[00:00:02] Speaker 00:
Good morning, Your Honors. Armella Staley and Gomo appearing on behalf of the appellant, Pablo Franco. I would like to reserve about three minutes for rebuttal and we'll watch the clock.

[00:00:12] Speaker 00:
This appeal can be resolved on just one issue by following the plain language of 3582 C1B. 3582 C1B states that a court may not modify a term of imprisonment once it has been imposed except in limited circumstances that do not include reconsideration.

[00:00:32] Speaker 03:
A term of imprisonment... Why would we go right to there? I'm sorry, Your Honor? Why would we go right to that part of the statute? It seems to me that if we take the statute, 183582B, there are three ways that one can...

[00:00:57] Speaker 03:
not have a final judgment.

[00:01:00] Speaker 03:
One is modifying it pursuant to subsection C. The second is correcting it pursuant to rule 35. And the third is appealing and modifying outside the guideline range pursuant to another section.

[00:01:19] Speaker 03:
So given what it says in B1, It seems to me that one is now talking about compassionate release, correct? Correct, Your Honor. And that goes under B, if you're going in this section, B1, modified pursuant to subsection C. And if you go down to subsection C, it talks about modifying it for, if you will, the release, compassionate release, which would be A.

[00:01:53] Speaker 03:
Or B, rule 35.

[00:01:57] Speaker 03:
Or C, two. You can go under two.

[00:02:01] Speaker 03:
So if you're doing that, and you're only under C, and you're only under C1A, where do you get B involved?

[00:02:13] Speaker 00:
Well, Your Honor, this case began with a time-served term of imprisonment that was imposed by the court.

[00:02:23] Speaker 03:
It began with a time served only because the judge was giving compassionate release.

[00:02:30] Speaker 00:
Correct, Your Honor.

[00:02:31] Speaker 03:
The judge was not imposing a sentence.

[00:02:34] Speaker 03:
The judge was not sentencing.

[00:02:37] Speaker 03:
All he was doing was giving compassionate release.

[00:02:42] Speaker 03:
And under the old statute under compassionate release, we wouldn't even be here because usually the Bureau of Prisons had to bring this motion. Now, based on Congress's very smart idea, they let the defendant bring it. But now we're still under C1A, and I don't understand why B gets involved at all.

[00:03:10] Speaker 00:
Understood, Your Honor. And so the point that I was trying to make is that a term of imprisonment remains a term of imprisonment regardless of the process by which the court arrived there. And so the reason why we began or I began with the term term of imprisonment is because Congress chose that specific language to let us know what could or could not be modified. I understand, Your Honor, and the order in which you're going through 3582 is

[00:03:37] Speaker 03:
Well, what I'm trying to do is follow the statute because you're arguing a statutory interpretation, and I'm trying to follow the statute the best I can.

[00:03:47] Speaker 00:
And we are trying to...

[00:03:50] Speaker 00:
focus on the term of imprisonment, what ultimately happened, rather than the process, because we don't believe that 3582 only applies to the initial sentence.

[00:03:59] Speaker 03:
It also applies to the time served term of imprisonment that the court set when she granted... Why, given that the term of imprisonment that was imposed at that time was not a sentence at all. It was, in fact, nothing more than the court... Using the exact, if you will, paragraphs that I've suggested to give the defendant, your client, compassionate release.

[00:04:32] Speaker 00:
And again, Your Honor is speaking to the process. And so we're saying that the term of imprisonment applied regardless. And we agree that there are those three ways. There's Rule 35.

[00:04:41] Speaker 00:
which has the strict 14-day jurisdictional limit. There is an appeal, which the government did not file here, not an appeal of the court's confession of release letter.

[00:04:51] Speaker 03:
The government did appeal.

[00:04:53] Speaker 00:
They appealed the motion for reconsideration. They attempted to appeal by filing a reconsideration motion. However, that's different than appealing the judges.

[00:05:02] Speaker 01:
So, counsel, in Rivera-Rodriguez, we said... Because we do not regard the district court's compassionate release as a sentence, we do not question its authority to reconsider the order. How does that statement affect your argument?

[00:05:19] Speaker 00:
So, Your Honor, in Rivera Rodriguez, sort of the inverse happened in that the district court granted the compassionate release order and then denied the government's reconsideration motion and then the government appealed. In just one paragraph, they do address what the 11th Circuit decided, which is that 3582 has narrow exceptions.

