I'm about out of time.

[00:20:04] Speaker 03:
So unless the court has any further questions, the government will submit and will ask you to affirm the sentence.

[00:20:10] Speaker 01:
All right.

[00:20:10] Speaker 01:
Thank you very much, counsel, to both sides for your argument today.

[00:20:13] Speaker 01:
The matter submitted.