[00:00:00] Speaker 01:
Council for Appellate, please proceed when ready.

[00:00:04] Speaker 01:
Thank you, Your Honor.

[00:00:07] Speaker 01:
May it please the Court, Amy Cleary on behalf of Eric Romero-Loboto.

[00:00:12] Speaker 01:
I'll reserve two minutes for my rebuttal and I will watch my clock.

[00:00:15] Speaker 02:
Thank you, Counsel.

[00:00:16] Speaker 01:
This case returns to the Court after a remand following the court, the prior panel's decision to take Mr. Romero-Loboto's 924C conviction away.

[00:00:28] Speaker 01:
and it was remanded for plenary resentencing.

[00:00:31] Speaker 01:
Today, I'd like to address two of the procedural errors that occurred during that plenary resentencing, unless the court directs me otherwise.

[00:00:39] Speaker 01:
The suspicionless search condition and the district court's failure to address Mr. Romero-Levato's mitigation arguments in favor of a 204-month sentence.

[00:00:49] Speaker 01:
Beginning with the suspicionless search condition, this court's cases in the United States versus Weber, United States versus Wolfchild,

[00:00:58] Speaker 01:
direct that if a court is going to impose a supervision condition that involves a defendant's significant liberty interest, certain things need to happen.

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That requires the district court to identify on the record with record evidence why that condition is one that involves no greater deprivation than reasonably necessary.

[00:01:22] Speaker 01:
That did not occur here.

[00:01:23] Speaker 03:
Can I ask, the cases you're referring to were not just any liberty interests.

[00:01:29] Speaker 03:
We described them as the interest in avoiding unwanted bodily intrusion.

[00:01:34] Speaker 03:
There was a much higher degree of intrusiveness.

[00:01:39] Speaker 03:
Why should they apply in this context?

[00:01:45] Speaker 01:
The liberty interests in those cases was indeed, as Your Honor has indicated,

[00:01:51] Speaker 01:
individuals on supervisor lease do have remaining significant liberty interests.

[00:01:58] Speaker 01:
No Supreme Court case has indicated otherwise, nor has any case from this court.

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In fact, other courts have recognized, and I'll cite the court to United States versus Oliverus.

[00:02:08] Speaker 01:
It is not cited in our brief.

[00:02:10] Speaker 01:
I'm happy to provide the site.

[00:02:11] Speaker 01:
Where the Second Circuit found that, yes, individuals on supervision do have a remaining liberty interest, specifically under the Fourth Amendment

[00:02:21] Speaker 01:
And as such, it needs to be clearly limited and refined as necessary in the facts before it.

[00:02:28] Speaker 03:
There's no question that there's a liberty interest.

[00:02:31] Speaker 03:
I guess the question is, why is it so significant and such an intrusion onto bodily autonomy?

[00:02:40] Speaker 03:
Or why is it such an intrusion that it should be treated the same as an intrusion on bodily autonomy, which is the only context in which we've recognized this sort of heightened procedural requirement that you're invoking here?

[00:02:52] Speaker 01:
The Fourth Amendment protects individuals, among other things, home.

[00:02:57] Speaker 01:
The home is one of the most precious things that has been honored by the Supreme Court as one deserving of protection.

[00:03:04] Speaker 01:
We already have a condition in this case under the standard conditions that allows a probation officer to enter Mr. Romero-Levada's home without a warrant to do a home visit.

[00:03:14] Speaker 01:
But what we're talking about is those very special Fourth Amendment protections

[00:03:19] Speaker 01:
of someone's home, their property, their person.

[00:03:23] Speaker 00:
So in that- Can we read the prior decision by our court in upholding the special condition that was in the prior sentence as having already passed a judgment on this question of whether or not this rises to the level of the liberty interest that requires the kind of protection that you're arguing for?

[00:03:45] Speaker 01:
I do not, Your Honor.

[00:03:48] Speaker 01:
And that is because that issue, number one, was raised on plain air.

[00:03:52] Speaker 01:
So the standard of review that we're dealing with is separate.

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Additionally, and probably more importantly, the prior panel addressed this issue as a, quote, warrantless search issue.

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It never engaged in the analysis that we're asking this court to engage in regarding the suspicionless search clause.

[00:04:12] Speaker 01:
So I don't see that it is binding on this panel or that it addressed that specific issue.

[00:04:21] Speaker 01:
When the district court imposed a sui sponte suspicionless condition, it did so in a way that prohibits this court from determining if it, in fact, made a decision that was consistent with 18 USC 3583, which requires no greater deprivation than necessary.

[00:04:45] Speaker 01:
I'd like to also turn to unless.

