[00:00:00] Speaker 02:
States versus Whitney.

[00:00:01] Speaker 02:
And I believe Ms.

[00:00:05] Speaker 02:
Clary is first, right?

[00:00:06] Speaker 00:
Thank you, Your Honor, yes.

[00:00:12] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:15] Speaker 00:
Amy Clary on behalf of Stephon Whitney, I'll reserve two minutes for my rebuttal and will watch my clock.

[00:00:20] Speaker 02:
Thank you.

[00:00:22] Speaker 00:
The parties in this case have already stipulated that two matters need to be remanded for purposes of supervision under Nishida and Montoya.

[00:00:29] Speaker 00:
So this morning, unless the court directs me otherwise, I would like to address Mr. Whitney's loitering conviction that was used to increase his criminal history and the four-level enhancement used to increase his offense level.

[00:00:44] Speaker 00:
With regard to the loitering conviction, it added two criminal history points, changing from nine to 11 points

[00:00:50] Speaker 00:
from level 4 to level 5.

[00:00:53] Speaker 00:
In 2017, Mr. Whitney was convicted of a misdemeanor drug offense for which he served 60 days.

[00:01:02] Speaker 00:
Prior to sentencing in his federal case, the state court amended that judgment, that conviction, and that plea and changed it to a loitering conviction.

[00:01:14] Speaker 00:
Under the guidelines, loitering does not count regardless, and the government doesn't dispute this.

[00:01:22] Speaker 00:
When you look at the docket from the state court case, which is at ER 189 and 190, there is no reference to the prior drug offense at all.

[00:01:34] Speaker 00:
The only references going back to 2017 are to the loitering conviction.

[00:01:39] Speaker 04:
Let me give you a hypothetical.

[00:01:41] Speaker 00:
Absolutely.

[00:01:42] Speaker 04:
Let's say there was a state that decided that

[00:01:47] Speaker 04:
not only does it want to get rid of misdemeanor drug convictions for its citizens it's really unhappy that these count criminal history points in federal cases and they pass a law that says anybody

[00:02:04] Speaker 04:
who has been convicted of a misdemeanor drug offense, automatically upon motion, the courts can turn these into loitering convictions because we really don't want these counted anymore in federal sentencing proceedings for somebody who's later convicted of a federal crime.

[00:02:27] Speaker 04:
Would that be the same as the situation here or is there a difference?

[00:02:33] Speaker 00:
I don't think that there's a difference, and I have three reasons why.

[00:02:38] Speaker 00:
Number one, the Sentencing Commission was aware that states do have different mechanisms for changing convictions.

[00:02:45] Speaker 00:
Number two, in Alba Flores, although the court stated that the situation there, which dealt with the status offense, being changed,

[00:02:53] Speaker 00:
gave rise to a sort of gaming the system.

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But this court said that alone did not mean that the defendant could not succeed.

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It was just something that the court noticed.

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And number three, in United States versus Hayden, this court indicated that when there is a state statute from any state, to determine the actual effect of that,

[00:03:17] Speaker 00:
you look to the statute's language.

[00:03:21] Speaker 00:
So maybe there is a different underlying purpose for a state doing it, but this court's position is you look to see what the state statute actually does.

[00:03:31] Speaker 00:
If it gets rid of the conviction, as it does here with the Nevada statute, and I'll address in a second, then it doesn't count.

[00:03:39] Speaker 00:
Nevada statute 176.565 addresses clerical mistakes.

[00:03:45] Speaker 00:
Clerical mistakes can be fixed at any time.

[00:03:47] Speaker 00:
And that provision does not allow, unlike the California statutes addressed in Yepez and Alba Flores, does not allow courts to use that conviction at a later time.

[00:04:03] Speaker 00:
Additionally, unlike Yepes and Alba Flores, we're talking about the specific conviction being changed.

[00:04:10] Speaker 00:
We're not talking about someone changing their status at the time that they committed the federal offense.

[00:04:16] Speaker 00:
And I'll also note, in Alba Flores, the court noted

[00:04:19] Speaker 00:
that because the conviction there was changed to a minor infraction, the court indicated, yeah, it probably doesn't count, but it didn't change the result in that case because it was whether defendant was eligible for safety valve, which took him over the points level.

