[00:00:03] Speaker 02:
Oh, there he is.

[00:00:05] Speaker 04:
He's feeling okay?

[00:00:15] Speaker 02:
Okay, we'll now do 23-3152, U.S.

[00:00:21] Speaker 02:
versus Drake's.

[00:00:25] Speaker 02:
Mr. Hansmeier?

[00:00:31] Speaker 04:
The connection is not great.

[00:00:52] Speaker 02:
So we're missing occasional words.

[00:00:55] Speaker 02:
So I'll ask you to speak slower than normal and maybe we won't miss as many words.

[00:01:05] Speaker 04:
Yeah, I'm sorry I'm not there.

[00:01:08] Speaker 04:
I know this is frustrating.

[00:01:11] Speaker 04:
So essentially, there's two sentencing-related errors in this case.

[00:01:19] Speaker 04:
One involves Section 3582A, which is the statute that lists the functions that are available in federal court.

[00:01:33] Speaker ?:
But that statute also says that

[00:01:36] Speaker 04:
Rehabilitation and Correctional Treatment cannot be used to impose or lengthen a sentence.

[00:01:44] Speaker 04:
So here, the District Court violated that statute for evasion when it's cited Correctional Treatment, Rehabilitation as one of the reasons to vary upward in this case.

[00:02:03] Speaker 04:
And we know that because

[00:02:06] Speaker 04:
If you think that primarily the district court told us they did this in the written statement reasons, the box was checked on the page for the upper variance.

[00:02:20] Speaker 04:
And that's consistent with the statements made by the district court sentencing hearing.

[00:02:26] Speaker 04:
where the district court talked about how Mr. Garrett's meeting had drug problems.

[00:02:33] Speaker 04:
And then the district court invoked 3553 ATD, which is the Rehabilitation Language, and 3553.

[00:02:44] Speaker 04:
So that was an error.

[00:02:45] Speaker 04:
That error is plain under this court's decision.

[00:02:50] Speaker 04:
Well, several decisions, but the main decision was Thornton, United States v. Thornton,

[00:02:57] Speaker 04:
That's the case that makes it clear that any reliance on rehabilitation is sufficient to trigger an error.

[00:03:08] Speaker 04:
It's also the case that talks about how the district court does not just have to tie the correctional treatment to a specific prison program.

[00:03:20] Speaker 04:
That's a way to violate the statute, but it's not the only way.

[00:03:24] Speaker 04:
And we think it's prejudicial here because Mr. Gray received a statutory maximum sentence, because the parties were recommending a lower sentence.

[00:03:39] Speaker 01:
And so it just... I have a question, Mr. Hansmeier.

[00:03:47] Speaker 01:
I've been doing this for 20 years and I never really had the opportunity to explore this

[00:03:55] Speaker 01:
linguistic difference between 3553A2D, which does suggest that correctional treatment's a proper objective in the balancing, and then 3582 that says corrections is not inappropriate.

[00:04:13] Speaker 01:
How do you reconcile, what's the best way to reconcile that linguistic dilemma?

[00:04:25] Speaker 04:
Yes, I think the best way to reconcile it is that rehabilitation and correctional treatment can be considered for other things such as what conditions the supervisor needs to impose, the length of the term the supervisor needs.

[00:04:47] Speaker 04:
I suppose you could

[00:04:53] Speaker 04:
Potentially, I don't know about, maybe potentially very downward for that basis.

[00:04:59] Speaker 04:
I'm not entirely sure about that.

[00:05:01] Speaker 04:
But there are definitely other components of the sentence which, you know, where rehabilitation and correctional treatment are important.

[00:05:13] Speaker 04:
So that's how I would reconcile that.

[00:05:18] Speaker 04:
And I think that's what the Supreme Court did in Tapia

[00:05:24] Speaker 02:
How do you explain the form having a box to check, which if you check it, we use reversible error.

[00:05:45] Speaker 04:
I sort of heard that, but you kind of cut out.

[00:05:49] Speaker 04:
The check in the box, is that what you asked about?

[00:05:51] Speaker 02:
I asked why the form, the government form, has a box, which if the judge checks, it's reversible error.

