[00:00:01] Speaker 02:
Okay, looks like we're ready for our final argument this morning.

[00:00:04] Speaker 02:
23-1223 United States versus Bradley.

[00:00:14] Speaker 00:
Good morning.

[00:00:15] Speaker 00:
May I please the court?

[00:00:16] Speaker 00:
My name is Eric Klein.

[00:00:17] Speaker 00:
I represent Mr. Jason Bradley in this appeal.

[00:00:21] Speaker 00:
The question in this compassionate release appeal is not whether there are extraordinary compelling circumstances that would justify a sentence reduction.

[00:00:30] Speaker 00:
The two questions, and they're somewhat related, are one, whether the district court erroneously ignored the facts giving rise to those extraordinary compelling circumstances and conducting its 3553A analysis, and two, whether the court erred in conducting a 3553A analysis that ignored changes in factual circumstances.

[00:00:52] Speaker 00:
There's no question that under this court's precedent,

[00:00:55] Speaker 00:
The district court could deny Mr. Bradley's motion based solely on the 3553A factors.

[00:01:01] Speaker 00:
But in doing so, the court was required to conduct a proper 3553A analysis.

[00:01:08] Speaker 01:
Council, I want to focus on the preservation component of this argument.

[00:01:12] Speaker 01:
So Hall does agree with your understanding.

[00:01:17] Speaker 01:
Hall requires district courts to consider the extraordinary and compelling circumstances as part of 3553A.

[00:01:24] Speaker 01:
Is there a sua sponte obligation to do that, or is that something that the defendant must argue to the court to say, when you're conducting the 3553A analysis, focus please on these underlying extraordinary and compelling circumstances?

[00:01:38] Speaker 00:
Well, Your Honor, I think that that is part of the court's obligation in conducting the 3553A analysis.

[00:01:45] Speaker 00:
And so when we said the court must conduct a 3553A analysis, that necessarily includes conducting it properly.

[00:01:53] Speaker 00:
And so I think that, and counsel in the first argument before the court today talked about how something's a nuance of the argument that was made, and I think that's the same thing here.

[00:02:04] Speaker 00:
But I think beyond that, we did make specific arguments about the need to consider the circumstances in conducting that analysis.

[00:02:16] Speaker 00:
And if the court looks at the district court's order talks about, you know,

[00:02:21] Speaker 00:
compassionate release worked the way that Mr. Bradley says anyone who serves significant time would be eligible.

[00:02:27] Speaker 00:
We had argued not just that he had served a significant amount of time, but he served a significant amount of time and that his children now need him.

[00:02:36] Speaker 00:
So that is part of that analysis.

[00:02:39] Speaker 01:
Where did you make that argument?

[00:02:41] Speaker 01:
I mean, what concerns me is that if,

[00:02:47] Speaker 01:
Unless district courts have an obligation under 3553A to comply with HALD without any sort of argument to support the consideration of extraordinary and compelling circumstances, your mention of the kids and his need to take care of the kids was sort of in connection with your discussion of the release plan.

[00:03:10] Speaker 01:
It wasn't an independently articulated basis

[00:03:14] Speaker 01:
under 3553, maybe I'm misunderstanding it, but I don't see that.

[00:03:19] Speaker 00:
Well, I think part of it, I think in reply to the government's argument, there was a specific connection between the amount of time he had served and the need to take care of his children.

[00:03:29] Speaker 00:
And that's in volume two, page 152 in the reply.

[00:03:36] Speaker 00:
And so I think that specific argument was made.

[00:03:39] Speaker 00:
Now, did we ever say specifically to the district court

[00:03:44] Speaker 00:
in conducting this 3553A analysis, engage in this, what Hald requires.

[00:03:50] Speaker 00:
But there are other parts of a 3553A analysis we didn't walk the district court through.

[00:03:55] Speaker 00:
Here's how you have to do a 3553A analysis in this context.

[00:04:00] Speaker 00:
And I think that that is on the district court.

[00:04:03] Speaker 00:
And another problem here is that because of the way, because there was no hearing in the way this played out, there was no indication

[00:04:11] Speaker 00:
to the defense that the district court would engage in this flawed analysis.

