[00:00:00] Speaker 01:
Council may proceed.

[00:00:09] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 02:
Alyssa Bell, on behalf of Vicente Morales, I would like to reserve two minutes of my time for rebuttal.

[00:00:18] Speaker 02:
All right.

[00:00:18] Speaker 02:
What's your clock?

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

[00:00:21] Speaker 02:
Your Honors, the District Court gave a statement of reasons in this case that was fatally deficient.

[00:00:28] Speaker 02:
The jury returned a split verdict that represented a wholesale rejection of the government's theory of the case.

[00:00:35] Speaker 02:
I'm having a little hard time hearing you.

[00:00:36] Speaker 02:
Yes, I'm sorry.

[00:00:37] Speaker 02:
I'll come closer to the microphone.

[00:00:39] Speaker 02:
I'll start that again.

[00:00:40] Speaker 02:
The jury returned a split verdict that represents a wholesale rejection of the government's theory of the case.

[00:00:47] Speaker 02:
The jury acquitted Morales of having conspired with his co-defendants and of being a source of supply in the conspiracy.

[00:00:55] Speaker 02:
They credited his testimony.

[00:00:57] Speaker 02:
They found that he was an addict who distributed methamphetamine on a single day as part of a single transaction.

[00:01:04] Speaker 02:
And against this backdrop at sentencing, there were disputed issues between the parties.

[00:01:11] Speaker 02:
The key disputed issue was whether the government had met its burden by a preponderance of the evidence of showing that Morales was responsible for the acquitted conduct.

[00:01:21] Speaker 02:
The other key disputed issue was whether Morales was sincerely contrite.

[00:01:26] Speaker 02:
This was not a case where there were undisputed facts or agreed upon enhancements where it might be possible to infer from a barebone statement of reasons what the district court had found.

[00:01:39] Speaker 02:
In this case, the district court was required to make findings that specifically resolved to the party's disputes.

[00:01:48] Speaker 02:
And in this case, and I quote from this court's decision in Rangel Guzman,

[00:01:53] Speaker 02:
this court should decline the government's invitation to guess what the district court was thinking.

[00:01:59] Speaker 02:
I'd like to address the acceptance of responsibility adjustment first before moving on to rule 32 and the mitigating rule adjustment.

[00:02:10] Speaker 02:
The district court statement of reasons regarding acceptance of responsibility was

[00:02:16] Speaker 02:
Bare bones, the court said, early admission and acceptance of responsibility.

[00:02:20] Speaker 02:
That definitely was not true here after trial.

[00:02:24] Speaker 02:
I don't have to go into that.

[00:02:25] Speaker 00:
Well, counsel, I see the district court was saying more.

[00:02:29] Speaker 00:
The district court right before the part you quoted said at ER 26, first of all, the court's going to find that the safety valve is the real question and real close, but I'm not convinced the defendant was truthful.

[00:02:42] Speaker 00:
And so I'm not going to apply the safety valve.

[00:02:44] Speaker 00:
As to the admissions, early admission and acceptance of responsibility, that definitely was not true here after the trial, et cetera.

[00:02:53] Speaker 00:
So the district court right after saying that they didn't find the defendant credible says that with the other factors going to trial, et cetera, they're not going to give acceptance of responsibility.

[00:03:06] Speaker 00:
I don't see why.

[00:03:08] Speaker 00:
That's such a deficient statement of reasons that we should find clear error here.

[00:03:17] Speaker 02:
I think, Your Honor, the record is not quite so clear.

[00:03:20] Speaker 02:
The district court made conflicting statements regarding safety valve eligibility.

[00:03:26] Speaker 02:
In the first instance, the court said, I'm not going to apply that.

[00:03:29] Speaker 02:
And later in the sentencing hearing, as the government has pointed out in its papers,

[00:03:33] Speaker 02:
the court said, I will apply the safety valve adjustment.

[00:03:37] Speaker 02:
Obviously, the issue of safety valve is no longer before the court, but in terms of what the district court understood about Mr. Morales' sincere contrition, if the government's read of the record is correct, in fact, the district court made a finding that Mr. Morales had fully admitted the conduct underlying the crime of conviction.

[00:03:59] Speaker 02:
and that is fundamentally incompatible with finding that he had not accepted responsibility.

[00:04:04] Speaker 00:
I'm not sure why that would be true.

[00:04:06] Speaker 00:
The defendant made an offer to plead guilty to this particular count.

[00:04:12] Speaker 00:
The government rejected it.

[00:04:15] Speaker 00:
The defendant went to trial.

