[00:00:00] Speaker 01:
Good morning, everyone.

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

[00:00:04] Speaker 01:
We're delighted to be sitting here in Pasadena, and we are also delighted to have sitting with us Judge Liberty from the District of Arizona.

[00:00:12] Speaker 01:
Welcome and thank you, Judge Liberty.

[00:00:14] Speaker 03:
Thank you, Judge Rawlinson.

[00:00:16] Speaker 01:
The cases will be called in the order listed on the docket.

[00:00:20] Speaker 01:
The first five cases, Negosian versus Bondi, Gallardo Jimenez versus Bondi, Coach Charles versus Bondi, King versus Perry,

[00:00:30] Speaker 01:
in United States versus Ditto have been submitted on the briefs.

[00:00:34] Speaker 01:
The first case on calendar for argument is United States versus Gonzalez Lopez.

[00:00:39] Speaker 01:
Counsel for appellate, please approach and proceed.

[00:00:49] Speaker 00:
Good morning, Your Honors.

[00:00:51] Speaker 00:
Zandra Lopez of the Federal Defenders.

[00:00:52] Speaker 00:
On behalf of Mr. Gonzalez Lopez, I'll be watching the clock and trying to reserve two minutes of my time for rebuttal.

[00:00:58] Speaker 00:
All right.

[00:00:59] Speaker 00:
So we raised several sentencing errors in our appellate briefs.

[00:01:04] Speaker 00:
Today, for the sake of time, I'll be focusing on one.

[00:01:07] Speaker 00:
And that is that the district court relied on unnoticed prior cases as justification, stating that this court affirms 60-month sentences in two or three

[00:01:21] Speaker 00:
that there were no cases like this one.

[00:01:23] Speaker 00:
Because there was no notice, there was no opportunity to point out the inaccuracies and to also let the court know that, in fact, those cases were not like this one.

[00:01:39] Speaker 02:
What is my standard of view as I relate to that particular case, that particular issue?

[00:01:46] Speaker 00:
Sure, Your Honor.

[00:01:47] Speaker 00:
We believe it's de novo.

[00:01:48] Speaker 00:
We believe we properly preserved it below.

[00:01:51] Speaker 02:
There was an objection as to the disparity analysis, but even if... Well, it's an abuse of discretion in general, but if you don't raise it below that these were cases that you'd never had any part of, then it's plain error.

[00:02:09] Speaker 00:
Your honor, yes, like I indicated, I do believe that we did preserve it, but even if the court finds that we didn't, I think we satisfy all prongs of the plain air analysis.

[00:02:21] Speaker 02:
Well, I guess the next question I would say is, you know, we've got two types of air, procedural air, which we could talk about, or we could talk about just substantive unreasonableness.

[00:02:36] Speaker 02:
Is this procedural air?

[00:02:38] Speaker 00:
This is procedural error.

[00:02:39] Speaker 02:
How can it be procedural error when you yourself presented cases to the court and didn't give any facts about those cases?

[00:02:52] Speaker 02:
In fact, I wrote down the things that you said about them.

[00:02:56] Speaker 02:
You gave 10 cases, four cases you said time served with substantial risk, three cases defled from law enforcement, time served, three cases of material witness concealed in a vehicle.

[00:03:13] Speaker 02:
That's not much there.

[00:03:15] Speaker 02:
Yet this now you're saying that the judge shared because he didn't tell you all about those cases that you That you now think he made a procedural error Considering yes, I respectfully your honor and in Council below did provide case names case numbers and actual factual scenarios Not only that they were not only the time minute the fact that you gave numbers

[00:03:43] Speaker 02:
You gave names.

[00:03:45] Speaker 02:
I read what you said about those cases in each one.

[00:03:49] Speaker 02:
Four cases, time served with substantial risk.

[00:03:52] Speaker 02:
That's what you said.

[00:03:53] Speaker 00:
Actually, Your Honor, ER 3032, it provides information like flight from law enforcement and driving into... Well, that was one of the cases.

[00:04:05] Speaker 02:
The defendants fled from law enforcement.

[00:04:07] Speaker 02:
They got time served.

[00:04:09] Speaker 00:
And it says, uncoming traffic on a pedestrian sidewalk, property damage, absconding from law enforcement, and criminal history category three.

[00:04:18] Speaker 00:
So there were actually specific factual information provided in those cases.