[00:04:16] Speaker 01:
Is there any difference between, let's say, defense counsel is making an argument under 3553A, doesn't advance an argument on disparity to the district court, and on appeal does?

[00:04:27] Speaker 00:
I'm sorry, I just didn't understand.

[00:04:29] Speaker 00:
Doesn't advance an argument?

[00:04:31] Speaker 01:
Like under A6 or something.

[00:04:32] Speaker 01:
Doesn't articulate an argument on disparity, but then on appeal, that argument is made.

[00:04:37] Speaker 01:
Would we say, well, you didn't have to specifically argue that with district court because the district court had to look at 3553A, which means all parts.

[00:04:44] Speaker 01:
That's sort of how I'm understanding your reading of the district court's requirements to implement HALD.

[00:04:52] Speaker 00:
I think it's a difference in kind of the manner in which the court engages in the 3553A analysis, which is we said the court needs to engage in a proper analysis versus the specific legal theories.

[00:05:04] Speaker 00:
And so I think that when the government argues

[00:05:07] Speaker 00:
waiver, and I don't think really waiver applies here.

[00:05:10] Speaker 00:
We're really talking about potentially forfeiture.

[00:05:13] Speaker 00:
That's where the cases the government relies on of McDonald and Richardson come in, where that was a completely different legal theory on appeal and really changed things up.

[00:05:23] Speaker 00:
And so I think that's where if there was, you know, we're coming here and saying, well, this specific factor, A6 is what it was, that would be a different thing, and I think fall under the government's analysis.

[00:05:34] Speaker 00:
But I think there's no question we

[00:05:36] Speaker 00:
argued that the court needed to engage in a proper 3553A analysis.

[00:05:40] Speaker 00:
And at the citation I just gave, the court did specifically say, in this context of the propriety length of the sentence, argued that in the context of the extraordinary compelling circumstances.

[00:05:55] Speaker 00:
And so I think Judge Wilson agrees with me.

[00:05:58] Speaker 02:
What about the US versus Wilson?

[00:06:01] Speaker 02:
How would you respond to that case as really suggesting

[00:06:06] Speaker 02:
a different rule.

[00:06:08] Speaker 00:
And I'm going to ask, Your Honor, what aspect of Wilson we're talking about.

[00:06:15] Speaker 02:
Well, but you really don't need to spell out in detail your reasons for concluding that the 3553A factors don't merit compassionate release.

[00:06:25] Speaker 00:
Thank you.

[00:06:25] Speaker 00:
Well, I think that is somewhat the conception which the Supreme Court cited in 2022

[00:06:36] Speaker 00:
I don't want to say really change what district courts are doing, but clarified.

[00:06:41] Speaker 00:
And in Concepcion, the Supreme Court said that while district courts don't need to expressly rebut each argument, the court must make clear that it reasoned through the parties' arguments.

[00:07:00] Speaker 00:
And then it's at 142, Supreme Court reporter at 2404,

[00:07:05] Speaker 00:
And at 24.05, the Concepcion court said that the district court is required to demonstrate that it's considered the argument for it.

[00:07:13] Speaker 00:
And so at Holland, actually, this court talked about kind of whether or not the district court could just say denied or had to do something similar to what it would do at an original sentencing.

[00:07:25] Speaker 00:
I think Concepcion clarified that.

[00:07:27] Speaker 00:
And so what we have here in the district court's order is nothing indicating that the court actually gave

[00:07:37] Speaker 00:
consideration that are reasoned through these arguments.

[00:07:40] Speaker 00:
And so I think that's what we're really lacking on both of our arguments, as far as the facts giving rise to extraordinary and compelling circumstances, as well as the changed facts and circumstances since the original sentencing.

[00:07:52] Speaker 00:
And so I don't think that a district court needs to give a lengthy dissertation refuting each aspect.

[00:07:58] Speaker 00:
But it does need to demonstrate, so that there could be meaningful appellate review, it does need to demonstrate that it gave

[00:08:05] Speaker 00:
that are considered and reasoned through the arguments.

[00:08:11] Speaker 02:
And you don't think that Judge Grimmer's order here gives adequate information for us to understand the basis for the denial?

[00:08:20] Speaker 00:
Correct.

[00:08:20] Speaker 00:
I think that what we have here is in a five and a little bit page order, the first three pages are just kind of recounting the procedural history.