[00:04:34] Speaker 00:
So Judge Bennett, I understand the concern, but that's something for the Sentencing Commission to fix if it deems it something that needs to be fixed.

[00:04:42] Speaker 02:
What is the case that you would cite to us that most closely resembles this one?

[00:04:51] Speaker 02:
in terms of the sentencing.

[00:04:53] Speaker 02:
We've got sentencing guidelines of what the judge did.

[00:04:56] Speaker 02:
You're arguing that the state of Nevada essentially did away with part of what the judge used to calculate the sentence.

[00:05:04] Speaker 02:
Can you cite us to a case that you believe is on all fours with this one?

[00:05:07] Speaker 00:
I don't have a case on all fours.

[00:05:09] Speaker 00:
What I do have is this court's analysis of what they have looked at when it is not something that's appropriate.

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And again, I would refer to Hayden, which says you look at the statute and what's the effect of the conviction.

[00:05:26] Speaker 00:
Turning to the four-level enhancement.

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The four-level enhancement was applied in this case in part

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because of the firearm's proximity to the marijuana, to the ammunition, to the almost $5,000.

[00:05:47] Speaker 02:
But under... Counsel, let me ask you this.

[00:05:51] Speaker 02:
My reading in the record is that although the district court certainly took proximity into account, it didn't base its decision on that.

[00:05:58] Speaker 02:
It looked at the totality.

[00:06:00] Speaker 02:
But even if he had, how do you deal with our Parlor case?

[00:06:04] Speaker 00:
Certainly, Your Honor.

[00:06:06] Speaker 00:
Parlor says it necessarily applies.

[00:06:09] Speaker 00:
But Kaiser v. Wilkie, the Supreme Court, and as this court recognized in Castillo, Kaiser v. Wilkie affects the court's review of the commentary.

[00:06:21] Speaker 00:
And if the commentary, if the text is not ambiguous, as 2K2.1 v.

[00:06:27] Speaker 00:
6B is not, then you never get to the commentary.

[00:06:32] Speaker 00:
So this Kaiser necessarily is an intervening authority under Miller versus Gammie that negates that holding.

[00:06:42] Speaker 02:
So you're saying that the parlor is basically rendered nougatory by Miller versus Gammie?

[00:06:49] Speaker 00:
By Kaiser versus Wilkie.

[00:06:50] Speaker 02:
Yeah, I understand that, but it's by Kaiser.

[00:06:53] Speaker 02:
You think it's irreconcilable?

[00:06:54] Speaker 00:
I do, Your Honor, because the text of this enhancement is not ambiguous.

[00:07:01] Speaker 00:
You don't get to proximity without the commentary.

[00:07:05] Speaker 00:
But you can't get there under Kaiser because when the statute is clear, you full stop there.

[00:07:12] Speaker 00:
And proximity doesn't come into the equation.

[00:07:14] Speaker 00:
And granted, the district court's rationale at 21 and 22

[00:07:20] Speaker 00:
said the totality of the circumstances, but those circumstances also included proximity.

[00:07:26] Speaker 00:
We cannot be sure that the district court's taint of proximity, as the government urged it to do below, didn't affect the analysis.

[00:07:36] Speaker 02:
But with respect, he originally said, this is all my stuff.

[00:07:42] Speaker 02:
He said it.

[00:07:43] Speaker 02:
She initially said, that's his stuff.

[00:07:46] Speaker 02:
They changed their mind, apparently.

[00:07:48] Speaker 02:
But the reality is taking the totality of the circumstances into account.

[00:07:53] Speaker 02:
I'm not sure how you get around Parlor in this particular case.

[00:07:57] Speaker 02:
I don't know what the commentary does to change our analysis here.

[00:08:00] Speaker 02:
What am I missing?

[00:08:03] Speaker 00:
Parlor says, because the commentary says, you necessarily, when you have guns in close proximity to gun, guns in close proximity to drugs, you necessarily apply the enhancement.