[00:04:24] Speaker 02:
Well, let's go on one further then.

[00:04:27] Speaker 02:
You tried to say you gave enough so that they couldn't do that.

[00:04:32] Speaker 02:
But I didn't get anything here that said the court chose the sentence.

[00:04:37] Speaker 02:
relying on facts about this, erroneous facts about this defendant.

[00:04:44] Speaker 02:
The only kind of procedural error I would find is if the court chose this sentence relying on erroneous facts about this defendant.

[00:04:54] Speaker 02:
There wasn't anything about that.

[00:04:56] Speaker 02:
In fact, the facts were stipulated by the parties.

[00:05:03] Speaker 00:
Rule 32 and this court in Bacardi, Gary, Woolworth, Gomez require that there be a disclosure of all relevant information that affects the defendant's sentencing.

[00:05:16] Speaker 00:
And in this case, that is particularly important because what the court was doing was an unwarranted disparity analysis.

[00:05:26] Speaker 00:
The whole point of unwarranted disparity analysis is for the court to determine comparative cases because 3553A6 specifically states that the comparison has to be with defendants with similar records.

[00:05:43] Speaker 00:
And because in this case,

[00:05:45] Speaker 00:
The defense counsel did not have notice.

[00:05:48] Speaker 00:
She did not have the opportunity to point out not only that, in fact, this court had not affirmed similar cases, but two, that those cases were not like this one.

[00:06:01] Speaker 00:
In those cases, the guidelines were more than double or more than triple what they were in this case.

[00:06:09] Speaker 02:
Well, just a minute.

[00:06:11] Speaker 02:
If, in fact, you're really right, which I'm still having a tough time getting you to answer my question, the court looks at many things.

[00:06:22] Speaker 02:
One of them is the 3553A factors, which is what you're arguing now about 3553A factors.

[00:06:32] Speaker 02:
That isn't the only thing that they look at, but it is one that they're to give some thought to.

[00:06:40] Speaker 02:
If the court doesn't choose the sentence relying on the facts which are erroneous to this defendant,

[00:06:52] Speaker 02:
Then it doesn't seem to me that the court has chosen a sentence based on clearly erroneous facts.

[00:06:59] Speaker 00:
I understand your Honor's question.

[00:07:01] Speaker 00:
So unwarranted disparities is looking at other defendants, not just this defendant.

[00:07:07] Speaker 02:
Well, I understand, but that's under a different factor.

[00:07:10] Speaker 02:
What I'm really talking, they talk, they first of all have to

[00:07:15] Speaker 02:
Treat the guidelines as mandatory rather than advisory.

[00:07:18] Speaker 02:
They have to calculate the guidelines.

[00:07:21] Speaker 02:
They have to calculate them correctly.

[00:07:23] Speaker 02:
They have to consider the 3553A factors.

[00:07:28] Speaker 02:
They have to choose a sentence based on clearly erroneous facts as to this defendant.

[00:07:36] Speaker 02:
And they have to fail to adequately explain the sentence selected, including any deviation from the guideline range.

[00:07:43] Speaker 02:
Those are the things they have to look at for procedural error.

[00:07:47] Speaker 00:
And that's where you said you were.

[00:07:51] Speaker 00:
The disagreement is the fact that unwarranted disparities necessarily involves comparing this defendant to other defendants.

[00:08:02] Speaker 00:
And if the information regarding other defendants is

[00:08:07] Speaker 00:
Inaccurate and plainly wrong then that affects the analysis, and that's what happened here.

[00:08:14] Speaker 02:
I don't mean to take a look.

[00:08:15] Speaker 03:
That's okay.

[00:08:16] Speaker 02:
That's me I would just say I understand what you're saying they have to consider the 3553 a factors, but that's only one of the factors that they have to consider I gave you all and

[00:08:29] Speaker 02:
So you're concentrating on 35 53 a and you're saying they shouldn't have done this because they talked about sentences We didn't know anything about but the bottom line is that's only one of the factors and it has nothing to do with clearly erroneously Getting the facts as to your defendant.

[00:08:51] Speaker 00:
I see I'm running out of time.

[00:08:53] Speaker 00:
Okay, can I can I can I jump in?

[00:08:54] Speaker 00:
Okay

[00:08:55] Speaker 03:
So to the point that Judge Smith is making, you're focusing on one of the 3553A sentencing objectives.