[00:08:30] Speaker 00:
And then we've got two pages of the first part is just

[00:08:33] Speaker 00:
kind of saying, here are the arguments Mr. Bradley makes, but then turning to 3553A factors without showing that the court gave any consideration to those arguments.

[00:08:45] Speaker 00:
And really, the only thing that kind of different since the original sentencing that the court acknowledges is the amount of time that has passed.

[00:08:53] Speaker 00:
And that's not really, under our second argument, a changed fact or circumstance.

[00:08:57] Speaker 00:
That's just the passage of time.

[00:09:03] Speaker 00:
And so those are essentially arguments.

[00:09:08] Speaker 00:
We are not asking this court to say that compassionate release is appropriate.

[00:09:12] Speaker 00:
We're asking this court to remand for the district court to conduct the proper analysis and give this court, if it denies, again, to give this court an appellate record on which it can make an appropriate decision.

[00:09:24] Speaker 00:
I think that we might not be here.

[00:09:27] Speaker 02:
Are you aware of any other circuit opinions that have adopted the

[00:09:33] Speaker 02:
reasoning that you want us to adopt?

[00:09:38] Speaker 00:
What aspect of the reasoning?

[00:09:39] Speaker 00:
I think it's from Hald and our first argument is from Hald, our second argument is from Concepcion.

[00:09:46] Speaker 00:
So if there's no other questions this time, I'll reserve my remaining time for rebuttal.

[00:09:51] Speaker 00:
Thank you.

[00:10:11] Speaker 03:
May it please the court, Jess McKeel for the United States.

[00:10:15] Speaker 03:
Your honors, in a halt, this court talked about in the compassionate release context that this court is not in the business of grading the papers of its very busy colleagues.

[00:10:25] Speaker 03:
But that's exactly what Mr. Bradley is seeking this court to do on appeal.

[00:10:30] Speaker 03:
And with both claims, which he's described as separate but related, he's challenging the level of detail in Judge Brimmer's order.

[00:10:36] Speaker 01:
Well, I don't think he's challenging the level of detail on the hall there.

[00:10:40] Speaker 01:
You know, I think that the hall there, as I understand it, is a legal mistake that

[00:10:47] Speaker 01:
the district court engaged in by not considering extraordinary and compelling circumstances as part of the 3553A analysis.

[00:10:54] Speaker 01:
That would be a legal error under Hall.

[00:10:57] Speaker 03:
My understanding is that what we have in the district court's order is a pretty thorough discussion of these facts underlying the alleged extraordinary and compelling circumstances.

[00:11:07] Speaker 01:
But that's not as related to 3553A.

[00:11:10] Speaker 03:
Well, Your Honor, 3553A

[00:11:16] Speaker 03:
First of all, I would kind of harken back to this court's standard of review.

[00:11:20] Speaker 03:
There is an abuse of discretion standard.

[00:11:22] Speaker 03:
So what this court needs to be considering is does it have a definite and firm conviction that those facts... Or legal error.

[00:11:28] Speaker 01:
Legal error would satisfy abuse of discretion too.

[00:11:31] Speaker 03:
That is true.

[00:11:32] Speaker 03:
But in this case, you know, we know that the court did consider these facts.

[00:11:36] Speaker 03:
It cited and listed the various filings.

[00:11:38] Speaker 03:
Page one, it cites the motion.

[00:11:40] Speaker 03:
Page two, it cites the nine supplements.

[00:11:42] Speaker 03:
Page two, it also summarizes all of the defendant's claims.

[00:11:47] Speaker 03:
Page four, it reiterates his claims, talks about the need for the children to have a caregiver, talks about the defendant's health, talks about the pandemic, then it even recognized

[00:11:59] Speaker 03:
that that could well be a factor under 1B1.13 Note 1 as an extraordinarily compelling circumstance.

[00:12:08] Speaker 03:
The court then, however, said it's not moved, it's not persuaded as to the 3553A analysis.

[00:12:16] Speaker 03:
And I think in Hald, Hald was reviewing three different district court decisions.

[00:12:21] Speaker 03:
What the district court did here largely tracks what the district courts did in Halt, and Halt said that was sufficient.

