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

[00:00:07] Speaker 01:
We are delighted to be sitting here in Pasadena, and we're equally delighted to be joined by our colleague from the Second Circuit, Seventh Circuit, Judge Hamilton.

[00:00:18] Speaker 01:
Welcome and thank you, Judge Hamilton.

[00:00:20] Speaker 03:
My pleasure.

[00:00:21] Speaker 03:
Thank you for having me.

[00:00:21] Speaker 01:
Yes.

[00:00:22] Speaker 01:
The cases will be called in the order listed on the docket.

[00:00:25] Speaker 01:
The first two cases

[00:00:27] Speaker 01:
Lopez, Mary Connors v. Bondi, and Ramos Garcia v. Bondi have been submitted on the briefs.

[00:00:34] Speaker 01:
The first case on calendar for argument is United States v. Carey.

[00:00:38] Speaker 01:
Counsel for appellant, please approach and proceed.

[00:00:45] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:47] Speaker 04:
My name is David Zuckman.

[00:00:48] Speaker 04:
I represent Mr. Carey.

[00:00:51] Speaker 04:
I'd like to take about 60 seconds to describe what I think the issues are, and then I submit myself to your questioning.

[00:00:57] Speaker 04:
The question before the Court is, Mr. Carey, were he sentenced today, would have faced a lower guideline range because his status points for criminal history wouldn't have counted.

[00:01:07] Speaker 04:
The District Court held that the District Court couldn't consider the lower guideline range because

[00:01:13] Speaker 04:
The guideline commentary says if departures have been given, then you essentially are ineligible for the reduction.

[00:01:22] Speaker 04:
I contended that the Sentencing Commission didn't have the power to act as it did.

[00:01:27] Speaker 04:
I did not say at that time, because the law says you have to rule by policy statements, I said they simply lack the power.

[00:01:37] Speaker 04:
The question is, did my argument preserve this?

[00:01:40] Speaker 04:
If my argument preserved this, then the only question is, was it prejudicial?

[00:01:44] Speaker 04:
And I think it was, since in no place in the record does the judge reference the correct guideline range.

[00:01:50] Speaker 04:
And that's the one thing that we always know is true.

[00:01:52] Speaker 04:
You gotta consider the guideline range when sentencing.

[00:01:55] Speaker 03:
And the final point is... This was a resentencing, correct?

[00:01:59] Speaker 04:
It was a resentencing, Your Honor.

[00:02:00] Speaker 03:
So a lot of things did not need to be repeated, right?

[00:02:04] Speaker 04:
Oh, certainly, Your Honor.

[00:02:04] Speaker 04:
I mean, if you get to the point where you're considering eligibility, then you have to consider the guideline range.

[00:02:11] Speaker 04:
But Your Honor is correct.

[00:02:12] Speaker 04:
If the judge feels bound by the commentary, then the judge doesn't ever get to that point because the judge believes that the Sentencing Commission has tied their hands.

[00:02:22] Speaker 04:
It's my contention that 3582C2 says the Sentencing Commission shall rule by policy statement.

[00:02:30] Speaker 04:
That is what it says.

[00:02:31] Speaker 04:
It doesn't say commentary.

[00:02:33] Speaker 04:
It does say commentary in other portions of the law.

[00:02:36] Speaker 04:
That means

[00:02:38] Speaker 04:
expressio unis est exclusio alteris.

[00:02:41] Speaker 04:
And I probably didn't say that correctly, but it means if you name one thing, it means you're excluding other things.

[00:02:47] Speaker 04:
It means if you call a coin heads, you're also saying it's not tails.

[00:02:52] Speaker 04:
In other words,

[00:02:53] Speaker 04:
When I say the Sentencing Commission does not have this power because the law says policy statement, saying it doesn't have the power is the flip side of saying you got to rule by policy statement.

[00:03:04] Speaker 04:
It's the same argument.

[00:03:06] Speaker 04:
Now, I know.

[00:03:06] Speaker 04:
I didn't say Kaiser below.

[00:03:08] Speaker 04:
I got to tell you, Your Honors, I don't read that many administrative law decisions.