[00:09:03] Speaker 03:
One of the other objectives is for the judge to evaluate the nature and circumstances of the offense itself.

[00:09:11] Speaker 03:
And I could tell you from my own experience dealing with this kind of crime, this is a very serious offense, for example.

[00:09:21] Speaker 03:
12 people were in a truck, five were in the camper shell unsecured.

[00:09:27] Speaker 03:
Your client drove 80 to 90 miles an hour trying to avoid evade border patrol agents.

[00:09:35] Speaker 03:
There were people in the camper shell waving from underneath to the border patrol agents.

[00:09:44] Speaker 03:
There were gasoline containers in the truck bed which spilled gasoline on the victims.

[00:09:51] Speaker 03:
The client drove the truck into oncoming traffic.

[00:09:55] Speaker 03:
Then swerved across southbound lanes into a pedestrian sidewalk Near the port of entry so so To me that the trial judge or the sentencing judge provided notice

[00:10:10] Speaker 03:
that the judge wished to vary upward, continued the sentencing hearing, and then pronounced sentencing and announced his reasonings for it.

[00:10:24] Speaker 03:
So even if there was some sort of a procedural irregularity with evaluating the disparity issue, is there not enough here to justify the upward variance?

[00:10:38] Speaker 00:
No, Your Honor, because

[00:10:40] Speaker 00:
There are several things.

[00:10:42] Speaker 00:
First, the greater the variance, the greater the persuasiveness of the justification.

[00:10:47] Speaker 00:
And the justification used in this case was that this court had previously affirmed multiple times cases like this one to 60 months.

[00:11:00] Speaker 00:
When we look at those cases, that's simply not true.

[00:11:02] Speaker 00:
The guidelines in those cases were substantially higher, and thus the justification needed for that variance was a lot smaller.

[00:11:12] Speaker 00:
And in this case, although the court can consider the seriousness and can vary upwards, the question is the extent of the variance.

[00:11:23] Speaker 00:
And here, the district court believed that,

[00:11:25] Speaker 00:
It could extend all the way up to 60 months because this court had affirmed previously.

[00:11:32] Speaker 00:
The court said it multiple times.

[00:11:35] Speaker 00:
I was affirmed by the Ninth Circuit.

[00:11:38] Speaker 00:
The Ninth Circuit affirmed me.

[00:11:40] Speaker 00:
It went on to say two more times.

[00:11:42] Speaker 00:
The Ninth Circuit affirmed it based on the nature and the conduct.

[00:11:46] Speaker 00:
I was affirmed by the Ninth Circuit.

[00:11:48] Speaker 00:
So multiple times, that was the justification.

[00:11:52] Speaker 01:
If the court was mistaken about whether or not it was affirmed under these circumstances, you think that's reversible error?

[00:12:01] Speaker 00:
There's two reasons.

[00:12:02] Speaker 01:
Well, just answer that question.

[00:12:04] Speaker 01:
If the district court was mistaken about whether it was affirmed on facts that you say are mistaken, is that reversible error?

[00:12:14] Speaker 00:
Yes.

[00:12:15] Speaker 01:
Why?

[00:12:16] Speaker 00:
Because that would have made a difference.

[00:12:20] Speaker 00:
The defense counsel would have prepared differently, advised the court of how the court was wrong.

[00:12:28] Speaker 00:
And the district court may have said, oh, I understand.

[00:12:32] Speaker 00:
The variances in those cases were like 10% compared to almost 300% in this case.

[00:12:38] Speaker 01:
What case are you relying on to support

[00:12:42] Speaker 02:
The notion that if a district court judge makes a mistake in terms of its recollection of the facts that that's reversible error Cardi Cardi's says that the poor has to rely on talking about the facts of a sentence in another case Not the facts about the defendant himself.

[00:13:03] Speaker 02:
I just want the facts in another case Cardi doesn't talk about that

[00:13:09] Speaker 00:
Well, the Rule 32 cases do talk about, for example, statistical data regarding other cases.

[00:13:17] Speaker 01:
But if I'm asking you, what's your strongest case?

[00:13:20] Speaker 01:
If we were writing an opinion on this and we said the district court made a mistake when it recollected the facts of a different case on which it presided, what case would we cite for the proposition that that's reversible error?

