[00:00:02] Speaker 01:
Thank you, Your Honor.

[00:00:02] Speaker 01:
May it please the Court.

[00:00:03] Speaker 01:
My name is Phil Brennan.

[00:00:05] Speaker 01:
I am here representing Mr. Thompson, who is the defendant and the appellant below.

[00:00:09] Speaker 01:
I would ask the Court that I be allowed three minutes of rebuttal time.

[00:00:14] Speaker 01:
I'm going to focus this morning on the second aspect of the appeal brief that we submitted, which is involving concurrency.

[00:00:22] Speaker 01:
The question in that brief is simply whether the district court erred in failing to rule one way or the other on whether the federal sentence should be concurrent or consecutive to the forthcoming and anticipated state court sentences.

[00:00:37] Speaker 01:
Now, to answer that question, we have to ask what is the standard of review.

[00:00:41] Speaker 01:
And in considering the standard of review, I think we should consider four facts that are undisputed.

[00:00:47] Speaker 01:
First, the defendant repeatedly asked the court to run the sentence concurrent, meaning run the federal sentence concurrent to the forthcoming state court sentences.

[00:00:56] Speaker 01:
Second, the district court initially said yes, or said it would consider that as a recommendation.

[00:01:02] Speaker 01:
In other words, it was inclined to follow our request.

[00:01:05] Speaker 01:
Third, when the court asked the prosecutor or the government what its view of was with regard to concurrency, the government said the court should remain silent.

[00:01:16] Speaker 01:
Fourth, immediately thereafter, the district court followed the government's recommendation and decided to remain silent on the issue.

[00:01:23] Speaker 01:
With that backdrop, we ask what is the standard of review?

[00:01:27] Speaker 01:
We maintain that the standard of review is de novo because there was a legal error.

[00:01:32] Speaker 01:
And in fact, it seems to be a confusion from the district court as to what precisely we were asking the court to do.

[00:01:39] Speaker 01:
And I asked this court to focus on the district court's use.

[00:01:42] Speaker 04:
So that sounds a little different than I understood your argument in the briefs.

[00:01:45] Speaker 04:
I understood your argument in the briefs to be that the district court didn't realize that it had authority to run them concurrently.

[00:01:54] Speaker 04:
But that's not exactly the way you were framing it this morning.

[00:01:56] Speaker 04:
In fact, what you said earlier this morning, I mean, it sounds like it was definitely before the district court.

[00:02:02] Speaker 04:
So is your position today that the district court didn't realize that it could run them concurrently, or that the district court had to run them, had to choose one way or the other?

[00:02:14] Speaker 04:
Do you think the district court could have done what it did here, assuming it made a decision, that it could have made a decision to not decide the issue?

[00:02:24] Speaker 01:
Is that allowed?

[00:02:25] Speaker 01:
I don't think so, Your Honor.

[00:02:26] Speaker 01:
I think if the court is going to decide it's not going to decide, I think it needs to run through the 3553 factors and explain why it's not deciding.

[00:02:34] Speaker 04:
So just to be clear, it could do that, though, you think.

[00:02:38] Speaker 04:
I understand that your position is that it didn't do it properly.

[00:02:41] Speaker 04:
But your position, do you agree that it could decide not to decide, as long as it did so properly?

[00:02:47] Speaker 01:
I think that the Setzer case says there are some examples when it could decide not to reach that, but Setzer makes it sound like if there are some unknown variables that aren't within the court's grasp.

[00:02:57] Speaker 00:
What's the case that tells us that the district court has to run through the sentencing factors to decide not to decide?

[00:03:03] Speaker 01:
Well, I think 35, the statute, which is 18 USC 3584B, talks about the 3553 factors that the court runs through when it's making a decision as to whether to run it concurrent or consecutive.

[00:03:17] Speaker 01:
So I think by default, the 3553 factors should come into play if the court is not going to address it, particularly in this case, where as the government mentions, if you're not going to address it, that is a default

[00:03:29] Speaker 01:
a result is that it's going to be a consecutive sentence.

[00:03:33] Speaker 00:
Have any circuits reach that conclusion?

[00:03:36] Speaker 00:
Have any circuits reach the conclusion that you're advocating?

[00:03:38] Speaker 00:
I'm sorry?

