[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
We're here today to hear one matter, 23-2111, United States versus Crespin.

[00:00:11] Speaker 03:
And we are ready whenever you want.

[00:00:16] Speaker 00:
Good morning, Your Honors, Council.

[00:00:19] Speaker 00:
My name is Katie Donnelly, and I represent your parent, Mr. Crespin.

[00:00:24] Speaker 00:
Mr. Crespin's appeal

[00:00:27] Speaker 00:
is focused on one issue, and that is the de novo review of the eligibility question for his motion for compassionate release.

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In that motion, let me interrupt you for just a minute.

[00:00:45] Speaker 03:
So, we are under abusive discretion in terms of application of the factors to be considered for compassionate release.

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Would you agree with that?

[00:00:58] Speaker 00:
No, Your Honor, because the analysis has two parts.

[00:01:01] Speaker 00:
The first part is the question of eligibility, and that is established case law, Dylan 560 U.S.

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817 at 826 and 27 makes it clear that the eligibility determination requires a de novo review by the appellate courts.

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When it comes to the final question of whether compassionate release was appropriate, Your Honor, that is correct, that then the standard of review is abuse of discretion.

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But right now, the focus of our arguments in this appeal have been the question of eligibility.

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And the eligibility piece is the part that takes us to the statutory interpretation question on their Amendment 814 as to whether

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Mr. Crespin had any requirement to show that he was the only available person to take care of his son who has been diagnosed with stage three cancer that under our disability laws is automatically considered a disability.

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The government says, let's not go there because at the time that the motion was filed,

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the amendment was not in effect.

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So the 2023 amendments, amendment 814, was enacted in May of 2023 and went into effect in November.

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At the time, the issue was brought to the court's attention by both parties, but the district court's analysis has zero mention of its impact.

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Our position has been, as this court has recognized,

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The 10th Circuit has been very consistent with the Supreme Court's analysis and Bradley, and the cases that we have cited, we heavily rely on Bradley, the Supreme Court's decision that says this court applies the law that is in effect at the time that it comes to it.

[00:03:09] Speaker 03:
The government has- The law was not in effect at the time.

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Your Honor, at the time that we are arguing the case today,

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But that's not how it works.

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We have to determine whether or not this was a substantive change.

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No, Your Honor, that is the issue, right?

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So that is the issue that has been avoided in the government's briefing.

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We are dealing with two canons of statutory interpretation.

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And that's exactly what happened in Bradley.

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And the court makes a distinction that when you have an apparent tension,

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between two canons of the statutory interpretation, the court looks at the language of the statute here, the guidelines to see if there was any intention that it would not be

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applicable to the pending cases.

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And I would like to highlight that piece of this, that we are not talking about retroactivity, retroactivity to sentencing imposition of sentences.

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So there are two things that are important.

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One, we are not talking about imposing a sentence.

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We are talking about reducing a sentence.

[00:04:22] Speaker 04:
Let me stop you for a minute.

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Would it be your position that the district court at the time it denied the motion did not commit error, but that that doesn't matter because we have to consider the new policy guidelines?

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So that is our fallback position, Your Honor.

[00:04:41] Speaker 00:
The first position is that Concepcion, which was in effect at the time, the Supreme Court had spoken in Concepcion that the Sentencing Commission actually acknowledges in its amendment, Concepcion was in place and the court was bound by it, that you may consider any factor.

[00:05:03] Speaker 00:
And again, the highlighting piece is the fact that we must.

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No, we have never taken a position that the court must have.

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It was made.

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But not only the court did not take the specific language that it knew was in effect.

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And that is where we come down to the heart of the substantive question here as to the modifications that were done.

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And we make a distinction between subsection A,

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which does not have any requirement that my clients be the only available person to take care of his son versus subsection B, C, and D that specifically allow that.

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And as your honors are aware, the rules of stature interpretation take that into account.

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And the analysis is that there was no such requirement.

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So back to Judge Carson's question, the first

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part of our argument is that Concepcion was in place.

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The district court had a duty to follow its holding.

