[00:00:00] Speaker 01:
Okay, great. Thank you. Um, good morning. May it please the court. Um, they are on behalf of Mr. Higginbotham. And when I read this case, I looked at the plea and, um, all the proceedings and all Mr. Higginbotham wanted to do was tell his side of the story.

[00:00:21] Speaker 01:
Um, he did not intend to lie. He just wanted to make sure that he, uh, The court heard his side of the story.

[00:00:34] Speaker 01:
And according to the plea agreement, he was allowed to challenge the firearms in the truck and in the storage room. That was part of the plea agreement. They knew what the plea agreement said. The plea agreement said he went into the storage room, that he You know how they found the guns?

[00:00:53] Speaker 03:
That didn't mean that the whole – whatever he said on the subject, that subject was expressly reserved under the plea agreement. But that doesn't mean that whatever he said on that subject, he had sort of blanket use immunity and he could not – you know, be assessed for either obstruction or, you know, loss of acceptance of responsibility if he said things in there that were perjurious.

[00:01:24] Speaker 03:
And the government expressly reserved in the plea agreement post-plea obstruction as well. So there are kind of a lot of different pieces here, and it seems like, you know, you have to thread between those.

[00:01:38] Speaker 01:
Okay, but they... But to him, and the way the agreement was presented to him, he was allowed to say what he was going to say. He didn't, in his mind, the plea agreement said that he could challenge those specifically, that he could challenge those. And the government never said, look, you want an evidentiary hearing? They knew what he was going to say. They had all the evidence. They knew what he was going to say, and so he just told his side of the story.

[00:02:11] Speaker 01:
Now, to me, just reading it, the evidentiary hearing was not sentencing.

[00:02:19] Speaker 01:
What they didn't do was specify exactly what sentencing was. At sentencing, he got up, he told his story, he apologized. I'm sorry if you didn't believe me, but I understand where you're coming from, he said to the court. And he accepted full responsibility. And so where's the obstruction? It specifically said at sentencing. So he got up at sentencing. He said what he was going to say. So he didn't deserve the enhancements for obstruction of justice.

[00:02:50] Speaker 04:
Ms. Arfa, did he, through counsel, raise...

[00:02:55] Speaker 04:
this claim that the government breached. I understand. I take that in most of the colloquies, to the extent there was an objection, it appears that he was... raised a claim that he did not breach. But I take your claim here to be that the government breached.

[00:03:13] Speaker 04:
Yes.

[00:03:15] Speaker 04:
Where is that in the district court record, and why wouldn't we review for plain error?

[00:03:21] Speaker 01:
Well, because...

[00:03:28] Speaker 01:
Because the plea agreement was clear. I'm not, I think at, at sentencing trial counsel specifically said, look, you know, he, um, he had this, everything, everything was clear. So that's, so he didn't say anything that they didn't know he wasn't going to say. So even under plain error, even under plain error, I did, I did a lot of the research on the, um, uh, the plain error. And, um, it seems that he would fall under the category of a de novo review.

[00:04:03] Speaker 01:
And even under the plain error standard, he would still qualify as error.

[00:04:11] Speaker 04:
Okay, so there's nowhere you're drawing our attention to right now that reflects an objection that the government had breached the agreement.

[00:04:20] Speaker 01:
Well, I think there was, when I looked at the sentencing, there was plenty to show that counsel made it clear that he complied with the agreement.

[00:04:31] Speaker 03:
Right, but I think Judge Stone's question is, did counsel ever say, hey, what the government's doing here now is contrary to the plea agreement. They're not doing what they were obligated to do. Was that ever called to the district court's attention?

[00:04:47] Speaker 01:
I don't think he said exactly those words, but I do know that he did object. He didn't use the word object, but he said object.

[00:05:01] Speaker 03:
If he took the substantive position, the adjustment shouldn't apply. Yes. But that's kind of the merits. The question is, was the government breaching the agreement at the sentencing, and that wasn't raised or called to the district court's attention, and that would suggest we review only for plain error?

[00:05:18] Speaker 01:
Okay, well...

[00:05:22] Speaker 01:
I respectfully disagree. I looked at the sentencing proceedings and it was clear that trial counsel specifically didn't use the word object. But he said, look, this was part of the plea agreement. They knew he was going to do this.

[00:05:39] Speaker 02:
And when you say this, what are you referring to? That he was going to tell his story and they knew exactly what he was going to say. But that that story was going to be different than what he had said in earlier in the proceedings?

[00:05:55] Speaker 01:
I'm sorry.

[00:05:58] Speaker 01:
His story has changed, correct?