[00:13:38] Speaker 00:
Cardi, Your Honor, also.

[00:13:39] Speaker 01:
What's the language in Cardi that would support our ruling in that way?

[00:13:44] Speaker 00:
The language in Cardi would be that to choose a sentence based on clearly erroneous facts is procedural error, require reversal.

[00:14:02] Speaker 00:
But in this case, we don't only have that.

[00:14:05] Speaker 00:
We also have the fact that if the defendant's counsel had received notice, she would have also had the opportunity to explain to the judges, Your Honor, the cases that you're relying on, those prior cases, they're actually not similar to this one.

[00:14:21] Speaker 00:
Your Honor, based on 3553A6, has to look at similar defendants with similar records.

[00:14:29] Speaker 00:
Those defendants were at criminal history category five or six.

[00:14:35] Speaker 00:
The defendant in this case had no law enforcement contact.

[00:14:40] Speaker 00:
And that's relevant.

[00:14:41] Speaker 01:
Why do you say this is not plain error review?

[00:14:44] Speaker 00:
Excuse me?

[00:14:44] Speaker 01:
Why do you say this is not plain error?

[00:14:47] Speaker 00:
There was an objection below by the attorney asked to the disparity analysis.

[00:14:54] Speaker 01:
But this specific objection that the- No, Your Honor.

[00:14:57] Speaker 01:
So this specific objection was not made.

[00:14:59] Speaker 00:
It was not.

[00:15:01] Speaker 00:
Even so, even if the court finds that the general objection made below was enough, we do satisfy each of the four prongs.

[00:15:10] Speaker 01:
All right.

[00:15:11] Speaker 01:
Thank you, counsel.

[00:15:12] Speaker 00:
Thank you.

[00:15:12] Speaker 01:
Any more questions?

[00:15:13] Speaker 01:
We'll give you a couple of minutes for rebuttal.

[00:15:15] Speaker 00:
Thank you.

[00:15:15] Speaker 01:
We'll help take you past your time.

[00:15:18] Speaker 01:
We'll hear from the government.

[00:15:23] Speaker 04:
May it please the court.

[00:15:24] Speaker 04:
Nathan Brooks for the United States.

[00:15:26] Speaker 04:
There was no procedural error here.

[00:15:30] Speaker 04:
The court should be reviewing here for substantive reasonableness and the touchstone when it comes to substantive reasonableness as this court has found.

[00:15:38] Speaker 01:
Well, you skipped past the procedural.

[00:15:41] Speaker 01:
Yes, your honor.

[00:15:42] Speaker 01:
I don't think she argued about the substantive reasonableness.

[00:15:45] Speaker 01:
Her whole point was on the procedural aspect and the fact that the district court recollected cases erroneously.

[00:15:55] Speaker 01:
What's your response to that?

[00:15:57] Speaker 04:
Well, Your Honor, based on this court's case law when it comes to what constitutes procedural error, there was no mistake of facts.

[00:16:05] Speaker 04:
The guidelines were calculated properly without objection from either party.

[00:16:10] Speaker 04:
The court walked through the 3553A factors.

[00:16:13] Speaker 04:
The court listened to the arguments of parties.

[00:16:15] Speaker 04:
It read the PSR.

[00:16:17] Speaker 04:
There was no procedural error below.

[00:16:20] Speaker 04:
The only question for this court would be whether it was substantively reasonable in its totality, this sentence.

[00:16:26] Speaker 02:
Is it a procedural error to base a sentence

[00:16:42] Speaker 04:
Court is always going to bring its own experiences into any judgment it makes.

[00:16:47] Speaker 04:
Those decisions and experiences are going to be necessarily internalized most of the time.

[00:16:53] Speaker 04:
A judge is going to rely on his past experience or her past experience, whether it's case law, whether it's prior experiences in another forum.

[00:17:01] Speaker 04:
I can point to an example, a Supreme Court case, Berkeley versus Florida.

[00:17:05] Speaker 04:
In that case, the judge had referenced in sentencing his experience visiting concentration camps in World War II.

[00:17:13] Speaker 04:
and that it was raised an objection on appeal.

[00:17:15] Speaker 04:
The Supreme Court said that it's neither possible nor desirable for a judge to completely remove his or her past experiences from his or her judgments.