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There is zero mention of Concepcion.

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But two, even if at the time that was not a mistake, now there is no question that is a mistake.

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And the issue is before you under Bradley, under this court's stare decisis in Miller citing Bradley that

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When the law has been settled, and it is settled at this moment, there is no question that this court follows the law.

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And Bradley's analysis takes us one step at a time.

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One, we are not talking about retroactivity.

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There is no question that the question has been pending before the district court and this court as the law went into effect.

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and the law was enacted before the motion was filed.

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One, two, because this is not about imposing a sentence, the analysis is going to be focused very much on what is the impact?

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Do we have any prejudicial impact that, you know, like, clearly we don't have any concerns that would arise in ex post facto cases, right?

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And clearly we don't have

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different parties in a private case that would be prejudiced, and the government has not mentioned any prejudice arising out of the application of the current language.

[00:07:31] Speaker 03:
We are talking about... Do you think the 11th Circuit got it wrong in the United States versus Hamlin when it held... No question, Your Honor.

[00:07:41] Speaker 00:
Bradley was not discussed.

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The 11th Circuit's decision does not even mention the tension about these

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canons of interpretation, and it is focused very much on imposition.

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We are not talking about imposition of sentencing.

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We are talking about reduction of sentence.

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That is a completely different world.

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We are not... The world is very limited in terms of the power of a court to adjust a sentence after it's been rendered, right?

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very much limited, Your Honor, that is correct and tied to the language.

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And that's why we are talking about the Stasher interpretation of the language.

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The language now specifically... Would you agree that if we think the language is clarifying as opposed to substantive, that we can't give it retroactive effects?

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No, Your Honor, again, because that is a test that applies when the court is imposing a sentence.

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The concern there is a finality, right?

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That we want to make sure that everybody's in an equal setting when it comes to imposition of sentence and notice about what the law was and what the court is applying.

[00:08:57] Speaker 00:
You are now out of that room.

[00:08:59] Speaker 03:
You really wanted the

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benefit of this amendment.

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Why not just dismiss this motion for compassionate release and file a new one where you'd automatically get the benefit of the amendment?

[00:09:15] Speaker 00:
Your Honor, if my client's son was not diagnosed with stage 3 cancer, if his

[00:09:25] Speaker 00:
toddler would not be an orphan soon probably that would have been get an answer faster doing what i suggested than what following this through all the way through heel so if you would i'm happy to move on to the remedy section of it and malone the fourth circuit in three cases

[00:09:47] Speaker 00:
in a row has made it very clear that when you have a situation like this, so in Malone, in Brown, and in Worley, Malone is cited actually in the 28J that the government has submitted.

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Brown's citation is 78F4122, and Worley is 685F3404.

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Both of them are cited in Brown as well.

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The analysis is that when you have a situation like this, that this severity of the situation is taking the court to a position that do we want to take the chance?

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The district court was aware of this amendment.

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Both parties briefed it.

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Zero mention of it.

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Do we want to go back to the district court?

[00:10:35] Speaker 00:
Let my client's son die.

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Let the grandson become an orphan without proper

[00:10:42] Speaker 01:
Ms.

[00:10:43] Speaker 01:
Donley, what evidence is there in the record we have that the son is incapable of self-care?

[00:10:59] Speaker 00:
So that was the issue that we tried to address, Judge Murphy, in our reply brief, that there is no question that he has been diagnosed with stage 3 cancer.

[00:11:12] Speaker 01:
government, as far as I know, unless... That doesn't mean he's incapacitated for purposes of compassionate release.

[00:11:21] Speaker 00:
So that was the part that we tried to address in the reply brief, that this kind of cancer automatically is considered a disability.

[00:11:32] Speaker 01:
Well, I thought there was

[00:11:34] Speaker 01:
some information in the record, albeit maybe not in front of the district court.

[00:11:39] Speaker 01:
Maybe it was, but there was no findings on it that the son is doing quite well.

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He's doing well.

[00:11:51] Speaker 01:
He's living with an uncle and he has friends and family for support.