[00:03:38] Speaker 00:
Have any circuits reach the conclusion that you're advocating?

[00:03:40] Speaker 00:
I mean, I know we haven't.

[00:03:42] Speaker 01:
I'm not aware of any, Your Honor, but I think the implications here are so tremendous.

[00:03:46] Speaker 01:
Think about this case.

[00:03:48] Speaker 01:
If the district court is not going to rule on the issue, then according to the government, by default, that means it's consecutive.

[00:03:54] Speaker 04:
And if the district court... Make sure I understand how that works.

[00:03:58] Speaker 04:
Is it consecutive even if the state court was to say that a sentence should run concurrently?

[00:04:03] Speaker 01:
I think so, because right now, Mr. Thompson is in state custody.

[00:04:07] Speaker 01:
So he is sitting in Pierce County jail.

[00:04:10] Speaker 01:
And even if the district, even if the state court says that it's going to run concurrent to the federal sentence, the problem is he's sitting in state custody.

[00:04:18] Speaker 01:
So what happens when he finishes his state sentence and comes back to the federal court?

[00:04:23] Speaker 01:
What we do, according to the government's briefing, is we look at the judgment.

[00:04:26] Speaker 01:
It's silent on the issue of concurrency or consecutive, which means by default, it's consecutive.

[00:04:31] Speaker 01:
meaning all that time he spent in state court is not being credited towards his federal sentence.

[00:04:36] Speaker 01:
That's precisely what I was concerned about in the district court, which is why I asked the court to rule on the issue.

[00:04:42] Speaker 04:
And the way the district court, Judge Settle... Your position is that it wasn't given the way things were likely to happen where your client would end up in state custody, that there was no real way for the federal court to kick the issue to the state court or to defer the issue and let the state court... Because the state court would not be able to make the decision because he would be in state custody.

[00:05:06] Speaker 01:
Exactly.

[00:05:07] Speaker 01:
And also, I think it's not this, the Judge Settle used the term recommendation, and I think that's the term that illustrates the legal error here.

[00:05:15] Speaker 01:
It's not a recommendation that the federal court run the sentence concurrent or consecutive, it's an actual decision.

[00:05:21] Speaker 01:
Because if the Judge says, for example, Judge Settle says, based on the 3553 factors, I'm going to run it concurrent to any forthcoming state court sentence.

[00:05:29] Speaker 01:
That's not a recommendation to the state court, because the state court, quite frankly, doesn't care what the judge does.

[00:05:35] Speaker 01:
Or it's not impacting what the state court decides to do.

[00:05:38] Speaker 01:
If Judge Settle says the federal sentence is going to be concurrent to the forthcoming state court sentence, that's not a recommendation.

[00:05:44] Speaker 01:
That's an actual decision, which is what we're asking the court to do.

[00:05:48] Speaker 01:
It seemed like Judge Settle thought that by making this recommendation, it was stepping on the proverbial toes of the state court.

[00:05:54] Speaker 01:
And that's not the situation here.

[00:05:56] Speaker 01:
Setzer tells us that, Judge, you actually have the right to make a decision.

[00:06:00] Speaker 01:
And my position is when you're making that decision, you should consider the 3553 factors.

[00:06:07] Speaker 01:
But one other point I want to make is consider the sentence that was given to Mr. Thompson.

[00:06:11] Speaker 01:
Recall that the sentencing guidelines were 30 years to life.

[00:06:16] Speaker 01:
The government was asking for 45 years.

[00:06:19] Speaker 01:
Judge Settle gave him 28 years.

[00:06:21] Speaker 01:
Now think about that.

[00:06:22] Speaker 01:
Did Judge Settle want, by default, his sentence to run consecutive to the state court sentences?

[00:06:27] Speaker 01:
That doesn't make sense.

[00:06:29] Speaker 01:
Because he actually went through the 3553 factors with regard to the large sentence that

[00:06:34] Speaker 01:
production sentence.

[00:06:35] Speaker 01:
He rattled off all the factors, and he did an excellent job of that.

[00:06:38] Speaker 01:
And he said, this is a serious offense.

[00:06:40] Speaker 01:
It impacts the victims.

[00:06:42] Speaker 01:
That's the bad part for Mr. Thompson.

[00:06:44] Speaker 01:
But the good part for Mr. Thompson is his ACES score, which was 9 out of 10.