[00:12:29] Speaker 03:
Now, there's Sands, Halt, and Wesley were the three district court decisions at issue in the appeal in Halt.

[00:12:37] Speaker 03:
Sands was the one that provided probably the most detail, but still not very much.

[00:12:42] Speaker 03:
It talked about the different medical conditions in the extraordinarily compelling prong,

[00:12:46] Speaker 03:
And it said, you know, government even concedes that could be extraordinary and compelling.

[00:12:51] Speaker 03:
But it didn't decide it.

[00:12:52] Speaker 03:
It said, I'm going to move on to 3553A.

[00:12:56] Speaker 03:
Didn't then specifically tie the medical conditions argument to any of the 3553A factors.

[00:13:03] Speaker 03:
Didn't talk about it in the context of the defendant's history and characteristics, any of it.

[00:13:07] Speaker 03:
It just made a throwaway argument at the very end.

[00:13:12] Speaker 01:
the whole point of compassionate release requires district courts.

[00:13:16] Speaker 01:
And this is what Hall was essentially just articulating.

[00:13:18] Speaker 01:
I don't think Hall was breaking any ground.

[00:13:20] Speaker 01:
Hall was sticking close to the statutory text and purpose in saying that a court doesn't have to go through the motions of

[00:13:30] Speaker 01:
ruling on both, you know, if it finds one doesn't satisfy.

[00:13:35] Speaker 01:
But if you say, okay, I spot the defendant on extraordinary compelling, you still have to consider those facts as part of the 3553A analysis because that's why the defendant is appearing before the court for a second look.

[00:13:49] Speaker 03:
Well, I think first of all, Hald kind of offered, it presented that discussion really as a caveat.

[00:13:55] Speaker 03:
It said we are not saying that the court can just not consider that.

[00:13:59] Speaker 03:
It said that those facts are relevant to a 3553A analysis.

[00:14:03] Speaker 03:
But it also provided the context that we have here.

[00:14:08] Speaker 03:
Again, the three different district court decisions didn't go into any sort of extensive discussion.

[00:14:13] Speaker 03:
To use this court's often language, it didn't use magic words.

[00:14:17] Speaker 03:
It didn't go in through any ritualistic incantation.

[00:14:20] Speaker 03:
And it did not specifically reconsider the facts underlying extraordinary and appealing circumstances as to each 3553A prong.

[00:14:29] Speaker 03:
Now, again, as Your Honor pointed out for the waiver issue, the defendant himself did not do that.

[00:14:34] Speaker 03:
Now, I think it's difficult to say that courts have to consider non-frivolous arguments and then chastise the district court for not considering an argument that was never made.

[00:14:45] Speaker 03:
Now, in the defendant's opening briefing, he marches through each of these 3553A factors.

[00:14:50] Speaker 03:
He says the caregiver analysis goes to A1.

[00:14:54] Speaker 03:
The caregiver analysis, it would be punishment to watch his kids grow up in a foster system.

[00:15:01] Speaker 03:
Goes to A2.

[00:15:02] Speaker 03:
Goes through each of these factors in a way that he just didn't in district court.

[00:15:07] Speaker 03:
Could have.

[00:15:08] Speaker 01:
So it seems like, if I understand the government's argument, is that you would perhaps agree that there was error under HALT, but it isn't preserved here.

[00:15:17] Speaker 01:
Is that a fair reading of the government's argument?

[00:15:19] Speaker 03:
Your Honor, I do not believe that there was error.

[00:15:21] Speaker 03:
I would agree that there was waiver.

[00:15:23] Speaker 03:
I don't think that the court would even need to... Well then what was waived?

[00:15:25] Speaker 01:
If there's no error, what exactly was waived?

[00:15:27] Speaker 01:
The argument about Hall?

[00:15:28] Speaker 03:
There's a forfeiture first.

[00:15:30] Speaker 03:
So first that the defendant did not present these 3553A factors, the facts as tied to the 3553A analysis.

[00:15:39] Speaker 03:
So it's forfeited in district court.

[00:15:41] Speaker 03:
Then once it gets a peer, an argument that's forfeited in district court is waived on appeal from Loeffler or Richardson.