[00:08:17] Speaker 00:
But Kaiser does not allow the court now to ever go to the commentary if the text of the enhancement itself is not ambiguous.

[00:08:25] Speaker 02:
But again, looking at the totality of the circumstances, the judge saw that he said, these are my things.

[00:08:32] Speaker 02:
She said those are his things.

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In the totality of the circumstances, proximity almost fades away.

[00:08:38] Speaker 02:
Those are his things.

[00:08:40] Speaker 02:
Why would the judge not be allowed to take that into account?

[00:08:44] Speaker 00:
I think in certain cases,

[00:08:46] Speaker 00:
the court could take into account as if it was an attempted murder and someone was trying to do something to maim someone and they had a gun in the hand.

[00:08:56] Speaker 00:
That's close proximity in connection with.

[00:09:01] Speaker 00:
We don't have the in connection with here absent the proximity and at the very least it taints the analysis.

[00:09:08] Speaker 04:
But going to Judge Smith's point, that's not what the judge said.

[00:09:13] Speaker 04:
The judge said after saying

[00:09:15] Speaker 04:
totality, the quantities, how the pot was stored, the baggies, the scale, the cash stashed with the handgun and the proximity in the small apartment all lead me to the conclusion that the defendant possessed in connection.

[00:09:32] Speaker 04:
As you know, the judge went through all these factors and as Judge Smith also said at 378 of the ER, all that belongs to me, everything.

[00:09:41] Speaker 04:
It's just hard for me to see

[00:09:43] Speaker 04:
how we can overturn this finding from the district court.

[00:09:47] Speaker 00:
Two points, your honors.

[00:09:48] Speaker 00:
One, Mr. Whitney explained that when he finally said those things were his, it was after the officer repeatedly threatened his fiancee with criminal charges, with child endowment charges.

[00:10:04] Speaker 00:
Putting that aside, so I challenge that part of it.

[00:10:07] Speaker 04:
But the judge took that into account, the judge said, although the defendant certainly has an exculpatory explanation for virtually every fact here, so the judge considered what you said and rejected it.

[00:10:20] Speaker 00:
But because the district court included proximity in its analysis,

[00:10:25] Speaker 00:
We cannot be sure that that did not have a pushing it over the limit that Kaiser now prohibits.

[00:10:34] Speaker 04:
So your view is essentially those are negative magic words?

[00:10:38] Speaker 00:
In this case, post-Kaiser, yes.

[00:10:41] Speaker 00:
because there was no actual proof of the guns being used in connection.

[00:10:46] Speaker 00:
We don't have drug sales.

[00:10:47] Speaker 00:
We don't have undercover buys.

[00:10:48] Speaker 00:
We don't have tally sheets.

[00:10:50] Speaker 00:
So you get there through an inference.

[00:10:53] Speaker 00:
That inference is based in part on proximity, which cannot be anymore.

[00:10:58] Speaker 02:
Okay.

[00:10:58] Speaker 02:
I think we have your argument.

[00:10:59] Speaker 02:
You're over time.

[00:11:00] Speaker 02:
Do either of my colleagues have additional questions?

[00:11:02] Speaker 03:
One question.

[00:11:03] Speaker 03:
With all these adjustments, what was the final guidelines range that was applicable?

[00:11:08] Speaker 00:
So he was 25 for his offense level, and he had 11 criminal history points, which put him in criminal history category five.

[00:11:21] Speaker 00:
Any change in this.

[00:11:22] Speaker 00:
So what was his final range?

[00:11:25] Speaker 00:
His final range was 100 to 120 months.

[00:11:27] Speaker 00:
And what sentence did he get?

[00:11:29] Speaker 00:
He received a variance down to 54 months.

[00:11:31] Speaker 03:
And what was the variance on what grounds?

[00:11:33] Speaker 00:
over-representation of criminal history, his prior lack of violence in this case, very tragic upbringing.

[00:11:45] Speaker 02:
Thank you very much.

[00:11:46] Speaker 02:
Let's hear from the government.

[00:11:51] Speaker 01:
Mr. Walkingshaw, is that correct?

[00:11:53] Speaker 01:
Yes, sir.