[00:11:57] Speaker 00:
Your honor, the issue was, I'm not quite sure actually if that is

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And I apologize if I'm missing that piece of this.

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My understanding was that we were looking at the medical notes.

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And as you can imagine, the medical notes are focused on what the diagnosis was and how the patient is doing under those circumstances.

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The notes are from, I believe, a year before that.

[00:12:25] Speaker 01:
I'm afraid that, you know... Are you saying it's in those notes where it says he's doing well?

[00:12:32] Speaker 00:
I'm not saying I'm saying that he's doing well was relative to the context, which means that you're giving him the treatment.

[00:12:41] Speaker 01:
Okay.

[00:12:43] Speaker 01:
Let me put it this way.

[00:12:43] Speaker 01:
Okay.

[00:12:45] Speaker 01:
Where does it say he is incapacitated anywhere in this record?

[00:12:51] Speaker 00:
Well, that was what I was trying to address in the reply and Your Honor is correct.

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Because the court decided that since the incorrect statutory interpretation was that if you're not the only person responsible, then we are not gonna consider this.

[00:13:07] Speaker 00:
There was not an analysis of the actual situation at the time.

[00:13:13] Speaker 04:
Well, would you agree that if someone

[00:13:18] Speaker 04:
even if you can have multiple potential caretakers, that if someone is well taken care of by other family members, that even if you can have a standard where you don't have to be the sole caregiver, that the district court could weigh the fact that there are multiple people who are already providing him care, so there's no need for compassionate release.

[00:13:43] Speaker 00:
Our position is, Your Honor, that the Sentencing Commission was aware of those situations.

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They have done a very thorough study of the cases that have addressed these severe circumstances.

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If they wanted to say that, they would have.

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They did it in subsection B, they did it in C, they did it in D. They didn't- So your position then, let me just, we're running out of time.

[00:14:05] Speaker 04:
So your position would be then that even if there's evidence of ample care for the person,

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by other family members that that doesn't matter?

[00:14:16] Speaker 00:
Under the new language, correct.

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And I would like to reserve the remainder of my time.

[00:14:26] Speaker 03:
Okay.

[00:14:27] Speaker 03:
We are ready for you.

[00:14:34] Speaker 02:
Good morning and may it please the court council page for the United States.

[00:14:39] Speaker 02:
I'd like to just start by thanking the court for having the flexibility to hold this argument today by zoom rather than last week in Denver.

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I really appreciate that moving on to the merits of the case.

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The district court here did not commit any sort of error in declining to apply what were then future proposed guideline amendments.

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In July of 2023, Judge Johnson was required to decide compassionate release motions in compliance with any applicable policy statements issued by the Sentencing Commission.

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And in July of 2023, there were none.

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Now, things have changed since then.

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The guideline policy statement has been amended, but this court looks only to guideline amendments that come after the district court's decision if they clarify what's always been true as opposed to being substantive changes.

[00:15:30] Speaker 02:
And here, these were substantive changes.

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I haven't heard any disagreement about that, just about whether this framework applies at all.

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So these are substantive changes.

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And other circuits have recognized

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That amendment eight, fourteen didn't bind district courts before it took effect.

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The 3rd, what about the argument that these cases are wrong?

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Because they're focused on sentencing and not compassionate.

[00:16:02] Speaker 02:
I don't think that that is persuasive.

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That is a distinction, although Kissick was actually a 2255 case.

[00:16:10] Speaker 02:
So that wasn't an initial sentence either.

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But I think there is a difference, right, between 2255 and direct appeal where you're contending that something was done wrong.

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But I don't think that that difference helps Mr. Crespin.

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It makes sense to apply these clarifying amendments to somebody who's on direct appeal or on 2255 because otherwise you're letting a sentence that we know is erroneous now be set in stone.

[00:16:45] Speaker 02:
But compassionate release doesn't work that way.

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You can always get the benefit of a new amendment by filing a new motion in the district court.

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So I think the difference between these contexts actually could support the court saying here, we don't apply any kind of amendments on compassionate release review.