[00:15:48] Speaker 03:
So

[00:15:49] Speaker 03:
you know, if there's a waiver, you don't even necessarily have to assume that there is, in fact, error.

[00:15:53] Speaker 03:
And I would argue that there's not error because that requires us to say that we have a definite and firm conviction that the court did not consider those facts as part of its 3553A analysis.

[00:16:03] Speaker 03:
And I think

[00:16:03] Speaker 03:
I think that's hard to do.

[00:16:05] Speaker 01:
But the government agrees that Hald does tell district courts that even if you spot a defendant, extraordinary and compelling circumstances, you still have to consider those under 3553A.

[00:16:16] Speaker 01:
You're just saying that Judge Brimmer did that.

[00:16:19] Speaker 01:
And if he didn't, that's forfeited.

[00:16:24] Speaker 03:
I think Hald can be read in that way.

[00:16:26] Speaker 03:
In that way, yeah.

[00:16:27] Speaker 03:
I think Hald presented it as a caveat, didn't present it as pronouncing a holding.

[00:16:32] Speaker 03:
But I do think it can be read that way.

[00:16:35] Speaker 03:
But again, what Halt said was, and actually that argument came up frankly in dicta.

[00:16:40] Speaker 03:
It said it wasn't even presented, but we're just saying, hey, you can't ignore this stuff.

[00:16:45] Speaker 03:
And then it went on to say, even if the argument was made, the district courts in this case did enough.

[00:16:53] Speaker 03:
So if you actually look at what the district courts did, it's pretty similar to what happened here.

[00:16:58] Speaker 03:
It went through a pretty extensive discussion under the extraordinary and compelling prong

[00:17:02] Speaker 03:
than if anything made a throwaway line in the 3553A analysis.

[00:17:08] Speaker 03:
Sands is the one that said at the very end, again, it didn't tie the medical conditions to any of the 3553A factors.

[00:17:18] Speaker 03:
It just said, you know, even if he's got these medical conditions, we have a pandemic, the sentence is still sufficient but not greater than necessary.

[00:17:26] Speaker 03:
Hald, the eponymous district court decision did even less.

[00:17:30] Speaker 03:
And Hald,

[00:17:32] Speaker 03:
recognize that hypertension and obesity could well be factors leading to, and especially in the context of the COVID pandemic, could well be facts towards an extraordinary and compelling circumstances.

[00:17:44] Speaker 01:
Council, do you think that under Concepcion, if a district court thinks, if presented on compassionate release, district court thinks the original sentence is still justified under 3553A, it can deny compassionate release under Concepcion without going through any 3553A analysis?

[00:18:02] Speaker 03:
So my reading of Concepcion, it talks about

[00:18:05] Speaker 03:
towards the beginning it says why it was granting cert.

[00:18:08] Speaker 03:
It said that some courts concluded that intervening changes of law and fact must be considered, some courts said it may not be considered, and some courts said it may be considered.

[00:18:20] Speaker 03:
I believe under this court's prior precedent it was under the must category.

[00:18:24] Speaker 03:
Concepcion ultimately came down in the may category.

[00:18:27] Speaker 03:
It said that rehabilitation, intervening changes of law, intervening changes of fact may be considered by district courts.

[00:18:35] Speaker 03:
on first-time motions did not say must.

[00:18:38] Speaker 03:
But it did reiterate that district courts must consider non-frivolous arguments.

[00:18:43] Speaker 03:
So perhaps those two roll into one another, I'm not entirely sure.

[00:18:47] Speaker 03:
But Hald certainly said that district courts are not required to march through each 3553A factor, not even required to mention them by name, let alone afford them equal weight.

[00:19:00] Speaker 03:
The district court order in this case

[00:19:03] Speaker 03:
It shows which factors were most important to Judge Grimmer.

[00:19:06] Speaker 03:
It's A2A and A2B.

[00:19:08] Speaker 03:
He specifically cites those.

[00:19:09] Speaker 01:
But it seems like the district court was focused on factors that supported the original sentence.

[00:19:13] Speaker 01:
That seems troubling for this posture.

[00:19:15] Speaker 01:
Don't you agree?

[00:19:17] Speaker 03:
Your Honor, I think that kind of goes to the defendant's second claim that this was a retrospective analysis.