[00:04:17] Speaker 00:
He said a number of what I consider to be ambiguous things

[00:04:22] Speaker 00:
In his testimony, the judge found that he was not truthful and found that he didn't get acceptance of responsibility.

[00:04:32] Speaker 00:
And again, I'm just having trouble finding why that would be clear error here.

[00:04:37] Speaker 02:
Well, Your Honor, I think we put forth in the reply brief exactly what Morales offered to plead guilty to pre-trial.

[00:04:46] Speaker 00:
As a part of a plea agreement.

[00:04:49] Speaker 00:
I might have the number of counts wrong, but if I, four counts?

[00:04:52] Speaker 00:
Was it four counts?

[00:04:53] Speaker 02:
Three counts.

[00:04:54] Speaker 00:
No, but there were four total or three total?

[00:04:57] Speaker 02:
Three total charging him.

[00:04:59] Speaker 04:
Was there just the one global plea discussion?

[00:05:04] Speaker 02:
That's my understanding of the record, Your Honor, yes.

[00:05:07] Speaker 00:
But your client offered to plead guilty to one.

[00:05:11] Speaker 02:
That's correct, Your Honor.

[00:05:12] Speaker 00:
And as the government pointed out in its brief, your client could have gone in and pled guilty to that count and gone to trial on the others, but chose not to, right?

[00:05:23] Speaker 02:
I'm not certain that's accurate, Your Honor, because the cases that the government relies upon involve situations where the defendant's attempts or requests to plead guilty to one count alone were rebuffed by the court.

[00:05:37] Speaker 00:
No, no, no.

[00:05:38] Speaker 00:
Maybe my question was inexact.

[00:05:41] Speaker 00:
The government said as a factual matter

[00:05:43] Speaker 00:
that the defendant here could have entered a guilty plea on the one count that he was convicted of before trial and gone to trial on the rest.

[00:05:53] Speaker 00:
That was an option open to him, right?

[00:05:56] Speaker 02:
It may have been an option open to him if the court was willing to accept a partial plea.

[00:06:02] Speaker 02:
However, this court's precedents have never required a defendant to plead guilty in order to receive acceptance points.

[00:06:10] Speaker 02:
And in fact, as early as McKinney, this court has held that it would be error if the guidelines were interpreted in that manner to penalize a defendant's exercise of his constitutional right to plead guilty.

[00:06:22] Speaker 00:
Let me ask you an unrelated question, counsel.

[00:06:26] Speaker 00:
Let's assume first that the panel was willing to agree with you on acceptance of responsibility and send this case back.

[00:06:35] Speaker 00:
When the case went back, that the district court would then have to remove the credit for the safety valve, right?

[00:06:45] Speaker 02:
That's correct, Your Honor.

[00:06:46] Speaker 00:
And so as a theoretical matter, your client could get a higher sentence in that circumstance, right?

[00:06:54] Speaker 00:
As a theoretical matter, I think that's right your honor So the district court if we directed the district court to provide the acceptance points but take away the the safety valve points the district court would have the ability to consider the entire record and decide whether on remand There should be a higher sentence

[00:07:18] Speaker 02:
Resentencing is plenary, and I think every defendant in this position takes the risk that the district court may review the factors again and may come to a different conclusion.

[00:07:28] Speaker 02:
I think in this case, there's good reason to think, however, that if this court were to remand with a directive to consider the acceptance of responsibility properly under the correct legal standard, that the district court would make a different decision.

[00:07:43] Speaker 02:
The record, I'm sorry, Your Honor.

[00:07:45] Speaker 00:
No, no.

[00:07:47] Speaker 00:
I mean, I just want to make sure I'm not asking you to disclose privileged information, but I just want to make sure your client understands that even if he were to win on acceptance, he could end up with a higher sentence.

[00:07:59] Speaker 02:
Well, thank you.

[00:08:00] Speaker 02:
I certainly won't disclose privileged information.

[00:08:03] Speaker 02:
I think as a theoretical matter, every defendant in this situation must understand that upon a plenary resentencing, the court will review the full record before it at that time, including any additional rehabilitation that may be relevant at the time of a resentencing.

[00:08:21] Speaker 02:
I see that my time is up for the moment, and I'll reserve the rest for rebuttal.

[00:08:25] Speaker 01:
Thank you.

[00:08:44] Speaker 03:
Good morning and may it please the court, Laura Alexander on behalf of the United States.

[00:08:50] Speaker 03:
This court should affirm the trial court's judgment because in sentencing the defendant to a low end within guidelines range sentence, the trial court made all required factual findings and it properly exercised its discretion in denying the defendant's requested departures and variances.