[00:06:03] Speaker 04:
Yes.

[00:06:04] Speaker 04:
So there is a reason.

[00:06:06] Speaker 04:
I think the reason for that is because when you look at the top of the form, this is page 34.

[00:06:15] Speaker 04:
The first section is the sentence that you post is, and then there is a box score above the guideline range, and then a box score below the guideline.

[00:06:30] Speaker 04:
So I think that, you know,

[00:06:36] Speaker 04:
If the box before a doubt or variance and the judge were to check the box for the 3553 ATD box, then I don't think that would be in there.

[00:06:50] Speaker 04:
So I think that's why that's there.

[00:06:55] Speaker 04:
That makes sense.

[00:06:59] Speaker 04:
But I do want to just say, I think the checking of the box just confirms what happens after the hearing.

[00:07:07] Speaker 04:
We're not just here because the box is checked, but the fact that the box is checked does confirm that the error was made at sentencing.

[00:07:19] Speaker 02:
Well, when you say the error, are you saying that the sentence was increased to enable the defendant to get this type of treatment?

[00:07:29] Speaker 02:
Because it seemed to me that the judge, regardless of treatment, felt strongly that the defendant should receive the maximum statutory sentence.

[00:07:43] Speaker 04:
So I'm saying that it is clearly one reason for the 16-month sentence because the district court has told us it is one reason for the 16-month sentence.

[00:07:56] Speaker 04:
Now, it may not

[00:07:58] Speaker 04:
It is, I agree with you that it is unclear how much weight the district court put into this.

[00:08:07] Speaker 04:
But I don't know that that matters because, you know, prejudice, when you're talking about sentencing care, I mean, even a gay or a weak in prison is prejudicial.

[00:08:21] Speaker 04:
And so if it is,

[00:08:23] Speaker 04:
it is any part of the upper variance, we think that when it goes back, there is a reasonable probability, which is all we have to show, that the sense would be lower, maybe too much, I have no idea, but we think it flows

[00:08:44] Speaker 04:
just logically as a matter of reason that if it is one basis and that basis goes away, it is really probable that the sentence will go down.

[00:08:54] Speaker 04:
I can talk about the second issue, too, because the 3582 error sort of blended into the second issue, which is just an adequate explanation.

[00:09:14] Speaker 04:
Some inadequate explanation cases just turn on how much is said.

[00:09:20] Speaker 04:
This case is a little different in that we're sort of focusing on what was said and the inadequacies of what was said.

[00:09:30] Speaker 04:
And I think the briefing, I don't need to repeat all of it, but there were multiple things that were said that are not

[00:09:43] Speaker 04:
you know, consistent with the law, essentially.

[00:09:49] Speaker 04:
And so we think, you know, when you put all of these things together, that this becomes a pretty easy case where the district court imposed a statutory maximum sentence well above the guidelines range and made multiple errors with explaining the sentence.

[00:10:10] Speaker 04:
And this is preserved.

[00:10:11] Speaker 04:
which is rare for this type of issue.

[00:10:14] Speaker 04:
And so the case should go back.

[00:10:19] Speaker 04:
I'm happy to answer specific questions, but I really don't want to just read my brief remotely.

[00:10:32] Speaker 03:
Mr. Haselweyer, one question I did have is on the acceptance of responsibility

[00:10:41] Speaker 03:
box that was checked.

[00:10:44] Speaker 03:
Can't we all confidently recognize that that was just a clerical error, that there's, the judge obviously didn't think that she could, you know, vary, I'm sorry, he couldn't vary upward because the defendant accepted responsibility.

[00:11:06] Speaker 03:
How do you respond to that?

[00:11:12] Speaker 04:
Yeah, that makes sense.

[00:11:15] Speaker 04:
I hope the district court doesn't bury that word for someone's acceptance of responsibility.

[00:11:22] Speaker 04:
But I'm reading what he did, and that's what it says he did.

[00:11:25] Speaker 04:
And so I'm going to take it at face value.

[00:11:31] Speaker 04:
But beyond that,

[00:11:34] Speaker 04:
I think that when you're talking about the claim we raised here, we're talking about the adequacy of the explanation, even if you want to call it a clearance, that's not good, right?