[00:19:21] Speaker 03:
And I don't think it was retrospective for several reasons.

[00:19:24] Speaker 03:
First,

[00:19:25] Speaker 03:
Again, the district court did recognize how much time had been served.

[00:19:30] Speaker 03:
Talked about 63% of the sentence.

[00:19:32] Speaker 03:
It's not very much when you consider that this was a significant downward variance at the beginning.

[00:19:37] Speaker 03:
It was 180 months.

[00:19:39] Speaker 03:
Originally, the low end was 262.

[00:19:42] Speaker 03:
So at the very outset, his sentence was about 69% of the low end range.

[00:19:47] Speaker 03:
He has now served 63% of that low sentence.

[00:19:51] Speaker 03:
So that's the first piece that's not retrospective.

[00:19:54] Speaker 03:
The second, in discussing the 63%, he specifically referenced good time credits.

[00:20:01] Speaker 03:
What is good time credits except for some acknowledgement of good time?

[00:20:04] Speaker 03:
That goes to the sense of rehabilitation.

[00:20:06] Speaker 03:
It is not spelling out, hey, he only had two infractions, but again, we're not requiring magic words.

[00:20:13] Speaker 03:
We're not requiring an extensive discussion.

[00:20:15] Speaker 03:
Three, there's the quote that the defendant said he has had time to break old patterns.

[00:20:22] Speaker 03:
Well then, the court specifically cited the page in the motion where the defense marched through all of these different rehabilitation factors that he had been working, that he had gotten certification, only had the two infractions, that he had been essentially a model inmate.

[00:20:38] Speaker 03:
It's hard to see how the court could have quoted from the defense's motion, cited to the page, and then ignored that same sentence.

[00:20:46] Speaker 03:
It was clearly aware of it, it considered it,

[00:20:49] Speaker 03:
just didn't go into an extensive analysis, an extensive discussion.

[00:20:53] Speaker 03:
And again, Hald, the Verdin-Garcia case, they don't require it.

[00:21:00] Speaker 03:
Verdin-Garcia said that there's a need to consider the 3553A factors in the context of C2 motions.

[00:21:07] Speaker 03:
But what's I think important there is Verdin-Garcia recognized that 3582C, in that case C2, but C1's the same, didn't incorporate 3553C.

[00:21:19] Speaker 03:
3553A is the only provision that's mentioned in those subparagraphs.

[00:21:25] Speaker 03:
So we don't even have the statement of reasons from 3553C being incorporated into these compassionate release motions.

[00:21:33] Speaker 01:
So to highlight the need for the district court to say more, but that's just my view.

[00:21:38] Speaker 01:
Sorry, I could not hear that.

[00:21:38] Speaker 01:
That the absence of 3553C just actually compels a district court on compassionate release to say more under 3553A.

[00:21:46] Speaker 03:
Well, I would disagree, Your Honor, and I think at the very least, Hald and Verdin Garcia both say no more is required than it would be at initial sentencing.

[00:21:55] Speaker 03:
And at initial sentencing, all that would be required is some general statement of reasons, not some specific recitation of every possible factor or fact that's alleged.

[00:22:07] Speaker 03:
Your Honor, I think waiver probably covers

[00:22:10] Speaker 03:
The first argument.

[00:22:11] Speaker 03:
Again, I understand this notion that we didn't know the court would engage in some deficient analysis until after the fact.

[00:22:18] Speaker 03:
But if you're wanting facts to be considered as part of an analysis, you have to raise those facts.

[00:22:24] Speaker 01:
You mean forfeiture, right?

[00:22:25] Speaker 03:
I mean forfeiture in terms of- I would say forfeiture, yeah, exactly.

[00:22:30] Speaker 03:
Forfeiture at the district court level didn't argue plain error, therefore it's waived at this level.

[00:22:35] Speaker 03:
And as to the second argument, the Concepcion, Concepcion says it may be considered, doesn't say must, and it's clear that a retrospective analysis was not conducted for the various reasons I outlined.

[00:22:46] Speaker 03:
Again, Your Honor, this court is not in the business of grading papers.

[00:22:50] Speaker 03:
I do think that's what's being asked for here.

[00:22:52] Speaker 03:
No magic words are required.