[00:17:25] Speaker 04:
I think the possible part there is really one of the key aspects.

[00:17:28] Speaker 04:
I don't even know how you would police that or review that, given how much of a judge's prior experience is necessarily going to be internalized.

[00:17:37] Speaker 04:
So no, I don't think it's procedural error in that instance.

[00:17:40] Speaker 04:
And also I think it's important to note

[00:17:42] Speaker 04:
that this was not what the judge based his decision on.

[00:17:46] Speaker 04:
This was a brief discussion at the end of two sentencing hearings.

[00:17:53] Speaker 04:
This judge made clear that in walking through the 3553A factors that the two most important factors for him

[00:18:01] Speaker 04:
were the nature and circumstance of this offense and the need to promote general deterrence.

[00:18:07] Speaker 04:
And in a very lively debate with defense counsel, he ultimately made the determination that those two factors outweighed the need to avoid unwarranted sentencing disparities.

[00:18:20] Speaker 04:
And through that lens, this judge saw a driver driving in excess of 90 miles an hour, swerving to avoid a vehicle immobilization device,

[00:18:29] Speaker 04:
When the traffic in his lane was blocked off, he went the wrong lane of traffic into oncoming traffic onto a pedestrian sidewalk, all while people in the back of the truck were waving their hands to law enforcement in a desperate plea for help.

[00:18:43] Speaker 04:
Some of those people were later found to be covered in gasoline because the gas tanks were not properly secured in the back of the truck.

[00:18:49] Speaker 04:
After all of this, after all of that, he was finally made to come to a stop.

[00:18:53] Speaker 04:
This defendant still attempted to flee into Mexico on foot.

[00:18:56] Speaker 04:
I mean, these facts are unique.

[00:18:58] Speaker 04:
These facts are dangerous.

[00:19:00] Speaker 03:
Have you evaluated the pre-sentence investigation report yourself?

[00:19:04] Speaker 03:
I'm just surprised that the offense level would be so low, given all these facts.

[00:19:12] Speaker 04:
Well, Your Honor, obviously here the determination was made that this was, and the government agreed that... Of course, but I'm just wondering your independent assessment, if you've done that.

[00:19:23] Speaker 04:
Well, yes, your honor, I've reviewed the PSR, and obviously what the judge found here, and it was a reasonable determination, is the government's argument.

[00:19:30] Speaker 04:
I mean, we obviously believe that this was subsumed within the substantial risk enhancement, but the judge made the reasonable determination that the facts that I just recounted

[00:19:40] Speaker 04:
justified and above-guidelines sentence.

[00:19:43] Speaker 04:
And I think it's also worth noting, as already been noted by this panel, the fact that Judge Houston, when it comes to the unwarranted sentencing disparity analysis, noted that the facts were not presented to him.

[00:19:56] Speaker 04:
The proponent of, as this Court has found, the proponent of an unwarranted sentencing disparities argument does bear the burden of showing that the comparators are similar, factually similar.

[00:20:07] Speaker 04:
And the judge simply did not have that information before him.

[00:20:11] Speaker 04:
In fact, it's more than parentheticals.

[00:20:13] Speaker 02:
Let me ask you this.

[00:20:14] Speaker 02:
What question, what is my standard of review as it relates to this objection that is being made as regarding these inaccurate recollection of sentences at the hearing?

[00:20:29] Speaker 04:
It would be an abusive discretion standard, I believe, Your Honor.

[00:20:32] Speaker 02:
You're agreeing to the abuse of discretion?

[00:20:34] Speaker 04:
Yes, Your Honor.

[00:20:35] Speaker 02:
Not plain air?

[00:20:36] Speaker 04:
I apologize your honor no with that particular objection.

[00:20:39] Speaker 02:
I apologize this would be plain error because well the reason I ask is it seems to me You gave me the right answer in the first place I mean Defense counsel did not raise the issue of factual inaccurate recollection of sentences because she didn't know what the judge was going to say how could she have raised it and

[00:20:58] Speaker 02:
And if she can't raise it, she wouldn't have known about those cases until the hearing.

[00:21:04] Speaker 02:
How could it be plain air?

[00:21:06] Speaker 04:
Well, Your Honor, I have to go back to the fact that this was the judge responding to the defense counsel's argument.

[00:21:12] Speaker 02:
I know what the judge was doing.