[00:05:40] Speaker 00:
to when a term of imprisonment can be modified. But the First Circuit's reasoning in Rivera-Rodriguez, it goes off of the false premise that a sentence reduction is not a term of imprisonment.

[00:05:51] Speaker 01:
So obviously you just think they were wrong.

[00:05:54] Speaker 00:
We think they were wrong. We would side with the 11th Circuit, and we would also side with this court's decision in Barragan-Mendoza.

[00:06:02] Speaker 03:
If I read our court's decisions, I find that... Number one, the government doesn't need to file a motion for reconsideration until they can file it, but up to the point where they have to appeal. That's what we see when the cases which we have. I mean...

[00:06:24] Speaker 03:
We see that they have that long. That's Belgrade, United States versus Belguard. Sorry, I said grade. I don't know. It's guard. So motion for consideration is timely and filed.

[00:06:40] Speaker 03:
And we see we read our cases.

[00:06:46] Speaker 03:
which say in Bryant, USB Bryant 114, fed forth that this is not a sentencing proceeding.

[00:06:56] Speaker 03:
It has nothing to do with sentencing.

[00:06:59] Speaker 03:
Dillon said it before in the United States Supreme Court, but Bryant was pretty clear our court has controlled us by saying it's not a sentencing proceeding.

[00:07:10] Speaker 03:
So again, I'm trying to figure out how I can get to your argument, and I'm trying to do it under statutory interpretation terms.

[00:07:19] Speaker 00:
Sure, Your Honor. So if I could address Barragan Mendoza, Bellegarde, and Dillon, as the court just cited. So Barragan Mendoza had a similar situation to what we have here, in that the government filed a reconsideration motion five days after the sentence or the term of imprisonment had been imposed. The problem was that the court didn't set a hearing until two months later, and so it modified its term of imprisonment outside of the 14-day jurisdictional limit.

[00:07:55] Speaker 03:
But again, you're trying to lump all these cases together, and what I'm trying to say is, as I read this statute, it's a matter of statutory interpretation, and I've got to read each motion as it is.

[00:08:09] Speaker 03:
One can be one for compassionate release.

[00:08:14] Speaker 03:
One can be one for Rule 35, which deals with the sentence itself. Right in Rule 35, it talks about that.

[00:08:22] Speaker 03:
So again, I'm trying to figure out where you find the statutory interpretation language that you want to make for this argument.

[00:08:33] Speaker 00:
It's still within 3582, because as you said, 3582. So 3582 B starts with notwithstanding the fact that a sentence to imprisonment can subsequently be modified by a provision such as compassionate release, a judgment of conviction that includes such a sentence constitutes a final judgment for all purposes. That means that that is not an initial sentence, right? It's a compassionate release term of imprisonment, but it still constitutes a final judgment. The court then said in Pena that any exception should be narrowly construed, and the court simply cannot change its mind about appropriateness of the term of imprisonment after the fact.

[00:09:11] Speaker 00:
And so even if we want to adopt the government's sentence modification or the court's sentence modification argument, versus the initial sentence, Congress made it crystal clear that you cannot modify a term of imprisonment once it's been imposed except in limited circumstances. Reconsideration is not one of those circumstances. So does Rule 35 apply here? Rule 35 does apply here. Why does it apply? Because it's a term of imprisonment.

[00:09:36] Speaker 03:
But just a minute. Rule 35 is a different way to modify.

[00:09:41] Speaker 00:
It's a different way to modify that has a strict jurisdiction.

[00:09:43] Speaker 03:
It's a different way to modify, and when you read it itself, it says it's a sentence, and it's only 14 days after the sentence. And what we're really talking about here is the sentence as given. Compassion release is not a sentence. Bryant says it isn't. It's just a modification that you can do because of compassion.

[00:10:05] Speaker 00:
Well, and that's not before, Your Honor, because it was not addressed on appeal. The government did not appeal whether or not that's a sentence and whether or not the court's underlying compassionate release order was correct. The judge modified that term of imprisonment 23 days after having sentenced the time served term of imprisonment, that's outside of the 14-day jurisdictional limit. If Rule 35 does not apply in this context, we would still win because then the only legal remedy the government would have would be an appeal, and they did not file a notice of appeal either to a cross-appeal on our notice of appealing the court's reconsideration grant or the underlying compassionate release order.