[00:17:03] Speaker 02:
You just have to go back to district court and try again.

[00:17:06] Speaker 02:
So I do think there is a difference.

[00:17:09] Speaker 02:
I don't think that difference helps him.

[00:17:13] Speaker 03:
What about the question that Judge Murphy asked about whether there's evidence in the record before us that the son was unable to care for himself?

[00:17:26] Speaker 02:
No, there is no evidence to that effect in the record.

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In fact, the evidence to the record is to the contrary.

[00:17:31] Speaker 02:
Crespin himself submitted his son's most recent medical records that stated his son was doing well.

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He was going to the gym for multiple hours a day.

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He was living with an uncle.

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He was with the mother of his child, help raising his own child.

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So the affirmative evidence is that he was even able to care for others and had friends and family support.

[00:17:53] Speaker 02:
There is no evidence that he was incapacitated.

[00:18:03] Speaker 01:
There seems to be this nagging issue raised in the filings by Mr. Crespin about what he really wants us to be able to say goodbye to his son.

[00:18:20] Speaker 01:
How does that fit in at all?

[00:18:23] Speaker 01:
To our analysis of compassionate relief.

[00:18:29] Speaker 02:
It could back before there was a binding policy statement, it could have been considered and was considered here by the district court in whether extraordinary and compelling circumstances existed.

[00:18:41] Speaker 02:
The court wasn't required to find that the fact that Mr. Creston wants to say goodbye to his son was extraordinary and compelling.

[00:18:47] Speaker 02:
In fact, the court clearly found it wasn't.

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He said, you know, I'm sorry about the situation that your family members are in, but that's the sort of unfortunate consequence that follows from committing crimes and becoming incarcerated.

[00:19:01] Speaker 02:
So, the district court did have that before it could have considered it, but didn't find it to be extraordinary and compelling.

[00:19:08] Speaker 02:
I think, and I don't think that Mr. Crespin now is arguing that the court was required to find that compelling.

[00:19:14] Speaker 02:
I think he's trying to sort of re-haven his argument or reframe his argument as now one saying, you know, I was the only available caregiver.

[00:19:23] Speaker 02:
But I don't believe that he argued that either.

[00:19:26] Speaker 02:
And it certainly wasn't clear error for the court to find otherwise.

[00:19:30] Speaker 03:
What's the standard of review for extraordinary and compelling circumstances?

[00:19:37] Speaker 02:
I think that that standard depends on on where we are in time.

[00:19:41] Speaker 02:
So, back under and the key, the district court had a lot of discretion to determine what extraordinary and compelling circumstances are.

[00:19:49] Speaker 02:
So, and that's our position is the court should be applying that framework now.

[00:19:54] Speaker 02:
Now that there is a binding policy statement, I think that there is going to be a component of de novo review and compliance with the current policy statement, but we don't believe that that's an issue in this appeal.

[00:20:16] Speaker 02:
If I may just say a couple of words about the remedy, if there were to be any error here, which there is not the appropriate step would be to remand to the district court so that it can consider the new law and any new facts.

[00:20:30] Speaker 02:
The district court here hasn't had a chance to apply the 23, 2023 amendments since they've become binding.

[00:20:38] Speaker 02:
It hasn't undertaken an analysis under 3553 a.

[00:20:42] Speaker 02:
There's simply no reason to take this highly discretionary decision out of Judge Johnson's experienced hands.

[00:20:49] Speaker 02:
And Mr. Crespin, as Judge McHugh pointed out, could have filed a motion.

[00:20:53] Speaker 02:
If this was a truly an urgent matter, he could have filed a motion at any point in the more than 6 months that have passed since November 1st of 2023.

[00:21:03] Speaker 02:
And it may be that he doesn't like his chances in the district court and that's why he is here asking this court to take that decision out of the district court's hands.

[00:21:12] Speaker 02:
But I don't believe he's made any kind of showing that the district court would not act.

[00:21:17] Speaker 02:
Appropriately or urgently were he to file a new motion.