[00:04:48] Speaker 00:
Before you turn to your next issue,

[00:04:49] Speaker 00:
So the request that you're making is merely for a vacatur of the sentence and allow for your client to be able to make an objection with respect to the suspicionless search condition?

[00:05:04] Speaker 01:
Certainly that's an option, Your Honor.

[00:05:06] Speaker 01:
We have requested in our brief that the court just strike the condition.

[00:05:09] Speaker 01:
But of course, if the court wants to remand and ask that the district court make findings

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based on objections raised below.

[00:05:18] Speaker 01:
That is appropriate as well.

[00:05:20] Speaker 02:
Counsel, is it appropriate for us to be able to discern from the record the reason that the condition was imposed?

[00:05:29] Speaker 02:
I don't think- We can discern that from the record.

[00:05:31] Speaker 02:
Does that negate your issue?

[00:05:35] Speaker 01:
No, Your Honor.

[00:05:35] Speaker 01:
Why not?

[00:05:37] Speaker 01:
This court's case law requires that to pull things from the record that are not specifically stated, it needs to be apparent.

[00:05:45] Speaker 01:
When you look at the reasons that the government provided the district court as post hoc justifications for the condition, those are rather general.

[00:05:55] Speaker 00:
Do any of our cases and Wolf Child and any of the others that talk about the requirement for there to be appropriate notice and opportunity to object

[00:06:05] Speaker 00:
contemplate a circumstance like the one Judge Rawlinson is asking about and where maybe there is, I think as was the case here, a sui sponte explanation for why the record supports the special condition.

[00:06:17] Speaker 00:
Why would we still need, under our case law, to have the notice and opportunity to object?

[00:06:25] Speaker 01:
Under United States versus why, Your Honor, if a court does not give advance notice, the defense is prejudiced in a couple ways.

[00:06:34] Speaker 01:
The defense does not come to the hearing with cases or argument able to have a conversation with the judge about why the condition should or shouldn't be imposed.

[00:06:44] Speaker 03:
But why wasn't the fact that this was imposed before advance notice?

[00:06:48] Speaker 03:
I mean, the judge imposed this condition.

[00:06:50] Speaker 03:
Then there's a vacater and remand because of a largely unrelated issue, the Hobbs Act attempt issue.

[00:07:00] Speaker 03:
And then he's back before the same judge.

[00:07:02] Speaker 03:
Shouldn't he have been on notice that that was going to be on the table?

[00:07:06] Speaker 01:
If the district court would have just removed the 924c sentence and imposed everything as it had before, I think that would probably be a tougher argument for me.

[00:07:18] Speaker 01:
But here, we have a complete do-over of the sentence.

[00:07:22] Speaker 00:
And this was, in fact, a different condition, both from what had been previously imposed and also what was suggested in the PSR, right?

[00:07:29] Speaker 00:
The pre-sentence report had a condition that

[00:07:32] Speaker 01:
Correct me if I'm wrong, but was for a search with probable cause correct and then the district court judge imposed a sentence for a condition of a suspicionless Search just a small tweak on that your honor the condition that the probation officer recommended did have a reasonable suspicion requirement So when everyone's walking into the hearing knowing that his sentence was lowered the severity was lowered we're doing a de novo resentencing and

[00:08:01] Speaker 01:
The court struck it with no notice.

[00:08:03] Speaker 01:
It's not as if the district court said, counsel, I'm contemplating striking this.

[00:08:10] Speaker 01:
Let's have argument.

[00:08:11] Speaker 01:
In fact, when the court, Sue Esponte, struck it and defense counsel attempted to make argument, the district court simply said, so noted.

[00:08:18] Speaker 01:
There was no conversation.

[00:08:21] Speaker 01:
If I could just speak very briefly.

[00:08:27] Speaker 02:
If we abided by your request and we struck that condition, then there would be no search condition imposed upon your client?

[00:08:36] Speaker 01:
No.

[00:08:36] Speaker 01:
If you struck it, there would be no search without a warrant.

[00:08:43] Speaker 00:
I don't know why we would do that as opposed to simply send it back for your client to make the objection that he sees fit and let the district court

[00:08:53] Speaker 00:
make a determination in the first instance, if we were to agree with you on the other arguments that you've made before us.

[00:08:59] Speaker 01:
And the court absolutely has that option.

[00:09:01] Speaker 01:
The court can remand it so that this could be handled with everyone on the same page.

[00:09:06] Speaker 01:
Everyone gets to make the objections.

[00:09:07] Speaker 01:
The court gets to have the argument.