[00:10:44] Speaker 00:
And so we go back to that 14-day jurisdictional limit when we look at Barragan and when we look at Pena, regardless of how the court set that time-served term of imprisonment on Mr. Franco back in September 2024.

[00:10:57] Speaker 01:
So, Council, your time is up, but we've asked a lot of questions. We'll give you the full three minutes for your rebuttal. And if you decide that even though it's rebuttal, you want to address arguments that you didn't address in your opening, you may do that, even though that wouldn't technically be rebuttal.

[00:11:19] Speaker 00:
Thank you, Your Honor.

[00:11:19] Speaker 01:
Thank you.

[00:11:21] Speaker 01:
We'll hear from the government.

[00:11:30] Speaker 02:
Good morning, Your Honors. May it please the Court. Andrew Chang for the United States.

[00:11:36] Speaker 02:
I want to address both jurisdiction and the merits, but because my friend on the other side mostly talked about jurisdiction, I will start there. The defendant's main argument is that because they say that compassionate release is actually an imposition of a new sentence, they claim that, therefore, any changes to that would have to be channeled through Rule 35's time requirements. But all of the evidence shows that compassionate release is not the imposition of a new sentence, as Judge Smith said.

[00:12:07] Speaker 03:
Well, it's not necessarily evidence. It's case law.

[00:12:11] Speaker 02:
It's case law and statute. And let's just start with Rule 35 itself. If you look at Rule 35, the plain text says that it only applies to an oral announcement of a sentence. And in this case, there was no oral announcement of a sentence. The district judge summarily granted release through a minute order. And that's, you know, sort of consistent with what compassionate release is. There's no right to a hearing. The defendant does not have the right to be present. And the judge is not reevaluating the 3553A factors anew to try to impose a new sentence.

[00:12:44] Speaker 03:
Well, they have to evaluate the 3553A factors.

[00:12:47] Speaker 02:
Of course, Your Honor. But that comes at the very, very end of the process. Because compassion release is a very, very narrow procedure where first the sentencing commission has to decide which small class of prisoners are entitled to this type of relief. And then the judge has to go and look at whether the defendant meets the exacting criteria imposed by the sentencing commission. And then only then is there a 3553A analysis. So that is not, you know, a sentencing. And if you go back to the, you know, the main statute that we're talking about here, 3582C, it talks about compassionate release in terms of a modification to a imposed term of imprisonment.

[00:13:30] Speaker 02:
Congress could have written this to say the imposition of a new term of imprisonment, but Congress didn't write it that way, and for good reason. The reason is the phrase imposed term of imprisonment has a very specific meaning in federal sentencing law. Just go up to 3582A, and it will describe an imposed term of imprisonment as a run-of-the-mill sentencing under the 3553A factors, and that's just not what compassionate release is. And then

[00:14:01] Speaker 03:
Let me ask you a question. I know where you're going with your argument. What is your best authority, I guess, for the position that 18 USC 3582 C1B does not apply here?

[00:14:18] Speaker 02:
I think I would just point the court towards all the cases that we cited in page 20 of our appellate brief. 3582 C1B talks about...

[00:14:31] Speaker 03:
Best authority.

[00:14:32] Speaker 02:
Best authority would be United States versus Dillon.

[00:14:35] Speaker 03:
Okay.

[00:14:37] Speaker 02:
Bryant.

[00:14:38] Speaker 03:
That's our recent case.

[00:14:40] Speaker 02:
Our recent case would be United States versus Bryant. Bryant cited Dillon. Of course, Dillon dealt with another sort of related sentencing reduction provision in C-2.

[00:14:52] Speaker 02:
But Bryant was squarely a compassionate release case. And it talked about, it cited Dillon and said very plainly, compassionate release is not a sentence. It is a sentence modification.

[00:15:04] Speaker 03:
So now if we get past this argument, the last argument that the council made is that you can't even talk about the thing that the district court did because you didn't appeal it. That was their last argument.

[00:15:18] Speaker 02:
Yes, Your Honor.

[00:15:19] Speaker 03:
Let's have your response to that.

[00:15:22] Speaker 02:
Well, my response to that would be, what would we be appealing? Because what the judge did, ultimately, even though we don't necessarily agree with the judge's reasoning, is that the judge first granted compassionate release and then granted our motion to reconsider.