[00:06:49] Speaker 01:
And in the transcript, Judge Settle says, I've only seen one other defendant in this court with a 9 out of 10 score.

[00:06:54] Speaker 01:
and I've never seen anybody with a 10.

[00:06:56] Speaker 01:
So I'm going to give you credit for the horrible background you had as a child and I'm going to sentence you to 28 years.

[00:07:03] Speaker 01:
So now let's think about that.

[00:07:04] Speaker 01:
The implication, according to the government, is that even though Judge Settle sentenced my client to 28 years,

[00:07:11] Speaker 01:
In fact, it's really a life sentence because it's going to be consecutive to the state court.

[00:07:16] Speaker 01:
So Your Honors, I'm asking the court to send this case back to Judge Settle for the very simple inquiry, which I think I'm going to win in the district court, which is, should the federal sentence be concurrent or consecutive to the state court sentences?

[00:07:28] Speaker 04:
So before you sit down, Judge Hamilton, did you have any questions?

[00:07:30] Speaker 04:
I think it's been addressed.

[00:07:31] Speaker 04:
OK.

[00:07:33] Speaker ?:
OK.

[00:07:33] Speaker 00:
Well, you know what, actually, I just have one more question, which is, in your view, are there any circumstances outside of the one that was presented in Setzer where a district court could forbear?

[00:07:46] Speaker 00:
Or is that it?

[00:07:49] Speaker 00:
I mean, is that case somehow, I don't know, unique in that way?

[00:07:54] Speaker 01:
I think Setzer really showed the power of the district court to make decisions.

[00:07:59] Speaker 01:
Because recall in Setzer, the question was, well, should we defer it to the BOP?

[00:08:02] Speaker 01:
Should we defer it to the state court?

[00:08:04] Speaker 01:
And Setzer said, historically, district courts have had the power to make that decision.

[00:08:09] Speaker 02:
They have the power to do that.

[00:08:11] Speaker 02:
But very often, a judge will decide just to defer to whoever has the later decision, right?

[00:08:19] Speaker 02:
Yes, Your Honor, but in this case... And we expect state courts to give that kind of deference to federal courts, right?

[00:08:26] Speaker 02:
Right, but... So what's wrong with this approach?

[00:08:30] Speaker 01:
Think about it.

[00:08:31] Speaker 01:
We're deferring to perhaps the BOP or the state court to decide whether the time that he's spending in state court and the time he's spending away from federal court should run together.

[00:08:42] Speaker 02:
Well, somebody has to.

[00:08:44] Speaker 02:
Either judge can make that decision, right?

[00:08:46] Speaker 01:
Right.

[00:08:46] Speaker 01:
And if Judge Settle had said, I'm going to run it consecutive because this is a horrendous crime, then I'd be coming here in front of this panel saying it was an abusive discretion.

[00:08:54] Speaker 01:
I'm not doing that, though, because first of all, he didn't explain why it was, by default, consecutive.

[00:09:00] Speaker 01:
Second of all, I don't think that's what he intended.

[00:09:02] Speaker 01:
I think if you look at that transcript, there's only one conclusion you can have, which is Judge Settle did not want Mr. Thompson to die in federal prison.

[00:09:09] Speaker 01:
And I think by implication, sending this case.

[00:09:13] Speaker 02:
Thompson may very well have earned the right to die in state prison, right?

[00:09:16] Speaker 02:
Correct.

[00:09:17] Speaker 02:
He has quite a record.

[00:09:18] Speaker 02:
Correct.

[00:09:19] Speaker 02:
And I guess I have trouble seeing what's unreasonable about a federal judge deferring to the state courts under those circumstances.

[00:09:28] Speaker 01:
Well, because if you look at Judge Settle's decision to sentence him to 28 years, that's not what he was wanting.

[00:09:34] Speaker 01:
Judge Settle was very compassionate when it came to Mr. Thompson.

[00:09:37] Speaker 01:
He could have thrown the book at him and sent him away for life.

[00:09:38] Speaker 01:
He didn't.

[00:09:39] Speaker 01:
And I think he looked at his background as a child.

[00:09:41] Speaker 04:
That's one, and I'll make sure you have time for it, but that's one

[00:09:44] Speaker 04:
The other inference you could draw is that Judge Settle recognized that these sentences might run consecutively and therefore gave him a lighter federal sentence.