[00:06:01] Speaker 01:
The story between what the plea was and what he testified to at the evidentiary hearing? Yes.

[00:06:10] Speaker 01:
I don't think he ever agreed. I don't think he ever agreed that he possessed the firearms in the truck and in the storage room. Well, what was he playing to then?

[00:06:24] Speaker 01:
He was saying that they belonged to his wife. It's in the plea agreement in the footnotes. He said that he didn't own those things.

[00:06:32] Speaker 03:
But he acknowledged one gun.

[00:06:34] Speaker 01:
He agreed to play to one gun, which is what he did.

[00:06:41] Speaker 01:
And then in the plea agreement, in the footnotes, it's very clear that he challenged both of those things in the plea agreement.

[00:06:51] Speaker 01:
He said his wife owned the firearms in the storage unit.

[00:06:57] Speaker 01:
And it's all there.

[00:06:59] Speaker 04:
Right. But I guess, right. So in the footnotes, what I see in the footnotes there is that he reserved the right under the agreement. Right. to argue who possessed the firearms in the truck, but there are ways in which he could do so that did not directly conflict the factual basis that he agreed to. And it looked like, I think his story continued to transform throughout the time here, but he directly contradicted the facts, the factual basis, did he not?

[00:07:38] Speaker 01:
Well, when you look at, there are two footnotes, footnote one, and let's see, there's another one on ER 284, where he's going to challenge the firearms in the storage unit and disputes he had access or control to them. But it's in the plea agreement that he had access and control. So I just think we're dealing with somebody who's not familiar with all of the legal jargon, who didn't understand what access constructive possession was.

[00:08:09] Speaker 01:
I'd like to save some time for rebuttal.

[00:08:11] Speaker 03:
All right. Thank you, counsel.

[00:08:14] Speaker 01:
Thank you.

[00:08:14] Speaker 03:
All right. Then we'll hear from Mr. Connolly. All right. You may proceed.

[00:08:38] Speaker 00:
Good morning, Your Honors. If it please the Court, James Connolly on behalf of the United States. The government here did not breach the plea agreement when it argued at sentencing that Mr. Higginbotham had obstructed justice as intended under Section 3.

[00:08:51] Speaker 03:
But do you understand what counsel's argument is? The plea agreement expressly reserves the dispute over the other guns. And you knew at some level what the core of his position on that was going to be, so it's sort of a bit of a trap.

[00:09:08] Speaker 03:
You know, you reserve the issue knowing that there's a dispute on it, but that if he pursues the dispute, then he's going to get a

[00:09:15] Speaker 00:
obstruction of justice and lose the um the adjustment for acceptance of responsibility why isn't that a breach of the plea agreement well that is it your honor it wasn't a trap and it's not a breach of the plea agreement because what he what he agreed to specifically in the plea agreement was that the guns belonged to his wife and that he had no control over the guns in the truck and he had no control over nor access to the guns in the storage unit. And those are both facts that the court found as a finding on the record that those were both false statements.

[00:09:49] Speaker 00:
And while the government allowed in the plea agreement, and Mr. Higginbotham was well familiar with the plea agreement, as his counsel made clear at the change of plea, while the government allowed him to dispute that, he had staked a position in the plea agreement that they belonged to his wife. He had also staked the position about access and control. From there, as the court had pointed out, yes, in the evidence, his story had shifted multiple times.

[00:10:13] Speaker 03:
So at any point prior to the – up to the plea agreement, did he ever raise a story about Pops?

[00:10:23] Speaker 00:
In the court record, no, but it was in evidence, and his defense attorney had that evidence, and I had discussed that with them. And the fact is that he had the right to dispute that under the plea agreement – But he had already, as I said, staked the position that they belonged to his wife. But he did not have the right then to present false evidence in order to do that. He could have cited two other facts in the record. He could have argued other evidence in the record. And he could have remained silent. Section 3E1.1 allows for that.

[00:10:54] Speaker 00:
It allows them to disclaim responsibility, but they cannot then falsely or frivolously contest that responsibility. They can remain silent or they can argue evidence that is fair, accurate, subject to cross-examination.

[00:11:11] Speaker 03:
So the issue was reserved, but in litigating the issue, he didn't have sort of use immunity to say whatever he wanted? That is correct. Okay.

[00:11:22] Speaker 04:
Can you help me understand, I guess, there seems to be two moving parts to what Mr. Higginbotham said charges as potential breaches by the government, the failure to recommend acceptance of responsibility, and then the obstruction piece.