[00:21:14] Speaker 02:
That's why I asked her the questions I did.

[00:21:16] Speaker 02:
But it does seem to me that when she had no way to object or to know, I don't know how you could hold her to a plain air review.

[00:21:28] Speaker 04:
Yes, your honor.

[00:21:29] Speaker 04:
I do believe it would be plain air review, but even under... In what case would say it would be a plain air review?

[00:21:35] Speaker 02:
I looked for one and couldn't find it.

[00:21:36] Speaker 02:
That's why I thought we're back to abusive discretion.

[00:21:39] Speaker 02:
Your honor I do think with respect to objections such as this one I mean the whole point of having a plaintiff review when it comes to making the well I can understand that if it's an objection which you have to make which you knew know was coming or knew something about you could make an objection, but when I

[00:22:01] Speaker 02:
The court put those in the middle of the record themselves.

[00:22:04] Speaker 02:
It had nothing to do with this counsel.

[00:22:06] Speaker 02:
How would she have known about the cases until the hearing?

[00:22:09] Speaker 04:
Well, this court has noted, quoting Irizarry of the United States, that there are certain arguments that are sort of garden-variety arguments that lawyers should be prepared for.

[00:22:17] Speaker 04:
I think if you're walking into court making an argument about sentences that have been lower in unwarranted sentencing disparity analysis, you should probably be prepared the fact there's cases that are also going to be higher.

[00:22:27] Speaker 04:
I think that's one of the garden variety things that Iris already mentioned, and this court has quoted itself as well.

[00:22:33] Speaker 04:
For that reason, I do believe, Your Honor, also the whole point of the Plain Air Review is that the judge has the opportunity to put more on the record about those particular cases, which he would have had the opportunity to do had the defense properly objected in this case.

[00:22:48] Speaker 04:
But I still think even if you were going to use an abusive discretion standard, for the reasons I mentioned earlier in terms of prior past experiences, there's no abusive discretion here.

[00:22:58] Speaker 02:
I also really focused on choose a sentence based on clearly erroneous facts.

[00:23:08] Speaker 02:
And what we're talking about is relates to clearly erroneous facts.

[00:23:14] Speaker 02:
And the only thing that I can come up with is those are clearly erroneous facts as it relates to the defendant themselves.

[00:23:23] Speaker 02:
Not clearly erroneous facts in another sentence in another time.

[00:23:29] Speaker 02:
You have a case that would clearly delineate that differentiation?

[00:23:36] Speaker 04:
Well, U.S.

[00:23:36] Speaker 04:
v. Carty does lay out, I think, an exacting detail.

[00:23:39] Speaker 02:
Clearly erroneous facts.

[00:23:40] Speaker 02:
Yes.

[00:23:41] Speaker 02:
But doesn't talk about whether it's relating to, well, it does seem to indicate as to the defendant.

[00:23:47] Speaker 04:
Yeah, I think when you read the case in its full and other cases that have cited it, they're talking about the facts of that particular case, not facts of other cases somewhere else.

[00:23:56] Speaker 04:
And I think it necessarily is a common sense determination as to what this court has ruled previously.

[00:24:03] Speaker 03:
Are you familiar with the Sentencing Commission's tool that's available?

[00:24:07] Speaker 03:
Anyone could look up sentences in certain categories and find, I think, what an average would be.

[00:24:17] Speaker 03:
Are you familiar with that?

[00:24:18] Speaker 04:
Yes, Your Honor.

[00:24:19] Speaker 04:
I just quoted extensively in the briefing as well.

[00:24:21] Speaker 03:
Okay.

[00:24:21] Speaker 03:
And if a sentencing judge were to rely on that, would it have to be noticed ahead of time according to a defendant's argument?

[00:24:32] Speaker 04:
I think that would also fit under the sort of garden variety arguments that this Court has raised before about things that most attorneys are going to know walking in the average sentence.

[00:24:42] Speaker 04:
I also think that's generally speaking, as this Court has ruled before, included already in some of the guidelines analysis, the guidelines calculations.

[00:24:50] Speaker 04:
But again, here I think what's unique about the

[00:24:55] Speaker 04:
sentencing analyzers, the average data, is that the court did find this is a thoroughly unique set of facts, as we've already recounted a couple of times.

[00:25:04] Speaker 04:
And in that instance, the looking to average sentences isn't going to be as helpful as it might in other contexts.