[00:09:13] Speaker 03:
And I'll first turn to the issue that we were just discussing, acceptance of responsibility.

[00:09:20] Speaker 03:
Here, it's important to note that we give deference to the trial court in

[00:09:29] Speaker 03:
The the issue of acceptance of responsibility because here the judge the trial court judge observed the defendant when he oversaw the four day trial it's difficult to parse the sentences of a transcript here.

[00:09:44] Speaker 03:
and to require linguistic precision from the trial court judge at sentencing.

[00:09:51] Speaker 03:
But that judge oversaw the trial where the defendant himself testified.

[00:09:56] Speaker 04:
Could I ask you a question about that?

[00:09:59] Speaker 04:
Judge Bennett's just walked through the bit of the transcript where the trial judge indicated he didn't believe the defendant.

[00:10:07] Speaker 04:
And I've looked carefully to see where that is in the transcript and what he was talking about and whatnot.

[00:10:13] Speaker 04:
And as you say, it's always a little hard to look at a transcript and put ourselves in the shoes of.

[00:10:18] Speaker 04:
But the judge did indicate that he didn't believe the defendant's testimony.

[00:10:23] Speaker 04:
Can you tell me how you think that factors into the question we have to answer today?

[00:10:29] Speaker 03:
Yes, Your Honor.

[00:10:30] Speaker 03:
When looking at the transcript, that specific statement is within the context of safety valve.

[00:10:36] Speaker 03:
But as Your Honor mentioned, very shortly thereafter, the trial court judge observed that there was no acceptance of responsibility here.

[00:10:46] Speaker 03:
He said, definitely not here.

[00:10:47] Speaker 03:
And after the trial that he himself observed and sat through.

[00:10:52] Speaker 03:
So we do view that as an adverse credibility finding from the judge.

[00:10:56] Speaker 04:
And what is the ramification of that?

[00:10:58] Speaker 04:
If you think it's a global, I'm taking you to, I'm understanding you to say you think it's a sort of a global adverse credibility determination.

[00:11:06] Speaker 04:
And what's the legal consequence of that, please?

[00:11:08] Speaker 03:
The legal consequence, Your Honor, is that the trial court's determination that the defendant did not express sincere remorse

[00:11:18] Speaker 03:
um, was a correct finding by the judge to deny that departure from the guidelines.

[00:11:26] Speaker 01:
You know, when we didn't get during the trial as to count for.

[00:11:33] Speaker 03:
Yes, Your Honor.

[00:11:33] Speaker 03:
However, when the defendant admitted guilt during the trial, that was after the government's case in chief.

[00:11:41] Speaker 03:
And the commentary to 3E1.1, it guides the court to look to statements made by a defendant who goes to trial, statements that occurred prior to trial.

[00:11:52] Speaker 03:
Those are more indicative of sincerity and of genuineness because they're not self-serving statements made post trial or post the government's case in chief.

[00:12:03] Speaker 03:
And here, the defendant filed a joint statement of the case with the government a week before trial in which he represented that he contested all three counts.

[00:12:15] Speaker 03:
And as Your Honor noted as well, the defendant had the opportunity before trial

[00:12:21] Speaker 03:
to plead guilty, plead open to the count of conviction, but he didn't.

[00:12:27] Speaker 03:
He continued to deny guilt as to the count of conviction all the way through the government's case in chief.

[00:12:33] Speaker 03:
In the opening statement, there was not a direct concession that he

[00:12:38] Speaker 03:
committed that count of conviction.

[00:12:41] Speaker 03:
It was vague language used by defense counsel as to whether there would be discussion or, you know, disagreement regarding that specific count.

[00:12:52] Speaker 00:
I'm not sure how vague it was.

[00:12:54] Speaker 00:
I mean, the defense counsel says one of the counts relates to January 8th.

[00:12:57] Speaker 00:
There's probably not going to be a lot of disagreement, maybe on some particulars, but everything else you will find Mr. Morales not guilty.

[00:13:04] Speaker 00:
Thank you.

[00:13:05] Speaker 00:
I mean in the context of trial that doesn't seem to me all that vague.

[00:13:10] Speaker 03:
It's fake when you read that statement, probably not, in context of defense counsel's description of her strategy in the sentencing position that she filed.

[00:13:22] Speaker 03:
In the sentencing position for the defendant, defense counsel stated that it was their own tactic to seek an acquittal on all three counts by challenging the credibility of the government's law enforcement witness.

[00:13:35] Speaker 00:
You're talking about what's in their footnote, 10?