[00:03:12] Speaker 04:
But now that I understand the issue, it's very clear that Kaiser is just an expression of

[00:03:19] Speaker 04:
of the rules of agency restriction.

[00:03:22] Speaker 04:
They never had the power.

[00:03:24] Speaker 04:
At some point, the courts allowed agencies to essentially have penumbral power, to have a power.

[00:03:31] Speaker 03:
Mr. Zugman, can I ask you, sorry to interrupt, but before we get to the Kaiser problem, let's look at the text of 1B1.10.

[00:03:40] Speaker 03:
Okay.

[00:03:42] Speaker 03:
And in particular subsection B1 which says the court shall determine the amended guideline range

[00:03:48] Speaker 03:
And she'll leave all other guideline application decisions unaffected, right?

[00:03:53] Speaker 03:
Under your theory, could you tell me what work the exception for substantial assistance departures does?

[00:04:03] Speaker 04:
Well, that's an interesting point, Your Honor, and that's the case that I cited from Judge Sabrah in the District Court in San Diego, where he found that the Sentencing Commission's position was completely irrational for the Southern District of California, where nearly every case has a fast-track departure.

[00:04:20] Speaker 04:
So none of our low-level, minor defendants get any reductions, because they're getting fast-track.

[00:04:27] Speaker 04:
Now, I agree.

[00:04:28] Speaker 04:
The commentary does say what it says.

[00:04:30] Speaker 03:
I'm not asking you about the commentary.

[00:04:32] Speaker 03:
I'm asking you about the text of 1b 1.10 the policy statement Because it it seems to me the amended guideline range probably means without taking into account any downward departures or variances and Because if if not then it's hard to understand

[00:04:55] Speaker 03:
what the exception for substantial assistance departures does.

[00:04:59] Speaker 03:
And you haven't answered my question except to say you don't like it in the Southern District of California.

[00:05:04] Speaker 04:
That's a fair point, Your Honor.

[00:05:05] Speaker 04:
I misunderstood Your Honor's point.

[00:05:08] Speaker 03:
It is a textual point.

[00:05:10] Speaker 04:
It is a textual point, Your Honor.

[00:05:11] Speaker 04:
And my answer to that is that it is correct to say that there's any number of ways that a district court can get under a guideline range.

[00:05:21] Speaker 04:
It doesn't have to be through departures.

[00:05:23] Speaker 04:
It can be by variance.

[00:05:24] Speaker 03:
And departures and variances can be stated in terms of months rather than levels, correct?

[00:05:30] Speaker 04:
And in 3553 for substantial assistance, it has its own special rules that some judges require levels, some judges require months.

[00:05:39] Speaker 03:
The commission and the law do not require anything specific about that, right?

[00:05:44] Speaker 04:
We hardly review it.

[00:05:46] Speaker 03:
So can you get back to my question?

[00:05:48] Speaker 03:
Under your interpretation of the text of 1B1.10, what work does that

[00:05:54] Speaker 03:
exception for substantial assistance.

[00:05:56] Speaker 04:
Well, if you get a substantial assistance variance, then it wouldn't be counted.

[00:06:01] Speaker 04:
Like it's, there are any number of variants.

[00:06:03] Speaker 03:
Then you are eligible for the reduction, right?

[00:06:06] Speaker 04:
Yes, you are definitely eligible.

[00:06:08] Speaker 03:
But presumably to use your Exclusio, it would cut the other way so that if we have this exception for substantial assistance downward variances and departures, we don't for others, right?

[00:06:22] Speaker 04:
Your honor the this point that your honor is making I think is a fair one in the sense that Substantial assistance does have its own mechanism, and if it does have a cutout for how Substantial assistance is treated Your inference from that is that that means that everyone else who's sentenced under every other variance or departure

[00:06:48] Speaker 03:
is not taken into account in calculating the amended guideline range.

[00:06:55] Speaker 04:
Well, I would collapse to the position that Judge Sabra took, which is that that sort of position first treats people who are more active.

[00:07:05] Speaker 03:
Leads treated as a matter of text.

[00:07:07] Speaker 03:
I understand that given the numbers and the pressures in Southern California, everybody gets a downward departure.

[00:07:15] Speaker 03:
I get that.

