[00:00:05] Speaker 04:
Good morning, Your Honors, and may it please the Court, Dale Ogden for Roberto Yepez.

[00:00:09] Speaker 04:
I'll try to reserve two minutes of my time for rebuttal, and I'll watch my clock.

[00:00:14] Speaker 04:
Mr. Yepez sought compassionate release, principally citing a sentence he served in excess of a sentence in court's intent.

[00:00:21] Speaker 04:
But the district court below found that this was not the type of thing that compassionate release could remedy, rather,

[00:00:27] Speaker 04:
he had to do so under a 2241 petition.

[00:00:31] Speaker 04:
That's wrong under this court's decisions in Chen and Roper and its precursor, Aruta.

[00:00:38] Speaker 04:
At this point, the issue appears to be mootness, specifically whether or not the supervised release or the compassionate release statute can reduce supervised release.

[00:00:49] Speaker 04:
So I'll turn to that unless the court would like to direct me elsewhere.

[00:00:52] Speaker 03:
Well, counsel, is this the correct vehicle to use in modifying the supervised release?

[00:00:57] Speaker 03:
And couldn't Mr. Yeppes at any time go back to the district court under Section 3583?

[00:01:02] Speaker 03:
I think it's E. I'm not sure.

[00:01:08] Speaker 03:
I can't read my own writing.

[00:01:10] Speaker 03:
C, maybe.

[00:01:11] Speaker 03:
And go back and just make a motion to modify a supervised release based on the fact that he's previously been released and is eligible for that.

[00:01:21] Speaker 04:
At a certain point, Your Honor, he could do that.

[00:01:25] Speaker 04:
You do, I believe, a statute requires that you wait one year.

[00:01:28] Speaker 04:
Mr. Yepes is not— Isn't there a provision where you don't have to wait a year?

[00:01:32] Speaker 03:
There's two provisions, right?

[00:01:37] Speaker 04:
There are numerous provisions.

[00:01:38] Speaker 02:
I'm not from— There's one that requires the year, and then there's the other one that says you can make a motion for a reduction in conditions.

[00:01:47] Speaker 02:
which I think has been interpreted to also allow a reduction in term.

[00:01:52] Speaker 02:
But in any case, he's only a few weeks away from hitting the year.

[00:01:58] Speaker 04:
I believe it's going to be the end of March.

[00:02:02] Speaker 04:
And I understand the concern, Your Honor.

[00:02:04] Speaker 04:
I think this sort of echoes something that the government has raised in different contexts that there are other vehicles for this request.

[00:02:10] Speaker 04:
It's 2255, 2241, that type of thing.

[00:02:13] Speaker 04:
But this court has rejected those arguments in Chen and Roper is, I think, a good example rejecting that argument.

[00:02:21] Speaker 04:
Just because Congress has provided one avenue of relief does not exclude other statutes from that avenue of relief.

[00:02:27] Speaker 00:
The problem is it's very odd to pursue a claim for compassionate release when he is already released.

[00:02:36] Speaker 00:
So the other cases

[00:02:38] Speaker 00:
said you could maybe make a compassionate, a release argument in another vehicle that's also about release.

[00:02:45] Speaker 00:
I mean, habeas would also be about release, but here you're trying to use something about release to deal with something that's about supervised, it's called release, but it's not really, it's after release, right?

[00:02:56] Speaker 00:
So there's a mismatch here that I don't think those other cases had.

[00:03:00] Speaker 04:
Well, I think part of the problem is we colloquially say compassionate release that I mean it's it's reducing terms right so and I think this this comes directly into what both the Second Circuit and the Seventh Circuit have held in chestnut and Von Vader that

[00:03:17] Speaker 04:
the compassionate release statute could reduce supervised release.

[00:03:21] Speaker 00:
I mean, the compassionate release could reduce a term in the sense that like if there's a health reason that you don't want someone in a prison, you might send them home and have some other kind of sentence, right?

[00:03:33] Speaker 00:
But that's not the concern here, right?

[00:03:35] Speaker 00:
The concern is more about, it's not about health or the conditions of the prison or anything that would lead to the release.

[00:03:42] Speaker 00:
It's about some

[00:03:44] Speaker 00:
calculation and at this point, he's out anyway.