[00:09:55] Speaker 04:
I mean, that's the other inference you could draw from that.

[00:09:57] Speaker 04:
It's difficult for us to know which inference to draw, right?

[00:10:00] Speaker 01:
And Your Honor, I think if it's difficult, then I think this case would be set back for a very quick hearing on a very simple.

[00:10:06] Speaker 01:
If we look at Judge Settle's ruling, it's really a sentence or two.

[00:10:09] Speaker 01:
And the government's explanation for why it wants to remain silent is even less than a sentence.

[00:10:13] Speaker 01:
So I think elaboration on remand would be appropriate.

[00:10:16] Speaker 01:
We'll hear from the government, and we'll make sure we give you a couple minutes.

[00:10:18] Speaker 04:
Thank you, Your Honor.

[00:10:19] Speaker 04:
Thank you.

[00:10:25] Speaker 03:
Good morning, Your Honors.

[00:10:26] Speaker 03:
May it please the Court, Michael Morgan for the United States.

[00:10:30] Speaker 03:
Unless the court has any questions about the mandatory minimum sentence, I will focus my attention on the consecutive concurrent issue before the court.

[00:10:40] Speaker 02:
Sector is very clear.

[00:10:41] Speaker 02:
I would like to ask you briefly about the mandatory sentence.

[00:10:46] Speaker 02:
And that is you addressed fairly briefly in your brief the scenarios case.

[00:10:53] Speaker 02:
Yes.

[00:10:53] Speaker 02:
And I was wondering, that struck me as kind of the simplest path, with all the complications, with the different definitions that have been coming and going.

[00:11:08] Speaker 02:
Would you be comfortable with an analysis that relied primarily on scenarios?

[00:11:15] Speaker 03:
I agree, Your Honor, that the simplest path for upholding the mandatory minimum is to apply the generic definition that we have characterized in our briefing as the abusive sexual conduct variant of sexual abuse, which is just the three elements of sexual conduct with a minor that is abusive.

[00:11:32] Speaker 03:
And under this Court's precedence, all three of those are categorically matched by the Washington statute.

[00:11:37] Speaker 03:
So that is definitely the most straightforward way.

[00:11:40] Speaker 02:
And with a little flexibility from the relating to phrase.

[00:11:44] Speaker 03:
And there is the flexibility, but I don't believe that we need it.

[00:11:47] Speaker 03:
But yes, there is that flexibility in this case as well.

[00:11:50] Speaker 04:
This is what could also be called the Medina Villa definition?

[00:11:55] Speaker 03:
Yes, the Medina Villa versus the Estrada.

[00:11:59] Speaker 03:
Right, however you choose to divvy those up.

[00:12:02] Speaker 02:
I'm just trying to suggest that scenarios might be a cleaner path than trying to choose between Medina Villa and Estrada.

[00:12:09] Speaker 03:
I agree.

[00:12:10] Speaker 03:
I think I think scenarios actually is the Medina Ville analysis with the relating to kicker.

[00:12:17] Speaker 03:
With regard to the concurrent or consecutive issue there the defense's arguments is a bit of a moving target and and it affects the standard of review I think if the issue is whether or not the court had to decide like it had no discretion not to decide if that's the claim

[00:12:36] Speaker 03:
I think that claim would be reviewable with plain error, because below, the defense never argued to the court that you must decide.

[00:12:45] Speaker 03:
They asked for a concurrent sentence, but they never said you have to decide.

[00:12:49] Speaker 03:
If the defendant thought that the court was making a legal mistake by not making a decision, it should have alerted the court to that fact instead of trying to sandbag the court on appeal.

[00:13:00] Speaker 03:
saying that the court misunderstood the law.

[00:13:04] Speaker 03:
If the claim is simply you should have imposed a concurrent sentence, well, that would be reviewed for abuse of discretion, because that's just the normal standard of review for whether or not you should run a sentence concurrently or consecutively, or not at all in this case.

[00:13:19] Speaker 03:
So I think it's just important to try to focus on what exactly is the claim.

[00:13:24] Speaker 03:
And if the claim is that the district court misunderstood the law, well, the first answer is

[00:13:30] Speaker 03:
The transcript of the colloquy, everyone seemed to understand the court had discretion to order a concurrent sentence.