[00:07:18] Speaker 03:
This is law for the circuit.

[00:07:20] Speaker 03:
It's a nationally applicable rule.

[00:07:21] Speaker 03:
Tell me what that exception does.

[00:07:26] Speaker 04:
I think that that exception is narrowly tailored for the unique situation of substantial assistance, which means that there are reductions that apply to substantial assistance people that don't apply to regular folk, but the departure that a person can get a sentence underneath the guideline range, like when you reassess what I think the work with the

[00:07:49] Speaker 04:
Policy statement is meant to mean is that the district court takes what it did at sentencing and it reexamines it in light of the new law.

[00:07:58] Speaker 04:
I think that all guideline departures and I argue this in my brief includes departure decisions that

[00:08:04] Speaker 04:
The whole purpose of 3553 is that these things are bundled so that... Well, now, wait a second.

[00:08:10] Speaker 02:
The departure is a specific term of art, is it not?

[00:08:13] Speaker 02:
And it basically takes it out of the guideline range and then the district court can depart either upward or downward because the facts of a particular case warrant treatment then is different from the run of the mine cases resulting in the guideline range.

[00:08:31] Speaker 04:
Candidly, Your Honor, I think that's an atavistic view.

[00:08:34] Speaker 04:
I think that's a view of the guidelines that used to exist when there was a distinction between departures and variances.

[00:08:40] Speaker 04:
But both this court eliminated that distinction in the Mohammed case, and the Sentencing Commission did the exact same thing this year.

[00:08:50] Speaker 04:
In fact, the proof of practice of what actually happens in court and affects guys like Mr. Perry, who fought for our country for 10 years,

[00:08:59] Speaker 02:
And the district court considered all that and said, you know, the aggravating factors here outweigh the mitigating factors because he distributed the fentanyl that caused the death of an individual and he continued to deal after the death and that those aggravating factors warranted a departure from the guideline range.

[00:09:22] Speaker 04:
The district court gave him a departure under the guideline range.

[00:09:26] Speaker 04:
That's the problem.

[00:09:27] Speaker 04:
The whole point is the district court found mitigation beyond what the government recommended.

[00:09:31] Speaker 04:
That's what's rendering him ineligible is the fact that his case was found to be mitigated.

[00:09:37] Speaker 04:
But my point about the departures and the variances is valid.

[00:09:39] Speaker 02:
Well, his case was found to be aggravating, not mitigating.

[00:09:43] Speaker 02:
The court weighed aggravating and mitigating factors and essentially concluded that the aggravating factors

[00:09:49] Speaker 04:
He gave a 180-month sentence on a 216-month guideline range.

[00:09:53] Speaker 04:
It went under.

[00:09:54] Speaker 04:
So it departed down.

[00:09:55] Speaker 03:
Could I, Mr. Zugman, could I ask you about the discretionary prong of the 25, sorry, 3582C2?

[00:10:04] Speaker 03:
You said in your brief that the district judge had overlooked mitigating history for Mr. Curie.

[00:10:13] Speaker 03:
He referred to it

[00:10:15] Speaker 03:
in his written opinion and said he stood by the 180-month sentence.

[00:10:20] Speaker 03:
How would that be an abuse of discretion?

[00:10:23] Speaker 04:
I have to win the first point.

[00:10:24] Speaker 04:
In order for me to get my foot in the door, I have to be right that the district court should have applied the lower guideline range.

[00:10:31] Speaker 04:
It should have found that he was eligible.

[00:10:32] Speaker 03:
You never get to that point if we don't... I'm asking you, if we were to get to that point, how do we find an abuse of discretion?

[00:10:38] Speaker 04:
because the district court didn't say, and even if the guideline range were reduced to 168 months to 189 months or whatever, 216, whatever the number is, I find that a sentence of 180 in that guideline range, and it's actually a bigger than 24-month variance.

[00:10:53] Speaker 03:
This isn't like that original sentencing where you're covering your bets on a guideline issue.

[00:11:00] Speaker 03:
He's taking two steps.

[00:11:02] Speaker 03:
Is the defendant eligible?

[00:11:04] Speaker 03:
Second, if he is, would I exercise my discretion?