[00:11:42] Speaker 04:
With respect to the obstruction piece, do you take the plea agreement to have that conditioned on anything? I mean, the agreement itself in part 6b says it contains the condition.

[00:12:01] Speaker 04:
But then later on, it says that there seems to be just a general reservation of the government's rights to ask for obstruction.

[00:12:13] Speaker 04:
Well, as I understand it— The obstruction conditioned on anything that the government does? I mean, it looked like—I read the plea agreement perhaps to contain just a general blanket reservation of the government's power that's not conditioned on anything that could be breached to argue for obstruction—

[00:12:28] Speaker 00:
For post-plea obstruction of justice, the plea agreement cites to Section 3C1.1. And under that, 3C1.1 in the application notes has as possible ways of obstructing justice lying to or presenting false information to a judge or a magistrate judge. And so that is sweeping and encompassing.

[00:12:53] Speaker 00:
And so it's clearly reserved there.

[00:12:57] Speaker 00:
As the lower court pointed out, Section 3E1.1 does tie to obstruction of justice, especially post-plea obstruction of justice, in the sense that if one is disclaiming responsibility for acts and conduct, relevant conduct, that the defendant has done.

[00:13:16] Speaker 04:
Right. I mean, I take the sentencing predicate for that, but I guess I'm trying to figure out the agreement isn't... crystal clear on in terms of what the obstruction of justice, post-police obstruction of justice turns on because it occurs both in part three, the government's obligations 3B2, which says the government will recommend a two-level reduction if dot, dot, dot, it includes not engaging in conduct that constitutes obstruction of justice under 3C.1.1.

[00:13:56] Speaker 04:
But then it comes back in kind of a perhaps unconditional form later on in 7B, waiver of appeal and collateral attack.

[00:14:08] Speaker 04:
So I'm just not sure how to fit this together. I'm sorry, in 5B, apart from reserving the right to argue the number of firearms involved in the charge conduct, which is an unconditional reservation of rights, The parties will not argue in favor of other specific defense characteristics, except the government may move for a departure or adjustment based on the defendant's post-plea obstruction of justice. So is the obstruction departure or adjustment conditioned in part three or unconditioned in part six?

[00:14:41] Speaker 00:
Well, Your Honor, actually, I would refer the court to the plea agreement under acceptance of responsibility first, and there will be more, but That's a 2ER277, that the government's recommending reduction for acceptance of responsibility is conditioned on, among other things, the defendant not otherwise engaging in conduct that constitutes obstruction of justice within the meaning of sentencing guideline 3C1.1.

[00:15:11] Speaker 04:
Yeah, I see that. But of course, we've had some questions about that. So I'm wondering whether we have to navigate that.

[00:15:19] Speaker 04:
if at least with respect to the obstruction argument.

[00:15:23] Speaker 00:
Go ahead.

[00:15:23] Speaker 04:
I'm just trying to figure out where is the government. So the government is not claiming the unconditional, apparently unconditional, obstruction reservation of rights in 6B in terms of making the guideline calculations?

[00:15:39] Speaker 00:
It is cabined within 3C1.1. Okay. And then by exception. So then it is conditioned on

[00:15:48] Speaker 04:
acceptance of responsibility?

[00:15:51] Speaker 00:
Sorry, the acceptance of responsibility is in part conditioned on obstruction of justice.

[00:15:55] Speaker 04:
Right, the government's recommendation of it, whether the government can recommend that depends on the obstruction of justice later on.

[00:16:03] Speaker 00:
Yes.

[00:16:04] Speaker 00:
Then from there also arguing the number of guns for which he'd be held responsible, the plea agreement does include those two footnotes in the factual basis where he says they were my wife's and I had no access to the ones in the storage unit or control over them, and I had no control over the ones in the truck, both of which the court found, as a matter of fact, were false statements. And then in addition to that, Your Honor, I would also go back to the plain error standard here. There was no allegation of breach of the plea agreement.

[00:16:38] Speaker 00:
Your Honors had asked defense counsel about this. He, Mr. Cousins, had essentially said at, sentencing. Sorry, we thought we could argue the number of guns.

[00:16:51] Speaker 04:
Well, Don, does the plain error do anything here in terms of, I mean, are there other grounds, other elements of the plain error test that you'd suggest? It looks as if, I mean, is there prejudice? It seems like although there is a maximum sentence here, it does appear that these adjustments are might have made a difference. So are you arguing any other part of the plain error test other than the error part?