[00:13:38] Speaker 03:
I mean, the entire sentencing was litigated on that premise, and the court just declined to do so, which Setzer makes very clear is within its discretion.

[00:13:49] Speaker 04:
So I think all that makes sense.

[00:13:51] Speaker 04:
As I understand the argument that he was making this morning is just because of the way it's going to work here that he's going to go into, he's likely probably to serve his state sentence first.

[00:14:03] Speaker 04:
In some ways, is it true that then it's impossible for the state to do anything about whether it's consecutive or concurrent because let's say he serves 20 years.

[00:14:14] Speaker 04:
He serves 20 years in state court or state prison.

[00:14:19] Speaker 04:
And he gets out, and the feds take him.

[00:14:21] Speaker 04:
And then even if the state was to say, well, that 20 years is concurrent with the federal system, if the federal system doesn't say that it's concurrent, then he's going to serve 28 more years.

[00:14:37] Speaker 04:
Is that right?

[00:14:38] Speaker 04:
And so in some ways, if that's correct, then a judge thinking that, oh, well, he could

[00:14:47] Speaker 04:
that I'll kick this to the, I'm going to defer to the state court to make the decision, is not really correct, right?

[00:14:55] Speaker 04:
Because it's just the way it's going to, it's likely going to work out.

[00:14:58] Speaker 03:
Well, I think it winds up being an interplay of a couple things.

[00:15:02] Speaker 03:
It's like who has primary jurisdiction, so which sentence is going to run first, and also

[00:15:09] Speaker 03:
not only how the Federal Bureau of Prisons is going to calculate the sentence, but also how the state is going to implement its state sentence.

[00:15:17] Speaker 03:
So I think, for example, let's hypothesize that in our case, the district court expressly ordered its sentence to run consecutively.

[00:15:26] Speaker 03:
So we know how BOP is going to calculate that.

[00:15:28] Speaker 03:
They are going to not run that sentence until the state sentence is finished.

[00:15:33] Speaker 03:
That's just how BOP will calculate it.

[00:15:35] Speaker 04:
That's if he's in state custody first.

[00:15:37] Speaker 03:
That's if he's in state custody.

[00:15:39] Speaker 04:
If he was in federal custody first, in some ways,

[00:15:41] Speaker 04:
You know, BOP could have him there for 28 years, and whatever time it turns out.

[00:15:46] Speaker 04:
And they let him out, and they can't be like, you have to now take him state if the state wanted it to run.

[00:15:51] Speaker 04:
So it's kind of like the second in time gets to make the decision.

[00:15:54] Speaker 03:
Well, I mean, oddly enough, and I don't profess to be an expert at all the BOP's regulations for this, but I did look at them.

[00:16:02] Speaker 03:
And my understanding is that even if he's in federal custody first, and so there's a pending state sentence out there,

[00:16:09] Speaker 03:
But he was in federal custody first.

[00:16:12] Speaker 03:
And the federal judge says, I'm going to run this consecutive to the state sentence.

[00:16:16] Speaker 03:
BOP, once the state sentence is imposed, will ship him out to the state to implement the federal sentence.

[00:16:22] Speaker 03:
So that is how the BOP regulations will work.

[00:16:25] Speaker 03:
They will implement the federal sentence that is imposed.

[00:16:27] Speaker 03:
They will implement the federal sentence that the district court imposed.

[00:16:33] Speaker 03:
So if the district court imposes a sentence consecutive to an anticipated state sentence, even if the federal sentence is first, which is actually our case here, because for Pierce County, the order is King County, federal, Pierce County.

[00:16:49] Speaker 03:
A lurking issue here is that he's actually still technically in custody in King County, because there's an indeterminate sentence that's still hanging out there.

[00:16:56] Speaker 03:
So he's not actually in federal custody yet, and may never be in federal custody unless the indeterminate sentencing board in Washington State decides to terminate the indeterminate sentence from the 2016 case.

[00:17:09] Speaker 03:
So in a way, a lot of this is academic.

[00:17:12] Speaker 03:
But take that case to the side.