[00:11:08] Speaker 03:
He says no and no.

[00:11:10] Speaker 03:
Now, you've got to win both of those issues.

[00:11:12] Speaker 03:
Where's the abuse of discretion on the... Because I didn't get a fair shot, Your Honor.

[00:11:16] Speaker 04:
And the reason I didn't get a fair shot is we were there for a rematch.

[00:11:19] Speaker 04:
Remember, Your Honor, I tried to take a knee.

[00:11:22] Speaker 04:
I took an Anders brief because I thought that there was more danger by appealing than not.

[00:11:26] Speaker 04:
We got back there and all of a sudden the status point law changed.

[00:11:30] Speaker 04:
So all of a sudden I had an issue.

[00:11:31] Speaker 03:
A new opportunity, right.

[00:11:33] Speaker 04:
But we didn't have full briefing.

[00:11:34] Speaker 04:
The government submitted its brief after I argued it.

[00:11:37] Speaker 04:
The judge, Judge Huey, who I greatly respect, issued an order.

[00:11:42] Speaker 04:
And Your Honor is totally right that Judge Huey did list out the two tours of duty that Mr. Kerry did and the damage he suffered to his body and his brain.

[00:11:50] Speaker 04:
It's a very sad situation, Your Honor.

[00:11:52] Speaker 04:
And I think if you just give me a chance to make my case,

[00:11:55] Speaker 01:
Maybe you'll be persuaded, maybe you won't.

[00:12:00] Speaker 01:
First of all, he declined to re-sentence and he said if he did re-sentence it would be the same.

[00:12:05] Speaker 01:
So why do you think if you made a case it would make a difference?

[00:12:09] Speaker 04:
Let's actually make it completely clear, Your Honor.

[00:12:11] Speaker 04:
Judge Huey indicated that it might not even be 180 months because Mr. Carey should have waived his appeal.

[00:12:17] Speaker 04:
So I know that I'm playing with fire, as it were, but I think if I can just get a chance to make mitigation, that number is not going up.

[00:12:26] Speaker 01:
Well, let me ask you

[00:12:28] Speaker 01:
what do we do about the limited remand what you know the remand was not for re sentencing and so having difficulty

[00:12:38] Speaker 01:
seen how the district court could abuse this discretion in declining to re-sentence when there was a limited remand that did not require re-sentencing.

[00:12:47] Speaker 04:
That's a jurisdictional point, Your Honor.

[00:12:49] Speaker 04:
And Your Honor is correct to say if the hook isn't there, then the hook isn't there.

[00:12:52] Speaker 04:
I did make the motion.

[00:12:54] Speaker 04:
The district court did accept it.

[00:12:56] Speaker 04:
The government did not argue a lack of jurisdiction.

[00:12:58] Speaker 04:
I could go refile all the same stuff.

[00:13:00] Speaker 01:
But it's not really a jurisdictional issue.

[00:13:02] Speaker 01:
It's whether or not

[00:13:03] Speaker 01:
The the remand was complied with and the scope of the remand scope of the remand I Tried to open up that remand.

[00:13:11] Speaker 04:
I did every I pulled on it so hard I'm over time.

[00:13:16] Speaker 01:
Thank you.

[00:13:16] Speaker 01:
We'll give you a minute for thank you

[00:13:36] Speaker 00:
Good morning and may it please the court, Andrew Hayden on behalf of the United States.

[00:13:40] Speaker 00:
The district court properly denied the motion to reduce Mr. Carey's sentence.

[00:13:46] Speaker 00:
As this court held as recently as December in United States versus Mickey, neither 3582C2 or 1B1.10 violate the non-delegation doctrine.

[00:13:56] Speaker 00:
And that has extended to this case, it can't be maintained that the district court plainly erred when it used the commentary to find that Mr. Carey was ineligible

[00:14:04] Speaker 03:
Did it use the commentary?

[00:14:05] Speaker 03:
Or can you just reach that conclusion based on 1B1.10 itself?

[00:14:11] Speaker 00:
I think you have to use the commentary because of the change in Mr. Carey's criminal history category, Your Honor.

[00:14:18] Speaker 03:
Why?

[00:14:19] Speaker 03:
The question is what is the meaning of amended guideline range, right?