[00:17:21] Speaker 00:
Yes, we certainly are. As far as affecting his substantial rights, he would need to show, under Puckett, he would need to show reasonable probability that but for the alleged breach, and obviously we don't concede there was a breach, but for the alleged breach, the outcome would have been different. But the record here is robust in terms of what he said on the stand and how that conflicted with all of the evidence in the record and what he said at allocution and how that conflicted with what he said in the record.

[00:17:51] Speaker 04:
But the adjustments here, if there weren't enough in the record to support the adjustments, the adjustments would have made a difference to his sentencing, right? The statutory maximum would not have mooted those questions. It would have come down below the maximum.

[00:18:10] Speaker 00:
Yes, but I think, Your Honor, what I'm saying here is that those adjustments would have applied

[00:18:15] Speaker 04:
whether or not there had been the alleged briefs that the defense is... Well, and how many... Right, so some of those adjustments, I guess, again, dealing with the obstruction up and the acceptance of responsibility down, the district court wasn't bound with respect to either of them, one of them, both of them, in terms of... Right, setting aside the question of whether the government had an obligation to recommend them, the district court could have done at least the obstruction on its own or both?

[00:18:48] Speaker 00:
Once the court found, and in the court's remarks at sentencing, once the court found that he had obstructed justice in the way that he had, the removal of the discount for acceptance of responsibility then followed. And that is something that the court found on the record at one ER, I believe it's 23 and 24, and then again at 30 to 34, the court makes clear all of the findings of fact that she has made in terms of his deliberate and willful attempts to obfuscate the record.

[00:19:26] Speaker 04:
And so... That didn't turn on the government's performance, is your argument?

[00:19:31] Speaker 00:
Pardon me?

[00:19:31] Speaker 04:
That didn't turn on the government's performance or non-performance of the agreement?

[00:19:35] Speaker 00:
While the government argued those and pointed them out, they were... They were fairly obvious and the court easily could have come to those conclusions on its own.

[00:19:43] Speaker 03:
All right. Thank you, counsel. We've taken over your time. Thank you. All right. We'll hear rebuttal now.

[00:19:50] Speaker 01:
Yes. I just wanted to point out that at sentencing, it's on the ER 296. Mr. Cousins did say, your honor, a part of the plea agreement is also there were guns found in a pickup truck and guns found in a storage unit. My client has the right to contest whether he had possession of those firearms in this case. And then the court said to the government, is that your position? No, is that your position reflected in the agreement?

[00:20:22] Speaker 01:
Trial counsel says yes.

[00:20:23] Speaker 04:
But doesn't that go to whether he's breaching it, not whether the government's breaching it?

[00:20:28] Speaker 01:
Well, the government specifically said, Mr. Connolly said, yes, your honor, we have adjusted the factual basis to make allowance for the fact that Mr. Higginbotham is not agreeing with the government. The certain firearms that make up counts two and three were possessed by them. But that is all made clear in the factual basis. So he and my other argument is that, listen, He did not lie at sentencing. He admitted he had that gun. That, in his mind, that's what he was admitting.

[00:21:00] Speaker 01:
It didn't tell him he had to admit to all relevant conduct. He admitted he did what he promised to do. He admitted he complied with everything. He said he owned the gun in the car. They disputed whether or not he had the other guns, but that doesn't rise to the level of this obstruction of justice and justice. that he didn't accept responsibility. He did. He said, I had this gun. I admit it. And we're going to dispute the rest. And that's clear in the plea agreement on AR 296.

[00:21:32] Speaker 01:
Even Mr. Connolly agreed that that was in dispute. And he was going to say what he was going to say. The government had all that evidence. There was no obstruction of justice. And not only that, the plea agreement was limited to what happened at sentencing.

[00:21:51] Speaker 01:
He didn't say, look, whatever you say at the evidentiary hearing, if you deny that you had those, that's going to... I thought it said post-plea obstruction.

[00:22:01] Speaker 01:
Post-plea obstruction, but he didn't do anything according to what... But the evidentiary hearing was post the plea, wasn't it?

[00:22:11] Speaker 01:
And...

[00:22:13] Speaker 01:
Post plea.

[00:22:16] Speaker 01:
Yes, but he didn't obstruct justice. That was that was part of the deal that he could get up there and deny that he had those guys. He really felt strongly about it. And he apologized, I think, at the court to the court at the end saying, look, I really believe this, but. If you don't believe me, that's fine. And all this stuff about Pops and whatever else, they knew all about that. They were listening on tapes. They knew what he was going to say. So it's not like they didn't know what was going to happen.

[00:22:47] Speaker 03:
All right. Thank you, counsel.

[00:22:49] Speaker 03:
The case just argued will be submitted.