[00:17:14] Speaker 03:
If we're just talking about the Pierce County case,

[00:17:16] Speaker 03:
If the federal court imposed a consecutive sentence and the state court imposed a concurrent sentence, say, then what the federal court will do would be to ship – BOP will ship him to state court to serve his state sentence, and then he will come back to federal court to serve the consecutive sentence, to implement the sentence that BOP imposed.

[00:17:37] Speaker 03:
So that's how practically this would work.

[00:17:39] Speaker 03:
And that's how practically this will work in the current scenario, because the district court deferred imposing sentence.

[00:17:46] Speaker 04:
Given the way you just described it, the last part there.

[00:17:48] Speaker 04:
He's going to go to the state, and then he's going to do the rest of his federal sentence when he comes back.

[00:17:55] Speaker 04:
Then there's nearly nothing for the state.

[00:17:58] Speaker 04:
There's nothing to defer to as far as what the state decides, because if the state decides

[00:18:03] Speaker 04:
Even if the state was to say, he's going to spend 20 years first in state, and we think that should run consecutive.

[00:18:13] Speaker 04:
If the feds decided that he was going to run, that no, our sentence needs to run,

[00:18:20] Speaker 04:
The state said it should run concurrent, and the Fed said, when we need to run it consecutive, then he's going to spend 28 more years in federal prison after a state prison.

[00:18:34] Speaker 04:
Because it'll be up to the Feds to decide whether it won't be up to the state.

[00:18:36] Speaker 04:
It'll be up to the BOP, right?

[00:18:39] Speaker 03:
Well, no, it would not be up to BOP in that circumstance.

[00:18:42] Speaker 03:
In that circumstance, I believe it would be a result of the default rule in 3584A, that if you have multiple sentences of imprisonment imposed at different times, they run consecutively unless the court orders differently.

[00:18:57] Speaker 04:
So to be clear, my point is it won't be up to a state.

[00:19:01] Speaker 04:
It won't be up to the state.

[00:19:01] Speaker 04:
So if we think the judge was trying to defer to the state,

[00:19:07] Speaker 04:
I think your counsel on the other side's argument is, well, that's just wrong.

[00:19:10] Speaker 04:
Because as a practical matter, in this circumstance where he's going to serve a state sentence first and then serve, there will never be a situation of deferring to the state because of the fact that

[00:19:23] Speaker 04:
there'll be a decision made, and you're saying it'll be made by virtue of the rules, not by the BOP, but by the federal rule.

[00:19:30] Speaker 04:
The federal rule will decide that he's got to serve it consecutively, even if the state was to make a decision that it should be concurrent.

[00:19:36] Speaker 03:
But I would point out to Your Honor that

[00:19:39] Speaker 03:
Every circuit to consider the issue has found that a court has discretion to defer in this very circumstance.

[00:19:47] Speaker 03:
There's actually a case from the Seventh Circuit.

[00:19:49] Speaker 04:
I don't think you're getting a lot of pushback on that, from me at least.

[00:19:53] Speaker 04:
But the question is defer.

[00:19:55] Speaker 04:
There's nothing really deferring.

[00:19:58] Speaker 04:
As I'm understanding it, the way I'm explaining it, there's nothing deferring.

[00:20:01] Speaker 04:
Because as soon as the judge decides not to decide,

[00:20:04] Speaker 04:
by virtue of the fact that there's a rule that says that they'll run consecutively, and that's what will decide it, then essentially not making a decision is making a decision to run consecutively.

[00:20:17] Speaker 04:
And there's probably nothing wrong with that unless the judge, as I understand your colleague on the other side is saying, yeah, but that's not what the judge here thought he was doing.

[00:20:25] Speaker 03:
And I guess my only response to that would be,

[00:20:30] Speaker 03:
I have a difficult time understanding that Judge Settle did not know what he was doing because he was pressed repeatedly to order a concurrent sentence and didn't.

[00:20:38] Speaker 03:
So, I mean, we're trying to – I mean, the defense is trying to impute to the judge an ignorance of the law, and that's the presumption that's exactly backwards.

[00:20:46] Speaker 03:
We presume the district courts understand the law and know the law, absent some, you know, record-based reason to think the court didn't.

[00:20:54] Speaker 03:
And I just don't think looking at this record, and especially the way this hearing was litigated, that we can say the district court was ignorant of the fact that it had discretion to impose a concurrent sentence and did not.