[00:09:10] Speaker 01:
And whatever happens, happens at that point.

[00:09:13] Speaker 00:
The complaint is that he didn't have adequate notice and opportunity to lodge a complaint or an objection and have the court explain

[00:09:21] Speaker 00:
Specific reasons under wolf child that the condition is is justified correct correct now.

[00:09:28] Speaker 01:
So what's our standard of review?

[00:09:32] Speaker 01:
Arguably because there is no notice it could be de novo review But we've argued it under as an abuse of discretion and I and I cite United States versus Reyes from this court 18 usc 18 f4 1130 for the de novo even under a plain-air

[00:09:51] Speaker 01:
situation in that case.

[00:09:54] Speaker 02:
So it's your view that this constitutes abuse of discretion?

[00:09:58] Speaker 02:
Yes, Your Honor.

[00:09:59] Speaker 02:
And so is this subject to a harmless error review?

[00:10:04] Speaker 01:
It is.

[00:10:04] Speaker 01:
The government didn't argue it as harmless error.

[00:10:07] Speaker 01:
But there is definitely error here, Your Honor.

[00:10:10] Speaker 01:
All of the arguments that I've addressed in the appellate briefing as to why this condition should not be imposed were not available to defense counsel below.

[00:10:20] Speaker 02:
If we were to determine that there is little likelihood that the outcome would be different, would that be harmless error?

[00:10:33] Speaker 01:
I think this court's case law, and I cite United States versus Hammons, that even in that case, if a month would have been different,

[00:10:42] Speaker 01:
for incarceral term to send it back, would that be different enough?

[00:10:46] Speaker 02:
But if we were persuaded that the condition would not be changed on remand, would that be harmless error?

[00:10:57] Speaker 01:
I don't know, Your Honor.

[00:10:58] Speaker 01:
I think that there is an argument that that could be true.

[00:11:02] Speaker 01:
But given that none of the arguments were made below, we also know that, sadly, because of the passing of the district court judge, we are going to be in front of another judge.

[00:11:13] Speaker 01:
So we don't know that this would be exactly the same.

[00:11:16] Speaker 01:
And as to the reasonable suspicion condition, the district court did not say, as it did with its sentence, that I don't see if this comes back that I would change anything.

[00:11:26] Speaker 01:
That didn't occur with the search condition.

[00:11:28] Speaker 02:
All right.

[00:11:28] Speaker 02:
Thank you, counsel.

[00:11:29] Speaker 02:
You've exceeded your time, but we'll give you a minute for rebuttal.

[00:11:32] Speaker 02:
Thank you, your honors.

[00:11:41] Speaker 04:
Good morning.

[00:11:42] Speaker 04:
May it please the court?

[00:11:44] Speaker 04:
Peter Walkingshaw on behalf of the United States.

[00:11:47] Speaker 04:
The district court in this matter has imposed the special condition of supervised release permitting suspicionless searches of the defendant's person, home, and automobiles twice now.

[00:11:58] Speaker 04:
It need not do it a third time.

[00:12:00] Speaker 04:
Defendant was given more than adequate opportunity to contest this condition.

[00:12:05] Speaker 02:
Where was the notice, counsel?

[00:12:07] Speaker 02:
Opposing counsel said there was no notice.

[00:12:09] Speaker 02:
So we're in the record.

[00:12:11] Speaker 02:
Can we go to verify that there was notice of this condition given to the defendant?

[00:12:16] Speaker 04:
Well, we have moved for judicial notice, Your Honor, of this court's prior proceedings, as the court as well.

[00:12:22] Speaker 02:
Did that address the suspicionless search, though?

[00:12:25] Speaker 04:
It did, Your Honor.

[00:12:26] Speaker 04:
And I will confess to a little bit of confusion.

[00:12:28] Speaker 04:
I'm not aware of any way in which the original search condition imposed at the first sentencing differs from the one imposed

[00:12:38] Speaker 04:
on appeal here.

[00:12:40] Speaker 04:
And so this court's affirmance of that condition, admittedly on plain error review, but its affirmance of that condition confirms that that condition was within the range of reasonable conditions that the district court could impose here.

[00:12:56] Speaker 03:
And even if we don't think that, I know you've made an argument that there's a law of the case that binds us, but even if we don't accept that, I take it your view is that he was at least on notice that

[00:13:08] Speaker 00:
The same can be exactly the same condition could be imposed on the second sentencing that's correct I'm not sure how that the PSR Recommended something different and then at the sentencing the judge it removed the reasonable the probable cause Provision and imposed the sentence so I mean it was different what he had been given notice about in the PSR was that there would be the special condition for a search with with probable cause and

[00:13:37] Speaker 04:
The oh well two points your honor first.