[00:22:54] Speaker 03:
And I think this order shows that the court did consider the defendant's arguments as a big continuum from saying nothing to a 20 page epistol saying everything.

[00:23:05] Speaker 03:
And I think this is definitely a passing grade.

[00:23:06] Speaker 02:
Thank you.

[00:23:08] Speaker 02:
Thank you, counsel.

[00:23:09] Speaker 02:
Mr. Klein had some rebuttal.

[00:23:23] Speaker 00:
Thank you.

[00:23:23] Speaker 00:
I just want to touch on a few points government counsel made.

[00:23:28] Speaker 00:
And one thing the government argues that the district court here did what Hald did.

[00:23:35] Speaker 00:
And I don't think it's our argument under Concepcion or Hald that a district court needs to go through a point-by-point analysis.

[00:23:43] Speaker 00:
But what this court cited to the Hald court doing, or the Hald and Sands courts doing,

[00:23:51] Speaker 00:
was to show something that there was a consideration of the facts underlying the extraordinary compelling circumstances in the context of the 3553A analysis.

[00:24:03] Speaker 00:
And this court quoted just a single sentence from the district court orders.

[00:24:08] Speaker 00:
And this is at page 947 of the Hald opinion where the court quotes the district court order in Hald which said,

[00:24:18] Speaker 00:
At this point, defendant has served approximately half of his sentence as he served 104 months.

[00:24:23] Speaker 00:
Reducing his sentence by half, even during the ongoing COVID-19 pandemic, does not further sentencing objectives.

[00:24:31] Speaker 00:
The court remains convinced that 210 months is an appropriate sentence.

[00:24:35] Speaker 00:
And this court emphasized the reference to the ongoing COVID-19 pandemic

[00:24:40] Speaker 00:
And then it's a similar thing.

[00:24:42] Speaker 00:
I won't read it for sentence.

[00:24:43] Speaker 00:
And so even it might be a single sentence, just showing that the district court considered the facts giving rise to the extraordinarily compelling circumstances.

[00:24:54] Speaker 00:
That, I think, under hold would be sufficient.

[00:24:56] Speaker 00:
And whether under conception, it would be, I can't say.

[00:25:00] Speaker 00:
But what I can say is we don't have that here.

[00:25:03] Speaker 00:
And so what we have is the district court's order was very clear on

[00:25:09] Speaker 00:
page four of the order, which is page 99 of volume one, where it talked about Mr. Bradley's arguments and talked about incapacitation of the caregiver being a category under the guidelines, it did that only kind of as a setup to then saying, but I'm not even going to consider whether there's extraordinary compelling circumstances because

[00:25:33] Speaker 00:
The 3553A factors don't support a sentence reduction.

[00:25:36] Speaker 01:
So... Mr. Quinn, do you think the reason the district court did that is because of the way the case was presented in the district court by the defense counsel?

[00:25:43] Speaker 00:
I don't think so because, again, especially when it comes to the amount of time served, the argument specifically was tied to the need to care for his children.

[00:25:55] Speaker 00:
And I think that, I mean, in whole, the court didn't actually decide

[00:26:02] Speaker 00:
this just talks about it, but there's no indication that the Hull defendants had made these arguments specifically in this manner.

[00:26:10] Speaker 00:
And I don't want to overstate what Hull had held, because Hull didn't get into the preservation analysis.

[00:26:16] Speaker 00:
And then on the second, the kind of the Concepcion and Pepper analysis,

[00:26:29] Speaker 00:
Again, even I think when the government points to the district court saying, referencing this time to break old patterns, it only did that, though, in the context of then looking back at whether the original sentence was appropriate, saying, well, he had prior conditions that didn't stop him from committing this crime.

[00:26:50] Speaker 00:
And so there was no evidence, at least in the district court's order, of any consideration of post-sentencing rehabilitation.

[00:26:58] Speaker 00:
So unless the court has other questions, we would ask that the court reverse and remand.

[00:27:02] Speaker 02:
Thank you, counsel, and your excuse.

[00:27:03] Speaker 02:
We appreciate the arguments this morning.

[00:27:06] Speaker 02:
And the case is submitted.

[00:27:09] Speaker 02:
And the court will be in recess until 9 o'clock tomorrow morning.