[00:13:37] Speaker 03:
Yes, Your Honor.

[00:13:39] Speaker 04:
Counsel, I can't really tell whether you're talking about this.

[00:13:41] Speaker 04:
I think you've been clear about it.

[00:13:43] Speaker 04:
Your read of the record is that there was a global adverse credibility determination.

[00:13:47] Speaker 04:
But I can't tell if you're factoring in the judges, factoring in the charges on which the defendant was acquitted.

[00:13:58] Speaker 03:
The government is only looking at the count of conviction here, not the counts on which the defendant was acquitted.

[00:14:07] Speaker 03:
Thank you for that clarification.

[00:14:09] Speaker 03:
Yes.

[00:14:11] Speaker 03:
And to make clear here too, we presume that district courts know the law.

[00:14:20] Speaker 03:
There was a lot of discussion in the defendant's opening brief about whether the factual

[00:14:29] Speaker 03:
the statement of reasons being sparse.

[00:14:32] Speaker 03:
And the government concedes that the statement of reasons could have been more fulsome, certainly.

[00:14:38] Speaker 03:
However, the statement of reasons is not so lacking that it requires reversal.

[00:14:43] Speaker 03:
We don't require the district court judge to state every legal reason, every element of the law when it's making its determination at a sentencing hearing.

[00:14:55] Speaker 03:
We presume that the district court

[00:14:56] Speaker 03:
knows the law when it comes to 3553A factors, many of which the district court judge did address during the sentencing.

[00:15:07] Speaker 00:
Counsel, if hypothetically we were to affirm there would be nothing to send back to the district court to do anything about the safety valve because the government did not cross appeal, correct?

[00:15:20] Speaker 00:
So the safety valve

[00:15:24] Speaker 00:
finding by the judge reducing the offense level would stay in effect, correct, if we were to affirm?

[00:15:32] Speaker 03:
That's not the government's position, Your Honor.

[00:15:34] Speaker 03:
The government's position is that although safety valve is not an issue here before this court now, after Pulsifer, the defendant essentially received a benefit at his sentencing that he should not have received.

[00:15:47] Speaker 00:
So upon re-sentencing, the government... No, but I'm saying if we were... government did not file a cross-appeal, right?

[00:15:55] Speaker 00:
No, Your Honor.

[00:15:56] Speaker 00:
So if we were to simply reject the defendant's contentions and affirm, the sentence that was imposed would simply stand.

[00:16:05] Speaker 00:
There would be nothing we would be sending back, right?

[00:16:07] Speaker 00:
Because the government didn't cross-appeal.

[00:16:09] Speaker 00:
And if we rejected the defendant's contentions on the other points, there would be nothing to send back, would there?

[00:16:16] Speaker 03:
No, Your Honor.

[00:16:18] Speaker 00:
I'm sorry.

[00:16:18] Speaker 00:
Is your no agreeing with me or disagreeing with me?

[00:16:22] Speaker 03:
I apologize, Your Honor.

[00:16:23] Speaker 03:
Can you clarify it?

[00:16:24] Speaker 00:
Sure.

[00:16:24] Speaker 00:
If we were to reject the defendant's contentions and affirm, there would be no need for a resentencing to deal with the safety valve because nothing would be going back, right?

[00:16:37] Speaker 03:
That's correct, Your Honor.

[00:16:39] Speaker 03:
If the court were to affirm and understanding that the defendant did receive a benefit at his sentencing that today, if the court were to remand, he would not receive.

[00:16:50] Speaker 03:
The government has not cross-appealed, so he would simply receive the benefit of the safety valve that was provided to him under Lopez.

[00:17:01] Speaker 01:
Well, you didn't cross-appeal because Pulsiver hadn't been decided, right?

[00:17:05] Speaker 03:
That's correct, Your Honor.

[00:17:08] Speaker 01:
And is it clear in the record that the safety valve was in fact given?

[00:17:13] Speaker 03:
It is clear, Your Honor.

[00:17:16] Speaker 03:
The district court judge simply made a misstatement as to whether

[00:17:22] Speaker 03:
He applied safety valve.

[00:17:24] Speaker 03:
Government counsel later inquired when it became clear that the district court judge made his findings based on a total offense level of 26 instead of 28.

[00:17:35] Speaker 03:
Government counsel asked him how he got from 28 to 26.

[00:17:39] Speaker 03:
And he clarified at that time that he applied safety valve.

[00:17:43] Speaker 03:
And given his earlier statement that he had not applied safety valve, government counsel clarified, so you did apply safety valve.