[00:11:47] Speaker 04:
We did not demonstrate that this explanation was, you know, even coherent.

[00:11:55] Speaker 04:
And I do think for that reason as well, it is the basis to send this back.

[00:12:06] Speaker 04:
But I'm happy to observe the remainder of my time for rebuttal if there aren't any further questions.

[00:12:15] Speaker 02:
Thank you, counsel.

[00:12:18] Speaker 02:
Mr. Magg.

[00:12:23] Speaker 00:
Good morning, Your Honors.

[00:12:24] Speaker 00:
May it please the Court, Jared Magg, on behalf of the United States in this particular case.

[00:12:29] Speaker 00:
Judge Tempkevich, I want to address the same sort of concerns that the government had, is how to reconcile A2D

[00:12:36] Speaker 00:
And I think the answer to your question really is sort of twofold.

[00:12:42] Speaker 00:
I think the court in Long that we cite in our case had significant concerns about this very issue that TAPIA somehow lays a little bit of a trap for a judge to have to try to avoid using the terms rehabilitation and correctional treatment in trying to avoid any understanding that the increase in the sentence was based upon that alone.

[00:13:04] Speaker 00:
But I think the question is answered by what this court said in Thornton as well as Tapia, because in Thornton, this court made very, very clear that both causal relation and motivation are the two key factors to determine whether or not a judge increased the sentence based solely upon rehabilitation and correctional treatment.

[00:13:30] Speaker 00:
And I think when the court looks at the record here,

[00:13:33] Speaker 00:
It was not causally related.

[00:13:35] Speaker 00:
The increase was not causally related at all to treatment or correction.

[00:13:39] Speaker 00:
And it certainly wasn't motivated.

[00:13:42] Speaker 00:
And I think, Judge Hartz, as you sort of alluded to, Judge Krauss's concern here was the defendant's just horrible criminal history and the fact that this was his fifth federal conviction.

[00:13:56] Speaker 00:
And that is really what motivated the court to increase above

[00:14:02] Speaker 00:
or increase it to the statutory maximum sentence of 60 months.

[00:14:08] Speaker 00:
At the same time, I think this court has to appreciate the unique posture in which this case comes to the court.

[00:14:14] Speaker 00:
You have a situation where both parties have already agreed to a sentence of variance four times higher than the low end of the guideline range.

[00:14:24] Speaker 00:
And so to some degree, the courts

[00:14:27] Speaker 00:
decision is informed by the party's own agreement that a sizable variance is justified in this case.

[00:14:36] Speaker 00:
The court simply went 12 months beyond that, adopting both what the parties had agreed to in their sentencing memorandums as well as the sentencing agreement.

[00:14:47] Speaker 00:
And if you look at both of those filed by the defendant,

[00:14:52] Speaker 00:
In large part, they are in agreement that all of the 3553A2 factors through A through C certainly qualify for a sizeable variance here to 48 months.

[00:15:05] Speaker 00:
The fact that the court simply went 12 months beyond that, I think, is what puts this case in somewhat of a unique posture in the sense that many of the factors that the court looked at

[00:15:16] Speaker 00:
were agreed to by all the parties and the court.

[00:15:18] Speaker 00:
So in some sense, that is off the table, as it were, that it has decided that those factors were all necessary or worthy of the variance that was agreed upon in this case.

[00:15:33] Speaker 00:
And again, the fact that the court went to five times the lower end of the guideline range rather than four times is what the government and the defendant advised for certainly doesn't.

[00:15:42] Speaker 00:
The transcript suggests that he

[00:15:45] Speaker 01:
was attributing the fentanyl in the vehicle to him.

[00:15:54] Speaker 01:
He was.

[00:15:55] Speaker 01:
And, you know, there's really nothing that links the drugs to him.

[00:16:03] Speaker 01:
Other than, you know, the passenger admitted, I think she admitted that they were hers.

[00:16:09] Speaker 01:
Can he rely on, you know,

[00:16:13] Speaker 01:
Fentanyl under the passenger seat as a basis for the sentence?