[00:14:26] Speaker 00:
Yes, the applicable guideline range, yes, Your Honor.

[00:14:31] Speaker 03:
Yeah, the amended guideline range that would have been applicable to the defendant, right?

[00:14:35] Speaker 03:
And for that, all we need to do is change the criminal history category, right?

[00:14:38] Speaker 03:
Yes, sir.

[00:14:40] Speaker 03:
And so why can't we reach the district court's conclusion on eligibility just on the text of the guideline, the policy statement, without depending on the commentary, which makes it crystal clear?

[00:14:57] Speaker 00:
Well, your honor, I think in Mr. Carey's case, his guideline range would have been lower if he had gotten the two additional points that had been a part of his plea agreement under 5K 2.0.

[00:15:08] Speaker 03:
So there was a plea agreement that included a departure.

[00:15:11] Speaker 03:
Yes.

[00:15:11] Speaker 03:
Right?

[00:15:12] Speaker 03:
But that's a departure.

[00:15:13] Speaker 03:
Yes.

[00:15:13] Speaker 03:
It doesn't change the guideline range, does it?

[00:15:17] Speaker 00:
It does in the way that it was originally calculated.

[00:15:20] Speaker 00:
It was done as a two-point departure, yes, Your Honor.

[00:15:23] Speaker 03:
It was a departure?

[00:15:25] Speaker 00:
Yes, it was a departure.

[00:15:25] Speaker 03:
It was not a change in the applicable guideline range?

[00:15:29] Speaker 00:
Correct.

[00:15:30] Speaker 03:
Okay.

[00:15:32] Speaker 03:
If you think 1B1.10 is ambiguous, do you?

[00:15:37] Speaker 03:
On this question about what the applicable guideline range is?

[00:15:41] Speaker 00:
Your Honor, I think that

[00:15:43] Speaker 00:
First of all well, I want to make sure I answer the court's question, but I think to briefly touch on it I don't think that there's a plain error here, and I think yes or no sure Ambiguous or not yes, yes it is ambiguous it ambiguous enough that it to the extent that the court needed to look at that yes runner Okay, let me ask you the question.

[00:16:06] Speaker 03:
I asked your colleague is

[00:16:08] Speaker 03:
If you think this is ambiguous, we're supposed to use textual tools to try to sort this thing out.

[00:16:15] Speaker 03:
What work do you think the exception for substantial assistance departures does?

[00:16:19] Speaker 00:
So 1B1.10 has a specific carve out for that.

[00:16:25] Speaker 00:
It's 1B1.10 2B.

[00:16:26] Speaker 03:
And it's carving substantial assistance out from what?

[00:16:31] Speaker 03:
The universe of departures and variances, right?

[00:16:34] Speaker 03:
Yes, you are.

[00:16:36] Speaker 03:
We don't have a 5K1 departure here.

[00:16:38] Speaker 03:
We do not.

[00:16:40] Speaker 03:
So why is this ambiguous?

[00:16:43] Speaker 00:
Because in this case, Mr. Carey had negotiated for a departure under 5K2.0, which was reflected as a plea agreement, and he did get that.

[00:16:50] Speaker 01:
That doesn't make the guideline ambiguous.

[00:16:53] Speaker 01:
What the parties negotiated for cannot make the guideline ambiguous.

[00:16:58] Speaker 01:
We look at the wording of the guideline to determine ambiguity.

[00:17:04] Speaker 01:
It doesn't matter what the parties agreed to, what they negotiated.

[00:17:08] Speaker 01:
We're looking at the text.

[00:17:10] Speaker 01:
So the text of the guidelines.

[00:17:13] Speaker 00:
And that's our point on, I think that's the main point here.

[00:17:16] Speaker 00:
You can read this and you can determine that that's why 1B1.10 had the amendment in 2011 to make sure that everyone was stopping at the same procedural point when this was being considered.

[00:17:27] Speaker 00:
And to go to a question or a comment that was made just to affirm an underlying principle, this wasn't a sentencing and it wasn't a full re-sentencing.

[00:17:35] Speaker 00:
This is a motion to reduce sentence.