[00:17:51] Speaker 03:
And he confirmed that he did, in fact, apply safety valve.

[00:17:54] Speaker 00:
Because there's no other way it would have been a 26, right?

[00:17:57] Speaker 03:
Exactly, Your Honor.

[00:17:58] Speaker 03:
There's no other way.

[00:17:59] Speaker 03:
So we know that he did receive that benefit, that today, if we were to remand, he simply would not receive under Pulsifer.

[00:18:07] Speaker 03:
And I think that's important here too, because if there is any error, and the government contests that there was any error here at all, but even if there was, up to a level two at least, that error would be harmless, because he received that benefit.

[00:18:25] Speaker 00:
I don't think that's actually I would disagree with you because even though the number

[00:18:31] Speaker 00:
at the end would probably remain the same if it is, as you said, a two.

[00:18:36] Speaker 00:
The district court could still decide to lower the sentence if it went back.

[00:18:41] Speaker 00:
I mean, the district court could decide to raise the sentence, but we wouldn't know simply because if he took away the two and added the two, that it would still be the same number.

[00:18:52] Speaker 00:
That doesn't mean it's harmless because the defendant would have an opportunity to go back and argue for a lesser sentence, just like you'd have the opportunity to go back and argue for a higher one.

[00:19:02] Speaker 03:
Certainly, Your Honor, and I get your point, and I agree with you on that.

[00:19:06] Speaker 03:
The defendant could certainly make those arguments upon resentencing.

[00:19:10] Speaker 03:
The arguments would be based on the same facts, though, that happened at trial before the same judge that oversaw the trial.

[00:19:18] Speaker 03:
So any error in the government's view would be harmless because the facts wouldn't change.

[00:19:24] Speaker 03:
And the trial court's opinion

[00:19:28] Speaker 03:
as to all of these 3553A factors that are considered wouldn't change either.

[00:19:34] Speaker 03:
For those reasons, Your Honor, the government requests that you affirm the district court's judgment.

[00:19:42] Speaker 01:
Thank you.

[00:19:49] Speaker 02:
Your honors we maintain that there is a fundamental inconsistency between what I think we're starting from the premise is a misstatement about the safety valve if in fact the first statement.

[00:20:02] Speaker 02:
is the misstatement that the court meant to say I am applying safety valve.

[00:20:06] Speaker 02:
To use the reasoning that the court gave in that moment to deny acceptance points when in fact the court was finding that safety valve applied is a fundamental inconsistency.

[00:20:17] Speaker 02:
It's difficult if not impossible on this record to find that the defendant was, that Mr. Morales was not entitled to acceptance points.

[00:20:25] Speaker 02:
and was entitled to safety valve relief.

[00:20:29] Speaker 02:
Mr. Morales made his contrition clear beyond all possible measure.

[00:20:34] Speaker 02:
offering to plead guilty before, conceding an opening statement, taking the stand, admitting responsibility, post-sentencing, which can be sufficient to show sincere contrition.

[00:20:46] Speaker 02:
This court's decision in Armijo says as much.

[00:20:49] Speaker 02:
Post-sentencing, he also expressed tremendous remorse, explained that methamphetamine had ruined his life and he didn't want to make other addicts like him in the world.

[00:20:59] Speaker 02:
I did not understand the government's concession that in terms of acceptance the government is looking only at the count of conviction and that the district court made an adverse credibility determination as to his testimony on the convicted count.

[00:21:15] Speaker 02:
He admitted all essential elements.

[00:21:17] Speaker 02:
It's difficult to understand how the court could have been saying, I didn't believe him when he took the stand, admitted his guilt, and the jury then convicted him.

[00:21:26] Speaker 02:
The district court seems instead to have made some sub silencio weighing of the government's showing by a preponderance.

[00:21:36] Speaker 02:
But because the court then did not rule on Mr. Morales' objections to the pre-sentence report

[00:21:43] Speaker 02:
did not identify or balance the Dominguez-Casado factors, we don't know what role the district court believed Mr. Morales played in the scheme.

[00:21:53] Speaker 02:
Because we don't know that this statement of reasons is fundamentally deficient.

[00:21:58] Speaker 02:
This is not a matter of linguistic precision.

[00:22:00] Speaker 02:
This is a matter of understanding the facts that the district court found, the law it applied, and how it applied the law to those facts.

[00:22:09] Speaker 02:
And for that reason, we would ask the court to reverse.

[00:22:12] Speaker 01:
Thank you, counsel.

[00:22:13] Speaker 01:
United States versus Morales is submitted.