[00:16:17] Speaker 00:
It's clear that he believed that the Fentanyl, at least as we read the record, and I think the defense certainly reads the record the same way.

[00:16:23] Speaker 00:
We certainly don't read it in a way to suggest that it is attributable to him exclusively.

[00:16:31] Speaker 00:
The fact remains is it was found in the car he was driving under the seat.

[00:16:35] Speaker 00:
So in some sense, I think the court was viewing it as constructive possession.

[00:16:39] Speaker 00:
The problem was the issue, of course, was never fleshed out.

[00:16:43] Speaker 00:
The defendant objects to it only at the time of the sentencing.

[00:16:47] Speaker 01:
There is no hearing as to whether or not... Well, then does it the burden come on the government to try to show constructive possession?

[00:16:54] Speaker 00:
I think it would have under those circumstances.

[00:16:56] Speaker 00:
So to the degree that we didn't press the issue, I think the court is left with, in this case, the court, as you read his statement, seems to suggest, I understand your position.

[00:17:06] Speaker 00:
I just don't agree with it.

[00:17:09] Speaker 00:
When he was talking about the defendant's position that the drugs were not attributable to him.

[00:17:14] Speaker 03:
Well, that's not what he said.

[00:17:19] Speaker 00:
Not directly.

[00:17:19] Speaker 00:
He says, I understand your position.

[00:17:22] Speaker 00:
Okay.

[00:17:23] Speaker 00:
And he says, and it's hard to know because the tone of that from a cold record, it's hard to say whether or not he agreed with them to say, okay, I agree that it's not in his possession.

[00:17:37] Speaker 00:
I took it that he said, I understand your position.

[00:17:41] Speaker 00:
I don't agree with it because he does increase

[00:17:45] Speaker 00:
But again, our position is that the increase was really more attributable to his criminal history, stating specifically, the reason I'm doing this is this is his fifth federal conviction.

[00:17:57] Speaker 00:
And so to attribute the increase to the drugs themselves, I think, is a bit of a stretch.

[00:18:07] Speaker 01:
I mean, particularly for abuse of discretion here, whether or not... He could certainly disagree with the parties as to whether or not he believed that the drugs were attributable to... I think it makes the... If he constructively possessed the drugs, you know, that makes this case a more serious case in the court's eye.

[00:18:30] Speaker 01:
And there really aren't any... There's no evidence that would support a finding of constructive...

[00:18:37] Speaker 01:
possession, at least on these facts, all we have is propiquinity, closeness.

[00:18:43] Speaker 00:
Yeah, it's his car.

[00:18:44] Speaker 00:
He's driving it.

[00:18:44] Speaker 00:
Drugs are in the car.

[00:18:46] Speaker 01:
That's not enough under our case.

[00:18:47] Speaker 01:
That's not enough, is it?

[00:18:48] Speaker 00:
Right.

[00:18:49] Speaker 00:
Typically, no.

[00:18:50] Speaker 00:
It's not.

[00:18:51] Speaker 01:
So how do we know that his assumption of possessing illegal drugs, probably trafficking because of the amount of them, how can we know that that didn't taint or influences his

[00:19:06] Speaker 01:
additional 12 months sentencing.

[00:19:07] Speaker 01:
He's getting 12 more months for drug possession and 48 months for bad criminal history.

[00:19:14] Speaker 01:
How do we know?

[00:19:15] Speaker 00:
Yeah, Judge, I'd be constrained to concede that we don't on this cold record.

[00:19:19] Speaker 00:
I can't stand here and tell you that there's anything in the record that would suggest otherwise.

[00:19:23] Speaker 00:
It is a cold record on the issue.

[00:19:24] Speaker 01:
Why isn't that reversible?

[00:19:27] Speaker 00:
Well, the only... I guess the hill that we're going to stand on here is the fact that he seemed to be very

[00:19:34] Speaker 00:
clear at the end of the day when he says, I agree with what the party's variance is.

[00:19:41] Speaker 00:
However, I don't believe that 48 months is enough because, and then he gives the explanation this is his fifth federal conviction.

[00:19:51] Speaker 00:
So to the degree that he acknowledges what is in the PSR, we believe, at least from this record, that his ultimate conclusion drew strictly on the fact that it was his fifth federal conviction.