[00:17:37] Speaker 00:
And so there are different constitutional implications here.

[00:17:40] Speaker 00:
This is a mechanism that where Mr. Kerry doesn't have all of the traditional methods of sentencing available to him under the federal rules of criminal procedure.

[00:17:49] Speaker 00:
He doesn't have a right to appear or to allocute.

[00:17:51] Speaker 00:
But in this case, he got to do all those things.

[00:17:55] Speaker 00:
Your honor, so first of all, I do want to go back to the plain error.

[00:17:58] Speaker 00:
I don't think it's where a lot of time should necessarily be spent.

[00:18:02] Speaker 00:
But in this court's opinion, the United States versus Hackett from 2024, there was an objection to the use of the guidelines that were in the commentary in the trial court below.

[00:18:13] Speaker 00:
But the Kaiser question was not raised.

[00:18:16] Speaker 00:
And this court found that it was plain error because the objection hadn't been sufficiently specific to provide meaningful review by the district court.

[00:18:23] Speaker 00:
I think the same standard should be applied here.

[00:18:26] Speaker 00:
The district court, Judge Huey, didn't have an opportunity to review the argument that's now being pursued in front of this court.

[00:18:32] Speaker 00:
But even if this court applied an over review, I think that on the first prong of Brito, the eligibility prong, I think Mr. Kerry just simply wasn't eligible.

[00:18:44] Speaker 00:
And the district court properly found that.

[00:18:46] Speaker 00:
But onto the second prong, the discretionary prong, to emphasize the point, my friend and colleague on their side said they didn't get a fair shot.

[00:18:54] Speaker 00:
But I don't think that's reflected in the record.

[00:18:56] Speaker 00:
If you look at the record, what happened is Mr. Carey actually did allocute, and he did describe his programming.

[00:19:05] Speaker 00:
And my friend and colleague on their side had filed almost a 50-page brief

[00:19:09] Speaker 00:
before the district court, which included all the certificates of his programming.

[00:19:13] Speaker 00:
And Judge Huey explained to him, those two points wouldn't matter.

[00:19:17] Speaker 00:
It doesn't matter to me because of the balancing of the 3553A factors.

[00:19:23] Speaker 00:
And so Mr. Carey got to file a motion, file extended paperwork.

[00:19:27] Speaker 00:
He got to allocute.

[00:19:27] Speaker 00:
He interacted directly with Judge Huey.

[00:19:30] Speaker 00:
There was additional briefing, and then there was a written order from the court

[00:19:33] Speaker 00:
We're on ER page 8, the district court explained.

[00:19:37] Speaker 00:
Even if you were eligible, this wouldn't change.

[00:19:40] Speaker 00:
It wouldn't outweigh the factors.

[00:19:41] Speaker 00:
The programming is important for you.

[00:19:43] Speaker 00:
I want you to have purpose, but it wouldn't change.

[00:19:48] Speaker 00:
Unless the court had further questions, the United States would submit.

[00:19:51] Speaker 01:
Thank you, counsel.

[00:20:00] Speaker 04:
Your honors, I would like to thank your honors for your careful attention to this case.

[00:20:04] Speaker 04:
I would just note that I did cite at least

[00:20:07] Speaker 04:
two cases, including United States versus Horn from the 11th Circuit, where they found that Kaiser was an argument and not a claim.

[00:20:15] Speaker 01:
Well, of course you know that's not binding on us.

[00:20:18] Speaker 04:
I do, but who wants to create circuit splits?

[00:20:21] Speaker 01:
It's just encourage litigation.

[00:20:22] Speaker 04:
Well, sometimes it's necessary.

[00:20:24] Speaker 04:
That's understandable.

[00:20:25] Speaker 03:
You don't want to discourage that too much.

[00:20:29] Speaker 04:
That's a fair point too, Your Honor.

[00:20:31] Speaker 04:
Thank you.

[00:20:32] Speaker 04:
I submit the matter.

[00:20:32] Speaker 01:
Thank you, counsel.

[00:20:33] Speaker 01:
Thank you to both counsels.

[00:20:35] Speaker 01:
for your helpful arguments.

[00:20:36] Speaker 01:
The case is argued to be submitted for decision by court.