[00:03:47] Speaker 00:
So this mootness thing seems very prominent.

[00:03:50] Speaker 04:
Well, and I think that's precisely why it's not moot in a way is because of this, when you're talking about sentencing, sentencings that were served in excess of what the court wanted or in excess of the correct guidelines.

[00:04:03] Speaker 04:
In every other context, this court has said that's not moot, right?

[00:04:07] Speaker 04:
If you over-serve, if there's an incorrect guidelines calculation, for example,

[00:04:10] Speaker 04:
and you over-serve that, those arguments can still result in a lower SR term.

[00:04:16] Speaker 00:
So if there's a legal argument that this really was wrong, I think you have a problem because it should have been brought in habeas in a different jurisdiction.

[00:04:23] Speaker 00:
If you have just an argument that equitably this wasn't really what was meant and so there's an equitable problem, it seems like that could be maybe a compassionate release argument, but he's already released, so now go bring that equitable argument in just any time for the supervised release.

[00:04:40] Speaker 04:
I understand the court's concerns.

[00:04:41] Speaker 04:
I just think that just because there's two vehicles of relief, Roper does a good job of explaining this as to why you don't need to go the habeas route.

[00:04:50] Speaker 04:
But just because Congress has created more than one avenue of relief doesn't mean that it's precluded in one setting.

[00:04:58] Speaker 00:
I guess I'm confused about why you care.

[00:05:00] Speaker 00:
Why is it better to be standing here today making this argument about compassionate release when you could instead go seek a change of a supervised release separately?

[00:05:11] Speaker 04:
Well, I understand the practical concern.

[00:05:14] Speaker 04:
Practically speaking, in early SR revocation or early SR termination requests, I think usually what disher courts find themselves asking are different questions.

[00:05:25] Speaker 04:
I think the legal standard is something about the conduct on SR.

[00:05:30] Speaker 04:
Practically speaking, courts are concerned with practical things like, does the defendant have a job that makes reporting on SR difficult?

[00:05:40] Speaker 04:
things like that usually i think we're asking ourselves fundamentally different questions in that context it's not that we can no limit right there's no limit on supervised release that says you can't make this are no there's not and i understand the court's concerned but i'd i would just admit that just because there's different avenues of relief doesn't mean that this is inappropriate i guess i still not is there a reason why it is better for your client for you to be here today saying it this way rather than district court today saying it the other way uh... well i mean

[00:06:09] Speaker 04:
My first argument would have been the one-year provision.

[00:06:13] Speaker 04:
I understand that the court's mentioning that there are cases interpreting the corollary statute that might not have that limitation.

[00:06:22] Speaker 04:
Obviously, at the time this is filed, he did have time remaining on a sentence.

[00:06:26] Speaker 04:
And at the time I filed the opening brief, that was also true.

[00:06:30] Speaker 03:
At this point, it- He originally filed pro se.

[00:06:35] Speaker 04:
In the district court, correct.

[00:06:36] Speaker 03:
District court.

[00:06:37] Speaker 03:
So that's why, and originally when he filed, he was in prison.

[00:06:42] Speaker 04:
Correct.

[00:06:42] Speaker 03:
Serving his sentence.

[00:06:44] Speaker 04:
Right.

[00:06:44] Speaker 03:
And that's when I filed the... So the transfer, the district court's transfer saying you should do a habeas in the district where you're serving your sentence wasn't wrong, right?

[00:06:58] Speaker 04:
I mean, I think that was legally incorrect under Chen and Roper.

[00:07:00] Speaker 04:
OK.

[00:07:02] Speaker 03:
That's what's all moot now.

[00:07:06] Speaker 04:
Well, I don't think it's mood for the same.

[00:07:12] Speaker 04:
I think if this court were to find this mood in this context, the court is going to be in tension with the Second and Seventh Circuit cases that I cite.

[00:07:20] Speaker 04:
Chestnut in the Second Circuit talks about, you know, the normal rule that this court applies in other contexts that

[00:07:26] Speaker 04:
arguments for a shorter overall sentence could result in the court lowering the SR term.

[00:07:33] Speaker 04:
I think the Seventh Circuit in Von Vader is even clearer, because the Seventh Circuit there is holding the compassionate release motion, even though that defendant had completed that term.