[00:20:05] Speaker 03:
I thought you had said at the very start of answering Judge Tipovich's prior question, I may have misunderstood that he did in fact attribute the possession of the fentanyl to the defendant.

[00:20:19] Speaker 00:
Yeah, I think that he, as we read the record, we believe that he disagreed with the defendant's objection about... Because he possessed it.

[00:20:27] Speaker 00:
He was driving the car.

[00:20:28] Speaker 00:
At least the court believed that, yes.

[00:20:30] Speaker 03:
And you're saying, well, and that's true because he constructively possessed it, right?

[00:20:34] Speaker 00:
I think that's a plausible reading.

[00:20:36] Speaker 00:
He doesn't say that I believe he constructively possessed it.

[00:20:39] Speaker 00:
It's very sort of vague in the discussion.

[00:20:42] Speaker 03:
I mean, if he possessed it, it was either constructive or actual.

[00:20:46] Speaker 03:
Right.

[00:20:47] Speaker 03:
And you're not suggesting, nobody's suggesting he actually possessed it.

[00:20:52] Speaker 03:
It was under the womancy, right?

[00:20:55] Speaker 03:
It was under the womancy.

[00:20:56] Speaker 03:
And then you say, well, I'm going to defend that, I think, based on constructive possession, right?

[00:21:03] Speaker 00:
Yeah, I don't want to confuse the court.

[00:21:06] Speaker 00:
I think the court was exactly right.

[00:21:08] Speaker 00:
There were two options.

[00:21:09] Speaker 00:
They think it was constructive or it was regular.

[00:21:11] Speaker 03:
I don't think it's a distinction without a difference.

[00:21:13] Speaker 03:
And there's no way in the world, under Little, that there was anything in the PSR or that was presented to Judge Krauss that suggested that the defendant had the intent to exercise dominion or control over the fentanyl under the woman's seat.

[00:21:31] Speaker 00:
There was no evidence to suggest

[00:21:33] Speaker 00:
anything.

[00:21:34] Speaker 03:
And so, why have, not trying to beat a dead horse, but how can we then say, okay, well, the judge was going to do this anyway, he relied on something that he shouldn't have, possession of the fentanyl, but no big deal, you ought to affirm anyway.

[00:21:58] Speaker 03:
How do we do this?

[00:21:59] Speaker 03:
If the judge imposed a sentence,

[00:22:02] Speaker 03:
based on something that was not even a plausible, reasonable, arguable fact.

[00:22:10] Speaker 03:
I mean, it's elusive.

[00:22:11] Speaker 03:
I mean, in some cases.

[00:22:14] Speaker 00:
I guess I'd push back a little bit to say that it's implausible.

[00:22:17] Speaker 00:
It is his car.

[00:22:18] Speaker 00:
He is driving.

[00:22:19] Speaker 00:
The drugs are in the car.

[00:22:21] Speaker 00:
If that is insufficient in the court's mind, then I think, again, we're constrained to concede that that would be a problem under the circumstances.

[00:22:27] Speaker 01:
But at the end of the day... You'd say it's harmless error.

[00:22:30] Speaker 00:
Yeah, because at the end of the day, we believe that the court made it very clear what its biggest issue was, which was the defendant's criminal history.

[00:22:36] Speaker 00:
And at the end of the day, we think that while we can appreciate the court's concern about the lack of a full explanation or at least a clear explanation as to whether or not he definitively disagreed with defense counsel's argument, he simply makes a very sort of vague statement about that.

[00:22:56] Speaker 00:
And I don't disagree that that

[00:22:57] Speaker 00:
I wish it would have been more definitive, but at the end of the day, we do fall back on the harmlessness because we do think that the court, when it needed to be most definitive, simply said, look, this is why I'm doing this at the end of the day.

[00:23:15] Speaker 00:
Again, we hope the court appreciates the posture that this case comes to.

[00:23:20] Speaker 00:
It's very unique.

[00:23:21] Speaker 00:
It's certainly unique in the sense that both parties agreed to a substantial variance.

[00:23:25] Speaker 00:
The court simply went 12 months more.