[00:11:56] Speaker 01:
Good morning.

[00:11:57] Speaker 01:
May it please the court.

[00:11:58] Speaker 01:
Peter Walkinshaw on behalf of the United States.

[00:12:00] Speaker 01:
With the court's permission, I'd like to take the two, unless the court has immediate questions, I'd like to take the issues raised by defense counsel in reverse order briefly touching on the Kisor issue.

[00:12:09] Speaker 01:
I'd like to first note that Kisor is not an intervening precedent.

[00:12:12] Speaker 01:
Kisor was decided in 2019 and Parler was decided in 2021.

[00:12:16] Speaker 01:
So the idea that it's an irreconcilable intervening precedent simply just doesn't wash in this case.

[00:12:24] Speaker 04:
But moreover,

[00:12:26] Speaker 04:
So if it's wrong, that can only be fixed by an in-bank court or the Supreme Court.

[00:12:32] Speaker 01:
I agree, Your Honor.

[00:12:32] Speaker 01:
But thankfully, in this case, it's not wrong.

[00:12:34] Speaker 01:
Keyser by no means precludes the conclusion that the district court reached in this case for two independent reasons.

[00:12:40] Speaker 01:
First, it's very clear from the record that the district court in this case took into account the totality of the circumstances.

[00:12:49] Speaker 01:
Now, while it's clearly precluded by parlor, the court

[00:12:56] Speaker 01:
Parler precludes the conclusion that mere proximity is not sufficient to establish that a gun was used in connection with another felony offense.

[00:13:05] Speaker 01:
But there really can't be any serious dispute that proximity is a important piece of circumstantial evidence that the district court took into account here and was entitled to take into account.

[00:13:16] Speaker 01:
The fact that the gun was found in the same room as a large amount of cash and about a half pound of marijuana, which is far more than can possibly bought in a Nevada dispensary at the time of the crime,

[00:13:28] Speaker 01:
plainly lends itself to the district court's conclusion that the gun was used in connection with, which is the language of the guidelines, in connection with the felony offense of marijuana distribution.

[00:13:40] Speaker 01:
And the guideline history has gone through in a brief.

[00:13:42] Speaker 01:
The application note makes it clear that the sentencing guideline was looking to encompass in its application note a language from the Supreme Court's decision in Smith versus United States, in which it construed a very similar phrase, in relation to.

[00:13:57] Speaker 01:
in the context of the 924C statute such that in relation to meant that it could further or could potentially further the relevant offense.

[00:14:09] Speaker 01:
Now it's clear in this case that the gun in the bedroom with the cash near the marijuana had the potential to further the drug trafficking offense by virtue of

[00:14:21] Speaker 01:
being a means to protect it from potential robbers or others looking to steal or rob the cash.

[00:14:32] Speaker 02:
Is it the government's position that in effect that the judge answered defense counsel's concerns by varying downwards substantially because of the over, if you will, overrepresentation of prior criminal conduct?

[00:14:48] Speaker 01:
It's certainly due with respect to the inclusion of the cocaine possession offense and the Failure to register as a felon offense your honor.

[00:14:57] Speaker 01:
I think the this court's precedence on Harmlessness with respect to guideline errors.

[00:15:02] Speaker 01:
We do think that the application of this particular guideline the four-level enhancement for use in connection with the felony offense is

[00:15:10] Speaker 01:
That is one that isn't really susceptible to a harmlessness analysis, but in the planar analysis, with respect to the aspects that were not raised below,

[00:15:26] Speaker 01:
there the defendant has the burden before this court of establishing some form of prejudice, i.e.

[00:15:30] Speaker 01:
that the outcome of the proceeding would have been different, which in this case means a different sentence.

[00:15:36] Speaker 01:
And in this case, it's just very hard to square the formal calculation of the guidelines with the sentence that the district court ultimately handed down.

[00:15:47] Speaker 02:
If I understand correctly, the government does agree that a limited remand is appropriate.

[00:15:52] Speaker 02:
Would you tell us specifically what

[00:15:55] Speaker 02:
The government agrees is the appropriate scope of the limited remand.