[00:07:44] Speaker 04:
There was a separate term that wasn't affected.

[00:07:47] Speaker 04:
But even though he had completed that term, the case wasn't moved.

[00:07:50] Speaker 04:
So that was necessary to the holding.

[00:07:53] Speaker 04:
So I think holding that from this court, which this court never has, would

[00:07:56] Speaker 04:
would sort of create a non-existent circuit split.

[00:08:01] Speaker 03:
Do you want to reserve your time?

[00:08:02] Speaker 04:
Yes.

[00:08:02] Speaker 04:
Thank you, Your Honors.

[00:08:14] Speaker 01:
Good morning, Your Honors.

[00:08:15] Speaker 01:
David Friedman from the United States.

[00:08:17] Speaker 01:
May it please the Court?

[00:08:19] Speaker 01:
I agree that the central question here is mootness.

[00:08:22] Speaker 01:
In our view, this is relatively simple.

[00:08:24] Speaker 01:
3582 C1A does not allow a reduction in the supervised release term.

[00:08:29] Speaker 01:
It says you can reduce a term of imprisonment, not a term of supervised release.

[00:08:32] Speaker 01:
And there's another vehicle that defendant can use to make this exact same claim.

[00:08:37] Speaker 01:
He can pursue an early termination motion.

[00:08:41] Speaker 01:
Under 3583 E1, he will be eligible, I believe,

[00:08:45] Speaker 01:
On March 7, he was released March 7, 2023.

[00:08:47] Speaker 01:
The standard is, is it in the interest of justice?

[00:08:50] Speaker 01:
I think there'd be nothing preventing him from making this exact same equitable argument.

[00:08:55] Speaker 01:
There's also a second provision 3583E2, which allows you to reduce or modify your conditions that supervise release.

[00:09:03] Speaker 01:
I think he could move for that now.

[00:09:05] Speaker 01:
And at a minimum, that would allow him to, if he wanted to ask to remove all his conditions, there would be nothing that would stop him.

[00:09:11] Speaker 01:
So.

[00:09:12] Speaker 03:
How do you respond to the opposing counsel's argument that if we were to rule that he couldn't challenge the length of his supervised release under the compassionate release provision,

[00:09:30] Speaker 03:
we would be in tension with the Seventh Circuit and the Second Circuit.

[00:09:35] Speaker 01:
So I agree there's a little bit of tension because both the Second Circuit and the Seventh Circuit seem to just assume you can use 3582C1 to reduce the impassioned release term.

[00:09:46] Speaker 01:
I think if the court looks at those opinions, there's no real analysis of the issue.

[00:09:49] Speaker 01:
There's no analysis of the text.

[00:09:51] Speaker 01:
It's just, it's very, it's kind of one sentence in each opinion.

[00:09:54] Speaker 01:
We assume that.

[00:09:55] Speaker 01:
The Second Circuit ended up dismissing that particular petition as moot at the Seventh Circuit, I think, affirmed on the merits.

[00:10:02] Speaker 01:
So I think if those courts were confronted with this issue, I'm not sure they would reach the same results.

[00:10:08] Speaker 01:
And again, I think the only really reasoned decision I've seen on this issue is the Merrick unpublished disposition from this court.

[00:10:16] Speaker 01:
which gives several, I think, very persuasive reasons why you can't use 3582C1 to reduce the term of surprise release, you know, going from the title of the statute, which is about an imprisonment,

[00:10:26] Speaker 01:
The fact that it refers to a reduction in terms of imprisonment, the fact that there's another vehicle.

[00:10:31] Speaker 01:
I think another consideration here is there's an exhaustion requirement.

[00:10:36] Speaker 01:
And while someone like Mr. Yepez was able to exhaust, if someone in the future was out of custody and sought to reduce their term of surprise release, there would be no warden to send the request to.

[00:10:45] Speaker 01:
And that's something this court found meaningful in Fauer and also Pinero, which was, Pinero was actually a case where someone was out of custody.

[00:10:53] Speaker 01:
And this court said you can't use compassionate release.

[00:10:56] Speaker 01:
And I agree with Judge Friedland.