[00:23:27] Speaker 00:
In the event that the court believes that that was insufficient, we understand that a remand for resentencing is certainly inappropriate under the circumstances, but we would ask the court to affirm based upon the court's more definitive statement about the defendant's criminal history.

[00:23:40] Speaker 00:
And unless the court has any questions, I'd forfeit the remainder of my time.

[00:23:44] Speaker 00:
Thank you.

[00:23:44] Speaker 00:
Thank you, Judge.

[00:23:52] Speaker 02:
Mr. Harnsmeyer.

[00:23:55] Speaker 02:
At least the court?

[00:23:58] Speaker 04:
I'll just pick up on that.

[00:24:01] Speaker 04:
Because I think the problem with saying even that fentanyl possession issue is harmless is sort of twofold.

[00:24:12] Speaker 04:
One, the government is basically just cherry picking.

[00:24:16] Speaker ?:
I'm glad it sent out a transfer.

[00:24:19] Speaker 04:
I think they're just focusing on one thing.

[00:24:23] Speaker 04:
And I don't think that works.

[00:24:28] Speaker 04:
In my experience, that doesn't work.

[00:24:30] Speaker 04:
For defendants, I would hope it doesn't work for the government either.

[00:24:34] Speaker 04:
I mean, I think if the, obviously, if the district court had only said,

[00:24:40] Speaker 04:
I'm imposing the steps for maximally causal.

[00:24:45] Speaker 04:
Your criminal history and your fifth prior conviction in this would be a different case.

[00:24:50] Speaker 04:
But that's not that.

[00:24:52] Speaker 04:
And we have multiple errors and mistakes.

[00:24:59] Speaker 04:
You know, when you talk about harmless air in this context, I mean, this was a case where the parties recommended for your sentence.

[00:25:11] Speaker 04:
He got more than that.

[00:25:14] Speaker 04:
Based on these mistakes, this is real time that this person is doing in prison.

[00:25:19] Speaker 04:
The fact that he could be better on remand,

[00:25:23] Speaker 04:
is something that we should, I think, explore because, you know, if this goes back maybe it's 55 months, you know, that's five years less than serving in prison.

[00:25:34] Speaker 04:
I don't think the harmless air analysis works in the way the government's suggesting.

[00:25:41] Speaker 04:
We can just find one basis that is legitimate so far when there are so many problems with what the district court said.

[00:25:51] Speaker 04:
I don't want to circle back to the top of the air to judge him for this question, because I looked at the statute while Mr. Maddox was arguing, and I do think, so the thing that the 3553A language that stuck out to me, the idea of maybe like a split sentence, a court could say, I'm going to give you like a year and a day in prison, and

[00:26:18] Speaker 04:
then you're going to do some sort of supervised release term where you're going to have to do treatment.

[00:26:29] Speaker 04:
That to me makes sense when you do 3553A2D and that's consistent with 3582A.

[00:26:39] Speaker 01:
It does say, it says the court shall consider the need for the sentence imposed

[00:26:46] Speaker 01:
to provide the defendant with needed educational or vocational training medical care or other correctional treatment in the most effective manner.

[00:26:55] Speaker 01:
In this case, I know we have a lot of problems with the sentencing form, but somebody checked the box for 3553A2D, which suggests that's what the language was referring to.

[00:27:16] Speaker 01:
What's your take on that?

[00:27:20] Speaker 04:
I mean, I don't dispute that, but I think that is the taboo here.

[00:27:24] Speaker 04:
I think that's the exact errors in Tapia and Gordon's case.

[00:27:29] Speaker 04:
That's the statutory provision that courts cite, and that's the error because we can't cite that provision to the most law enforcement.

[00:27:43] Speaker 02:
Your time is expired.

[00:27:44] Speaker 02:
I asked you to speak slowly, so I'm going to be liberal with your time, but I assume you're completed.

[00:27:52] Speaker 02:
I don't know if there are any other questions.

[00:27:54] Speaker 02:
So, case is submitted and counsel excused.

[00:27:57] Speaker 02:
Good luck with your COVID.

[00:27:58] Speaker ?:
Yeah.