[00:25:11] Speaker 04:
In this case, I do think it's

[00:25:14] Speaker 04:
why that analysis about the proponent having to give the facts of cases it wants to show as a comparator does bear that burden of showing they are actually competent.

[00:25:24] Speaker 03:
Let me ask you another question before your time is completely up.

[00:25:28] Speaker 03:
If this case were remanded for resentencing, there's nothing that would preclude the sentencing judge from perhaps imposing the statutory max sentence.

[00:25:37] Speaker 03:
Is that right?

[00:25:37] Speaker 03:
Correct, Your Honor.

[00:25:38] Speaker 03:
Okay, thank you.

[00:25:39] Speaker 01:
All right, thank you, Counsel.

[00:25:41] Speaker 01:
Let's have two minutes for rebuttal.

[00:25:49] Speaker 00:
Just a couple of things.

[00:25:51] Speaker 00:
On remand, the defense counsel would be able to give the district court information about the other cases, and I think comparative analysis would be conducted, and the court may say, okay, instead of almost 300% variance, maybe I'll give a 50% variance, but the court would be basing its decision on actual reliable facts.

[00:26:14] Speaker 03:
But the court, but the sentencing judge could also say that the guideline range understates the nature and circumstances.

[00:26:21] Speaker 00:
The court can't say that, but still, even if the court has disagreement with that, the guidelines still remain the lodestar.

[00:26:30] Speaker 00:
And the court still has to explain, has to justify the extent of the variance.

[00:26:38] Speaker 00:
And that just didn't happen here because the court was relying on the belief that this court had affirmed 16-month sentences that passed.

[00:26:46] Speaker 01:
But that means that you're discounting everything else the court said.

[00:26:49] Speaker 01:
That's not the only thing the court said about why this sentence should be enhanced.

[00:26:55] Speaker 00:
Yeah, I understand, Your Honor.

[00:26:56] Speaker 00:
The court was focusing on the seriousness, but then combining it with the fact that this court had affirmed multiple times.

[00:27:05] Speaker 00:
And I'd just also like to address the fact that this isn't the garden variety judicial experience.

[00:27:12] Speaker 00:
This was actual statistical data.

[00:27:17] Speaker 00:
prepared attorney would go into sentencing knowing what a judge likes or what the judge doesn't like or their sentencing history.

[00:27:26] Speaker 00:
But this is the type of case, as stated in the Supreme Court in Irizarry, that the parties, this type of information is so different that it would materially affect how the parties present their case.

[00:27:41] Speaker 01:
This was not statistical data.

[00:27:42] Speaker 01:
It was the judge's recollection.

[00:27:45] Speaker 01:
of prior cases that he had experienced on the bench.

[00:27:49] Speaker 01:
Imperfect, perhaps.

[00:27:51] Speaker 01:
It's not statistical data.

[00:27:53] Speaker 00:
I understand that, Your Honor.

[00:27:54] Speaker 00:
It may have been an inaccurate memory, but it resulted in him comparing cases that were just not like this one at all.

[00:28:04] Speaker 01:
Judge could have done the same thing without making that statement.

[00:28:07] Speaker 01:
In his head, he could have thought, oh, this is like the cases I had

[00:28:12] Speaker 01:
And the result would have been the same.

[00:28:14] Speaker 01:
So that's the difficulty I'm having with your argument is that the judge could do the exact same thing in his head without articulating it.

[00:28:22] Speaker 01:
You would never know it.

[00:28:24] Speaker 01:
And then we wouldn't be here.

[00:28:25] Speaker 01:
So I find it hard to say that.

[00:28:29] Speaker 01:
the judge should be penalized for that, because that often happens without the judge articulating it.

[00:28:33] Speaker 00:
I understand, but I think because the judge said at least four times that this court had affirmed a 16-month sentence, the court really thought that that was important in this case.

[00:28:46] Speaker 01:
All right.

[00:28:46] Speaker 01:
Thank you, counsel.

[00:28:47] Speaker 00:
Thank you, Your Honor.

[00:28:48] Speaker 01:
I understand your argument.

[00:28:49] Speaker 01:
Thank you to both counsel.

[00:28:50] Speaker 01:
The case just argued is submitted for a decision by the court.

[00:28:53] Speaker 01:
The next case,