[00:10:58] Speaker 01:
There's no real prejudice to dismissing this claim or, you know, affirming it.

[00:11:03] Speaker 01:
There's another vehicle available to defend it.

[00:11:06] Speaker 01:
From what I can tell, it seems like a lesser standard.

[00:11:08] Speaker 01:
He doesn't have to show extraordinary circumstances, exceptional circumstances.

[00:11:12] Speaker 01:
He can just show it's in the interest of justice.

[00:11:15] Speaker 01:
And there's no reason to sort of contort the language of 3582C1.

[00:11:18] Speaker 01:
This isn't like Chen, where if

[00:11:21] Speaker 01:
You know, the defendant can't get relief.

[00:11:23] Speaker 01:
He's out of luck.

[00:11:23] Speaker 01:
He's going to be in prison.

[00:11:24] Speaker 01:
He has to hope for clemency to get out of this long sentence.

[00:11:27] Speaker 01:
There's another vehicle available.

[00:11:29] Speaker 01:
We don't, we don't need the quote safety valve of compassionate release here.

[00:11:34] Speaker 01:
Um, so for all of those reasons, we do think the claim here is moot.

[00:11:38] Speaker 01:
If you'd like me to address the merits, I'm happy to do that.

[00:11:42] Speaker 03:
Any further questions?

[00:11:46] Speaker 03:
No.

[00:11:47] Speaker 01:
Okay.

[00:11:47] Speaker 01:
All right.

[00:11:48] Speaker 01:
Thank you.

[00:11:48] Speaker 01:
Then I'll submit on our briefing.

[00:11:49] Speaker 03:
Thank you very much.

[00:11:55] Speaker 04:
Thank you, Your Honors.

[00:11:58] Speaker 04:
I think what my friend on the other side almost admitted was that that tension would be a circuit split, right, with the second and seventh circuits.

[00:12:09] Speaker 00:
Cases really don't have reasoning, though, so it's not like we can say, oh, we're so persuaded by how they thought about it, right?

[00:12:15] Speaker 04:
They are brief.

[00:12:18] Speaker 04:
Most of the reasoning in this context is brief, but that doesn't mean it's not precedential.

[00:12:25] Speaker 00:
But we're not bound by them.

[00:12:26] Speaker 00:
I mean, we can be persuaded to agree with them, but they didn't really give us anything to be persuaded by.

[00:12:31] Speaker 04:
Well, I understand the concern.

[00:12:33] Speaker 04:
I suppose my only point is that that does create the circuit split in the first instance, especially because I know we can debate over how necessary the Second Circuit's reasoning was to its decision.

[00:12:47] Speaker 04:
But the Seventh Circuit's case is pretty clear that that's part of the holding.

[00:12:49] Speaker 04:
That's why that case wasn't moved.

[00:12:52] Speaker 00:
It seems like, if I'm understanding the claims there correctly, they were more of the nature like there really was a legal error here.

[00:13:00] Speaker 00:
And I think your stronger argument is equitably something has gone wrong, not really that there's a legal error.

[00:13:06] Speaker 00:
So I'm not sure those cases are really on all fours.

[00:13:09] Speaker 04:
Well, and I do agree that our core argument is this equitable idea of serving a sentence beyond what the court meant.

[00:13:19] Speaker 04:
And that's, in a way, sort of the core of a lot of these motions, right?

[00:13:22] Speaker 04:
In Chen was stacked 924C sentences, which was correct under then existing law.

[00:13:28] Speaker 04:
Or Roper was an incorrect career offender designation.

[00:13:31] Speaker 04:
All those resulted, even though they were correct at the time or something, all those resulted in excessively long sentences.

[00:13:39] Speaker 04:
at least from the district court's perspective.

[00:13:42] Speaker 04:
And what this court has done is remand for the court to consider those reasons in the first instance.

[00:13:48] Speaker 04:
We're not asking this court to find anything extraordinary and compelling.

[00:13:51] Speaker 04:
We're just saying that's the court's call to make in the first instance, and the court never did so here.

[00:13:59] Speaker 04:
So unless the court has any other questions, I'd ask to reverse and remand to reconsider.

[00:14:04] Speaker 03:
All right, thank you very much, counsel.