[00:21:04] Speaker 04:
Let me make sure my colleagues see if they have any other questions.

[00:21:08] Speaker 04:
Okay.

[00:21:08] Speaker 04:
Well, we'll hear a couple minutes first.

[00:21:10] Speaker 04:
Thank you.

[00:21:14] Speaker 01:
Thank you, Your Honor.

[00:21:15] Speaker 01:
Judge Van Dyke, I think, phrased it perfectly.

[00:21:17] Speaker 01:
The scenario Your Honor gave is exactly what I'm concerned of.

[00:21:22] Speaker 04:
And their response is,

[00:21:26] Speaker 04:
I suppose we'd have to assume that the district court judge didn't know what he was doing.

[00:21:30] Speaker 04:
So it's a little bit of the opposite of the presumption of regularity.

[00:21:34] Speaker 04:
And so I think your point is, if the district court judge decides not to decide, as a practical matter in this certain circumstance at least, the district court judge is sentencing my client, I always get these words wrong, concurrently, consecutively.

[00:21:50] Speaker 04:
And I think that only helps you if we assume that the district court judge meant to do something different.

[00:21:56] Speaker 04:
If the district court judge was like, yeah, that's right.

[00:21:59] Speaker 04:
I was sensing him consecutively, but I didn't want to say it because I was just going to leave it to the rule to do that.

[00:22:09] Speaker 04:
Is that not permitted to leave it to the rule if we had a crystal ball and knew that's what the judge was trying to do?

[00:22:16] Speaker 01:
I have a real hard time with that, given the magnitude of the consequence of not doing anything.

[00:22:21] Speaker 01:
As Your Honor said earlier, deciding not to decide is essentially deciding consecutive in a roundabout way.

[00:22:26] Speaker 01:
That's not what this transcript tells us.

[00:22:28] Speaker 01:
That is not what Judge Settle wanted to do.

[00:22:30] Speaker 01:
And in fact, the government didn't even explain why it wanted to be silent on this.

[00:22:35] Speaker 01:
And I'm not alleging anything nefarious by the government.

[00:22:38] Speaker 01:
But as Your Honor noted, if he spends 20 years in Pierce County, the clock is going to restart, and he's going to start his 28 years all over again.

[00:22:46] Speaker 01:
And that's not what Judge Settle wanted.

[00:22:48] Speaker 01:
And if that's what Judge Settle wanted, then he could have said consecutive or rattled off the 3553 factors as to explain why.

[00:22:56] Speaker 01:
And again, that's not it.

[00:22:58] Speaker 01:
Judge Hamilton says, well, maybe Mr. Thompson deserved this.

[00:23:03] Speaker 01:
I would ask for a remand to clarify that, because that's not what I'm reading in the transcript.

[00:23:07] Speaker 02:
Just reading, can I ask you to address the government's plain error point with respect to the argument that you're making this morning?

[00:23:15] Speaker 01:
Well, what the government is saying is that I should have emphatically told the judge, your honor, by default, you are having a consecutive sentence.

[00:23:24] Speaker 01:
And perhaps that is true.

[00:23:25] Speaker 01:
Again, I question the party that brought this up was the government.

[00:23:29] Speaker 01:
The judge was inclined to go with my recommendation.

[00:23:32] Speaker 01:
The government said in one sentence, let's not do this.

[00:23:35] Speaker 01:
It's interesting that the government doesn't elaborate in district court as to why it's wanting the judge to do that.

[00:23:40] Speaker 01:
But even with a plain error standard, the question is, was there error?

[00:23:43] Speaker 01:
And I think I've established the reason there is.

[00:23:45] Speaker 01:
And second of all, substantial.

[00:23:47] Speaker 01:
I mean, this man's life is pretty much over in terms of his chance for liberty by virtue of this.

[00:23:54] Speaker 01:
So I think any of these standards we prevail on because there is error and it's substantial.

[00:24:00] Speaker 01:
So we're asking, again, Your Honors, to send this back to Judge Settle for what I think would be a 30-minute hearing on a very brief issue.

[00:24:06] Speaker 04:
Thank you, Your Honor.

[00:24:07] Speaker 04:
Thank you to both counsel.

[00:24:08] Speaker 04:
I appreciate your helpful argument this morning, and this case is now submitted.