[00:15:41] Speaker 02:
We want that grant of reconsideration to be upheld. We don't want to appeal that. Only the defense wants to appeal that. And the cases are very clear that If a party doesn't cross appeal, or I'm sorry, if a party does not need to cross appeal, if it wants to affirm an order on alternative grounds, even if that party ends up attacking the reasoning of that order.

[00:16:10] Speaker 02:
That's the Supreme Court opinion of Jennings versus Stevens. That's cited in page 20 of the defendant's own reply brief. And we've cited a plethora of Ninth Circuit cases on page 28 of her answering brief.

[00:16:23] Speaker 02:
So my response to that would be no appeal was necessary. The judge granted our motion for reconsideration. It is the defense who is appealing and we are trying to defend that final order even if we are asking the court to affirm on different reasons.

[00:16:40] Speaker 03:
And as I understand that the alternative reasons are that what the district court did was just wrong.

[00:16:47] Speaker 02:
That's what we believe your honor. We are asking the court to affirm the grant of reconsideration because we believe the judge made a baseline legal error in this case. Throughout these proceedings, both the judge and the defense have portrayed the government's actions here in quite a negative light. Judge Oda criticized the government for being cruel in trying to undo her grant of reconsideration, and she also criticized the government for purportedly sandbagging the court with untimely information after the release decision was made.

[00:17:21] Speaker 02:
But respectfully, Your Honors, I just don't think that is a fair or accurate characterization of the record.

[00:17:28] Speaker 02:
I think what the record shows in this case is that Judge Oda, in violation of the law, granted release to a dangerous inmate on prohibited grounds that no party supported in litigation or even anticipated.

[00:17:43] Speaker 01:
But I mean, regardless of your characterization of what the district court did, I mean, when one looks at what the district court said, among other things she said, but for me, the reason I'm finding this, that is the reconsideration, is either clear error or manifest injustice because for all the reasons that made me grant this to begin with, no longer exist for the court. So even if they were never there, the court recognized that, among other things, your gang evidence was compelling, right?

[00:18:18] Speaker 01:
She did do that. She did do that. So, I mean, she listened to what you said.

[00:18:24] Speaker 01:
She understood that the age part was wrong, even though I understand your view that age is never relevant. But she looked at the gang evidence, the transcripts, the affidavits of the agents, and basically she agreed with you that this is not somebody who's entitled to compassionate release, including because of the gang affiliations or the potential gang affiliations.

[00:18:50] Speaker 02:
That's correct, Your Honor. That's correct. And the court can affirm for those reasons.

[00:18:57] Speaker 03:
Let's just stop there. Putting aside the BOP report and the phone call, was the district court's misunderstanding about Franco's age enough to grant reconsideration?

[00:19:14] Speaker 03:
Well, I mean... I mean, if we get so far as to say we're going to go to reconsideration, we're going to apply the civil way to reconsider.

[00:19:26] Speaker 03:
We're not going to allow you to raise arguments or present evidence that you could have done the first time.

[00:19:34] Speaker 03:
Only can be new evidence, which is the civil standard, which was argued to me all the way along.

[00:19:42] Speaker 03:
I'm saying, is the district court's understanding about the age enough to grant the reconsideration?

[00:19:50] Speaker 02:
I think it was enough because the district court made age such a prominent factor in release that because he was not the age that the district court thought, that was a clear error.

[00:20:07] Speaker 02:
But, you know, because the judge made that such a prominent part of her release order, I think that it was a clear error that warrants reconsideration.

[00:20:15] Speaker 03:
So do we even need to address the BOP report and phone call?

[00:20:21] Speaker 03:
If we go there. I mean, I realize your first argument is we don't even need to talk about this.

[00:20:28] Speaker 02:
That's right.

[00:20:28] Speaker 03:
Bryant is on all fours with this case. You can't do it for age. You can't do it for rehabilitation. You're done. That's what Bryant said.

[00:20:39] Speaker 02:
That is the government's position.

[00:20:40] Speaker 03:
And I realize that, but supposing we didn't get that because there is, after all, a...

[00:20:52] Speaker 03:
I'm going to use the French word, melange. There's a mixing of age and rehabilitation in the whole. It's not one or the other, even though they laid it out that way in Bryant.