[00:13:39] Speaker 04:
I believe it was with reasonable suspicion not with probable cause okay more to your honor's point I don't know that the probation department's issuance of a PSR can take a defendant off notice that a district court is contemplating imposing a condition of supervised release that it had already imposed a

[00:14:01] Speaker 04:
And this court had affirmed on appeal.

[00:14:03] Speaker 04:
I believe when the district court imposed the condition, what it said was, and I'm paraphrasing here, was I believe that this is the condition that the Ninth Circuit affirmed or that I previously imposed.

[00:14:14] Speaker 04:
So there's really no question that the defendant was given affirmative notice that the district court was contemplating this because it imposed this exact condition.

[00:14:24] Speaker 04:
And I'm not aware of any authority.

[00:14:26] Speaker 04:
That the probation department which while an arm of the district court is not the district court itself could somehow take the defendant off notice That this was a condition that could be reasonably applied so your argument essentially is that there was a prior sentence with this condition that was ultimately

[00:14:47] Speaker 00:
sent back to the district court for resentencing on a separate issue.

[00:14:50] Speaker 00:
Correct.

[00:14:51] Speaker 00:
But he should remain on notice about all the other special conditions that may be imposed.

[00:14:57] Speaker 04:
Correct, Your Honor.

[00:14:58] Speaker 04:
I think that's true for a few reasons.

[00:14:59] Speaker 04:
One, just the fact of this court's affirmance itself.

[00:15:03] Speaker 04:
I'm not sure how the district court could honor this court's order.

[00:15:08] Speaker 04:
without reaffirming addition.

[00:15:10] Speaker 04:
I suppose it could have changed its mind on plenty of resentencing, but the remand order, the opinion that this court set forth, it deliberately decided not to touch the substantive reasonableness of- But it was on plain error review.

[00:15:24] Speaker 04:
That is correct, Your Honor.

[00:15:25] Speaker 04:
However,

[00:15:27] Speaker 04:
If it didn't think it was something that it could reasonably address, that if plenary sentencing was something that would basically obviate the issue, it could have declined to address the issue in the opinion.

[00:15:39] Speaker 04:
And we know that because the prior Plano declined to address the issue of the substantive reasonableness of Mr. Romero-Loboto's sentence.

[00:15:49] Speaker 04:
And so the district court is bound by the orders of this court.

[00:15:52] Speaker 04:
And I'm not sure how else it could have honored the order on remand

[00:15:56] Speaker 00:
But so now I think what you're arguing is that it was required to impose this special condition.

[00:16:01] Speaker 00:
I don't think that's right Well your honor certainly within the reasonable It's certainly within the reasonable range of options available district court I think the fact that again those are very different things arguing that that the prior panel's decision bound the district court to To impose the same special condition to oh, but it had the opportunity to

[00:16:24] Speaker 00:
To do the same thing and therefore the defendants on notice are two very different things and and I think you're asking us to make a lot of assumptions sort of in in agreeing with your position that both notice was given and now I suppose you're arguing that the district court had no choice but to impose this I take your point your honor perhaps that was overstating the issue perhaps

[00:16:47] Speaker 04:
that was overstating the issue.

[00:16:48] Speaker 04:
I do not think that the district court was obligated to reimpose this condition.

[00:16:52] Speaker 04:
But I do think that this court's affirmance puts the defendant on notice that this is a condition that could reasonably impose.

[00:16:59] Speaker 02:
Counsel, may I ask you about that?

[00:17:00] Speaker 02:
So in our prior ruling, we said we were reviewing warrantless searches.

[00:17:07] Speaker 02:
Is that the same as a suspicionless search?

[00:17:10] Speaker 04:
Well, Your Honor, I think it's important to note that when one.

[00:17:14] Speaker 02:
Could you answer my question first?

[00:17:16] Speaker 02:
is a warrantless search the same as a suspicionless search.

[00:17:20] Speaker 04:
Not necessarily, Your Honor.

[00:17:21] Speaker 02:
OK.

[00:17:22] Speaker 02:
So that's what we ruled.

[00:17:23] Speaker 02:
We ruled on warrantless searches.

[00:17:25] Speaker 02:
So how did that give notice of a suspicionless search condition?

[00:17:30] Speaker 04:
Well, Your Honor, the way that this condition was litigated in the prior appeal was explicitly with reference to the lack of a limiting phrase that the searches could only be conducted with reasonable suspicion on the part of the probation officer or someone under their direct supervision.

[00:17:48] Speaker 04:
That also is the phrase that was struck here.