[00:16:00] Speaker 01:
So it would be to address the Nishida issue, which would be properly crafting a mental health supervised release condition, be the Montoya issue, which is this court's decision of Montoya requires a district court to orally pronounce all aspects of the sentence, including the standard conditions.

[00:16:20] Speaker 01:
a supervised release, which it did not do in this case, relying on prior precedent that was subsequently overruled in the intervening period.

[00:16:27] Speaker 03:
Would it be a remand to redo the supervised release conditions generally, including those, or just those issues?

[00:16:35] Speaker 03:
Or is the supervised release package of conditions unbundled?

[00:16:39] Speaker 01:
I believe, Your Honor, that strictly speaking, the remand that we've agreed to is to allow the court to orally pronounce, with respect to the Montoya issue, to consider and then orally pronounce the standard conditions of supervised release if it finds them appropriate.

[00:16:55] Speaker 01:
With respect to the Nishida issue, it does need to fashion a new condition, but the government does not agree that a wholesale revision of the defendant's supervised release conditions is appropriate here.

[00:17:07] Speaker 02:
So it's cabin from your perspective on the basis that you just indicated.

[00:17:11] Speaker 01:
I agree.

[00:17:11] Speaker 01:
And I believe that's what the parties agree to, Your Honor.

[00:17:15] Speaker 01:
very briefly on the cocaine conviction issue.

[00:17:18] Speaker 01:
I would just note that state law can't dictate how federal courts examine or determine a federal defendant's criminal history.

[00:17:24] Speaker 01:
So the fact that the Nevada statute says that it can't be used for any purpose really doesn't matter here.

[00:17:30] Speaker 01:
The question is, do the guidelines allow for the use of the prior conviction?

[00:17:37] Speaker 01:
And it's worth noting, I think, in this case, that the purpose of the guidelines is to give district judges accurate information

[00:17:45] Speaker 01:
about a defendant's criminal history, what their history and characteristics are like.

[00:17:49] Speaker 01:
It's clear in this case that the district court assessed all the relevant facts, both the fact that the defendant had been convicted of this offense, but also that it was expunged, and came to a reasonable sentence.

[00:18:04] Speaker 01:
So, I think in this case, Your Honor, it's clear that the guidelines properly take into account the fact that this conviction was sustained and ultimately was not expunged within the meeting of the guidelines, either under the commentary, which requires a factual or legal deficiency, which was not the case here and the defendant doesn't assert that it was,

[00:18:30] Speaker 01:
Or, without resort to the guidelines, if it is true that the term expunged is not ambiguous and susceptible to reasonable interpretation through the guideline commentary, then the conviction here simply was not expunged.

[00:18:45] Speaker 01:
It was altered and amended, but it remains in the defendant's remit.

[00:18:47] Speaker 01:
It remains extant.

[00:18:49] Speaker 02:
So from your perspective, the opposing counsel's argument that the state of Nevada essentially did away with the

[00:19:00] Speaker 02:
the one charge is irrelevant for purposes of sentencing.

[00:19:03] Speaker 02:
Is that correct?

[00:19:04] Speaker 01:
In these circumstances, yes, Your Honor.

[00:19:06] Speaker 01:
It's the same concern that this court referenced in Ypez.

[00:19:13] Speaker 01:
State courts simply can't game their prior sentencing decisions for purposes of altering federal sentencing considerations.

[00:19:23] Speaker 01:
I'm happy to answer any remaining questions from the court, but otherwise, I'd be happy to yield the time.

[00:19:27] Speaker 02:
Very well.

[00:19:28] Speaker 02:
Thank you for your time.

[00:19:29] Speaker 02:
And we've already given counsel an opportunity.

[00:19:32] Speaker 02:
We've answered questions.

[00:19:33] Speaker 02:
Any additional questions of sentencing defense counsel?

[00:19:36] Speaker 02:
Okay.

[00:19:36] Speaker 02:
I thank you both very much.

[00:19:37] Speaker 02:
We thank you for your argument.

[00:19:39] Speaker 02:
The case just argued, United States versus Whitney, is submitted.