[00:21:22] Speaker 02:
So the court should decline that his invitation to to take that decision from from the district court who is statutorily tasked with it, even if it does find that there was an error, which it should not find.

[00:21:37] Speaker 02:
I would be happy to address any other questions that the court may have.

[00:21:43] Speaker 04:
And if there are, I thought Judge Murphy was getting ready to ask a question, but so I was waiting on him.

[00:21:50] Speaker 04:
Whose burden is it?

[00:21:54] Speaker 04:
I mean, we're talking about the standard of review for about whether something's extraordinary and compelling, but whose burden is it to show that in the first place?

[00:22:02] Speaker 02:
It's a defendant's burden.

[00:22:10] Speaker 04:
And I guess the defendant's position in this case would be that there's a stray statement and a handwritten letter

[00:22:19] Speaker 04:
that says, I'm the only person who can take care of my son.

[00:22:23] Speaker 04:
And I mean, despite what seems to be other evidence in the record that there are other people who can and are taking care of him.

[00:22:32] Speaker 04:
But once the defendant makes a minimal showing such as that, a conclusory statement that they're the only person, I mean, does the government have any burden or we just decided on that?

[00:22:47] Speaker 02:
I don't think in this case, what Mr. Crespin said was enough to put the government to any burden or to require the district court to hold any sort of hearing.

[00:22:55] Speaker 02:
The burden rests with Mr. Crespin and we've got his own attorney saying things as an officer of the court in filed pleadings that are directly contrary to the thing he is saying in his unsworn letter.

[00:23:08] Speaker 02:
And his statement in his letter is also fairly vague.

[00:23:11] Speaker 02:
He says, my son has no one.

[00:23:13] Speaker 02:
He doesn't actually say, I'm the only person who can take care of him.

[00:23:16] Speaker 02:
And then in his very next sentence, he says, actually my wife is trying to take care of him.

[00:23:21] Speaker 02:
He doesn't address any of the other people in his family, anyone in his son's mother's side, uncle that he's living with, the several half siblings he has through Mr. Crespin, Mr. Crespin's sisters.

[00:23:35] Speaker 02:
He doesn't even sort of front these possibilities or explain why they are not.

[00:23:41] Speaker 02:
they are not true possibilities.

[00:23:43] Speaker 02:
And so without even doing something so minimalist as that and sort of fleshing it out, I don't think that it transfers the burden to the government or to the district court to hold any sort of further inquiry.

[00:23:55] Speaker 02:
I think Mr. Cressman was sending such mixed messages on an issue on which he holds a burden that nothing shifted that burden to the government.

[00:24:11] Speaker 02:
If there are no further questions, then the government would just ask that this court affirm the decision of the district court.

[00:24:19] Speaker 02:
Thank you.

[00:24:20] Speaker 03:
Thank you.

[00:24:25] Speaker 03:
Ms.

[00:24:25] Speaker 03:
Donnelly, I think you have 55 seconds.

[00:24:32] Speaker 00:
Mr. Crespin is going to be out in 2025.

[00:24:37] Speaker 00:
He has served more than 10 years.

[00:24:39] Speaker 00:
It is undisputed that his son has history cancer and has a son whose mother has died.

[00:24:46] Speaker 00:
Yet we are spending many hours and government resources to justify keeping him in prison during these last months of his son's life.

[00:25:01] Speaker 00:
I believe these are the circumstances that justified the holding of the Supreme Court of the United States in conception, trying to remind all of us that compassionate release has a place in our system.

[00:25:15] Speaker 00:
And if this case does not qualify, I do not know which one would.

[00:25:20] Speaker 00:
So I would urge the court to look at the Fourth Circuit's holdings and follow their approach.

[00:25:30] Speaker 00:
Thank you so much for your time.

[00:25:31] Speaker 03:
Thank you.

[00:25:33] Speaker 03:
We will take this matter under advisement.

[00:25:37] Speaker 03:
We appreciate your argument today.

[00:25:40] Speaker 03:
The court will be adjourned.