[00:17:51] Speaker 04:
The current condition actually has no reference one way or another to reasonable suspicion.

[00:17:57] Speaker 04:
And the authority that the prior panel of this court cited, United States versus Betz, explicitly dealt with a condition which this court said was materially indistinguishable.

[00:18:08] Speaker 04:
That condition concerned warrantless searches with or without probable or reasonable cause.

[00:18:17] Speaker 00:
You a sort of a practical question.

[00:18:19] Speaker 00:
Do you agree that a limited remand is appropriate in this case under our decision in Montoya?

[00:18:24] Speaker 00:
We have agreed to that you're okay, so this is going back on the limited remand under Montoya correct What what's the problem with sending this back for?

[00:18:35] Speaker 00:
The district court to state on the record the basis for the special condition that's being imposed and allow allowing the the defendant here to lodge an objection and

[00:18:46] Speaker 04:
Well, Your Honor, it is going back on what we have read as a limited remand.

[00:18:51] Speaker 04:
But in order for the court to vacate and reverse other portions of the decision, it needs to have a legal basis to do so.

[00:18:58] Speaker 00:
Well, I mean, the legal basis would be that there was an adequate notice.

[00:19:01] Speaker 04:
Certainly, yes.

[00:19:02] Speaker 04:
And we disagree with that, Your Honor.

[00:19:04] Speaker 04:
The problem with that is, given that this exact same condition was previously imposed, previously affirmed,

[00:19:13] Speaker 04:
and sent back to the district court on a totally unrelated issue, the defendant was given adequate notice that the condition might be reimposed.

[00:19:25] Speaker 04:
Unless there are further questions, I'm happy to yield the balance of my time to the court.

[00:19:29] Speaker 02:
It appears not.

[00:19:29] Speaker 02:
Thank you, counsel.

[00:19:30] Speaker 02:
Thank you.

[00:19:31] Speaker 02:
Rebuttal, let's have one minute.

[00:19:38] Speaker 01:
I would like to address whether Mr. Romero-Loboto had sufficient notice.

[00:19:43] Speaker 01:
In cases where this court has found there was sufficient notice, it was because it was in the party's plea agreement, or it was discussed by the court ahead of time specifically, or it was part of an original sentence.

[00:19:56] Speaker 03:
This was discussed by the court ahead of time specifically.

[00:19:58] Speaker 03:
It was actually imposed by the court ahead of time, right?

[00:20:03] Speaker 01:
It was imposed.

[00:20:05] Speaker 01:
It wasn't discussed.

[00:20:06] Speaker 01:
But that entire sentence was redone under a plenary sentencing.

[00:20:11] Speaker 01:
The court unbundled everything.

[00:20:12] Speaker 03:
Right.

[00:20:13] Speaker 03:
But if the defendant is, I mean, the point of notice is the defendant is supposed to be thinking, OK, well, what might the court do?

[00:20:19] Speaker 03:
He doesn't have notice that the court might do exactly the same thing that it had just done?

[00:20:25] Speaker 01:
I think under the totality, Your Honor, he would not.

[00:20:28] Speaker 01:
His convictions decreased substantially by removing the mandatory minimum 10-year sentence.

[00:20:34] Speaker 01:
That's a hefty part of his sentence.

[00:20:36] Speaker 01:
So he's walking into sentencing with less criminal liability

[00:20:40] Speaker 01:
and less criminal exposure and a pre-sentence report that recommended reasonable suspicion that the government didn't argue against or suggest otherwise.

[00:20:57] Speaker 03:
Year 29 when the when the court announces the that it's striking the based on reasonable suspicion Council objects he says I understand the court's ruling there I would just like to lodge an objection to that so that the record is clear and

[00:21:13] Speaker 03:
But he doesn't say, I had no idea you were about to do this.

[00:21:17] Speaker 03:
I would like some more time to develop my objection or explain why I think this is wrong.

[00:21:24] Speaker 03:
Does that have any significance for our review in your view?

[00:21:27] Speaker 01:
No, Your Honor.

[00:21:28] Speaker 01:
Under this court's decision in US versus Reyes, the district court in that case said almost the same exact language that this court did by saying so noted, which this court interpreted as conversations over.

[00:21:42] Speaker 01:
In that case, they applied de novo review, even though the government argued it was plain error to not say, I didn't get sufficient notice, because of the way that the district court responded to the defendant's objection.

[00:21:55] Speaker 02:
Thank you, counsel.

[00:21:56] Speaker 01:
Thank you.

[00:21:57] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:21:59] Speaker 02:
The case just argued is submitted for a decision by the court.