[00:21:05] Speaker 03:
I guess that's the thing that worries me. Do I need to go to reconsideration for the BOP report? Do I need to go to the phone call? Can the age be enough if we get that far?

[00:21:21] Speaker 02:
Well, let me say, I want to address your question, but let me just say what does worry the government. What worries the government is that if the court does not address the legal error that the government is trying to present to the court, then the same type of legal error could happen again in that courtroom and in other courtrooms, and the type of Release that endangered the public in this case could happen again, so that is the government's concern, and that is why the government is. pushing hard for the Court to address this legal error question that wasn't really ever addressed or acknowledged below, but to answer your question good Smith, you know the judge.

[00:22:02] Speaker 02:
granted reconsideration because of age, because of the phone call, because of the BOP report. I think that if that's the way the court wants to affirm, it has to consider all of those things because that is what the judge did in granting the motion for reconsideration.

[00:22:18] Speaker 01:
All right. Thank you.

[00:22:20] Speaker 02:
Thank you. Thank you, Your Honor. And we ask the court to affirm.

[00:22:32] Speaker 00:
Thank you, Your Honor. What worries the defense is that a judge can modify a term of imprisonment based on compassionate release, Rule 35B, retroactivity, and then at any point after that, if the government finds or goes fishing for additional new information outside of that 14-day jurisdictional limit, they could modify that unencumbered with new information.

[00:22:56] Speaker 03:
How long will they have to modify that?

[00:22:59] Speaker 00:
Well, if we were to follow the plain language of 3582, it would only be 14 days.

[00:23:04] Speaker 03:
Yeah, if we go under Rule 35B, we got 14 days. But if we don't go under Rule 35B, they have how long? There would be no limit. Yeah, no, there is a limit. They have to bring the motion for reconsideration before the time for appeal goes. That's exactly what Bellegarde says.

[00:23:22] Speaker 00:
Your Honor, and then I did want to talk about Bell Guard just to point out that Bell Guard dealt with a motion to reconsider a motion to dismiss the indictment. And there the government did file an appeal within the 30 day period. And so, again, I do think the fact that the government did not file an appeal of either the judge's underlying compassionate release order or a cross appeal to our. appeal on the reconsideration grant is significant. I'll note that in Barragan-Mendoza, the same thing happened. The government did not file a cross-appeal there.

[00:23:53] Speaker 00:
And so, Your Honors, this court said that it lacked jurisdiction to change It's sentenced to the legal sentence that the government wanted, even though it was late. They said they could only rule on the government's Rule 35 motion and couldn't address the legal versus illegal sentence, which the government is trying to promote here because they hadn't filed a notice of appeal. Also, just going back to Dylan, I know there's much discussion about Dylan, but Dylan didn't address any of the issues that are being raised here. They discussed the process and the mechanism for retroactive sentence reduction, not the authority of the district court and not the jurisdiction a district court has in this scenario.

[00:24:32] Speaker 03:
But I think you're misreading Dylan. And even if you're not, doesn't Bryant really preempt what we three can do?

[00:24:42] Speaker 03:
I mean, USB Bryant is about compassionate release. It's dead on. It may be wrong. I'm not saying it's right. It may be wrong. But it does say exactly what we can do and we can't do. So even though you might argue Dillon doesn't exactly apply, Bryant applied Dillon and did it to exactly our situation.

[00:25:05] Speaker 00:
Bryant applied Dillon only in trying to describe that there's fundamental differences between sentencing and a sentencing modification, but it did not change the fact that a court may not modify a term of imprisonment once it's been imposed. In fact, Bryant cites that language. in its opinion. We'd raised several factors in the compassionate release order outside of youth and rehabilitation. There was also service to the BOP. There was also information about his medical circumstances. There was also other requests for home confinement and location monitoring. And so it was a combination of circumstances case that we presented in compassionate release that was not in Bryant.

[00:25:41] Speaker 00:
Bryant was primarily raised on youth. And I agree with your honor that that's if we were to even get to the merits. Again, we don't believe we need to get to the merits and even Bryant applies in this situation. This is essentially a backdoor way to piggyback on defense counsel's appeal to now argue that the judge's underlying order was wrong when no appeal was filed and no specific argument was made with regard to whether Rule 35 applies, Rule 59, or the law of the case doctrine. All right.

[00:26:09] Speaker 01:
We thank counsel for their arguments. The case just argued is submitted.