[00:00:00] Speaker 00:
is United States versus Hearst.

[00:00:02] Speaker 00:
It's 22-7-0-4-1.

[00:00:03] Speaker 00:
And we'll hear from the Repellents' Council, please.

[00:00:14] Speaker 02:
Good morning, and may it please the Court, Meredith O'Harris, appearing on behalf of Garrett Hearst.

[00:00:19] Speaker 02:
I'm happy to answer questions from the court on any of the issues in the briefs today, but I otherwise intend to focus my argument this morning on the second issue, relating to the district court's ruling on the acceptance of responsibility credit.

[00:00:33] Speaker 02:
I'd like to reserve at least three minutes for rebuttal.

[00:00:38] Speaker 02:
Section 3E1.1A provides that when the defendant clearly accepts responsibility for his offense, the court should decrease his offense level by two levels.

[00:00:49] Speaker 02:
Did he clearly accept his responsibility?

[00:00:51] Speaker 02:
That's the key question in this case.

[00:00:54] Speaker 02:
That's right, Your Honor.

[00:00:54] Speaker 02:
And I believe that the record shows that Mr. Hurst clearly accepted responsibility when we take into consideration the application notes and the guidance that they provide and the considerations before any district court on this issue.

[00:01:09] Speaker 01:
He went to trial, and while in trial, Cross examines the victim concerning an element of the crime.

[00:01:19] Speaker 01:
How is that an acceptance of responsibility?

[00:01:23] Speaker 02:
Couple points.

[00:01:24] Speaker 02:
First, the application notes make clear that the acceptance of responsibility credit turns primarily or principally upon a defendant's pretrial statements and conduct.

[00:01:34] Speaker 02:
And in this case, Mr. Hurst pled guilty very early on in the proceedings pursuant to two separate plea agreements.

[00:01:41] Speaker 02:
He also stated to the court at the March 2022 change of plea hearing that, quote, without offering any excuses, his offense was an awful crime of opportunity.

[00:01:55] Speaker 01:
So he pled twice but withdrew both pleas.

[00:01:58] Speaker 01:
So how does that help her?

[00:02:00] Speaker 02:
Well, the reason that he withdrew those pleas is because the court refused essentially to accept his guideline range sentence, which was the second plea we have challenged on appeal.

[00:02:11] Speaker 02:
But turning to Your Honor's point about his trial conduct as well, it is true that Mr. Hurst cross-examined the victim at trial.

[00:02:20] Speaker 02:
But I would point out that the cross-examination was really only about the victim's Indian heritage and not about

[00:02:28] Speaker 02:
his actual culpability for being... Why is that significant?

[00:02:32] Speaker 02:
Well, I think that's significant because under this court's, you know, for example, in Galvin, whether or not the defendant is challenging the factual elements, first of all, the application notes also make clear about

[00:02:44] Speaker 02:
whether the defendant is challenging the factual elements of his culpability, as opposed to perhaps a legal element of the offense.

[00:02:53] Speaker 00:
Well, you're saying, so this is a legal issue as opposed to a factual issue.

[00:03:00] Speaker 00:
But how does that matter if she is of any inheritance or not?

[00:03:08] Speaker 00:
That is an element of the crime just like rape is.

[00:03:12] Speaker 00:
I mean, if you defend yourself saying, I did not commit rape, or I argue that this victim is not of Indian heritage, it's a factual issue.

[00:03:26] Speaker 00:
Basically, are you Indian of Indian heritage or not?

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And either one has exactly the same significance.

[00:03:32] Speaker 00:
Both of them are, although different in nature, they're both inherently factual.

[00:03:39] Speaker 02:
That's absolutely true.

[00:03:41] Speaker 02:
The Indian heritage is an element of the offense, but it's jurisdictional in nature as opposed to, did I do this crime?

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And so I think that that's the way that this court has tried to create a distinction between, in the acceptance of responsibility case law, between factual disputes about whether I'm guilty of this crime and these legal defenses.

[00:04:05] Speaker 02:
So I appreciate the court's point that this is an element of the offense.

[00:04:09] Speaker 02:
But it does seem to be relevant in the case law in how when defendants do take their cases to trial, whether they're nonetheless entitled to this credit.

[00:04:19] Speaker 00:
Is your argument that Judge Jones arbitrarily had a cutoff point if we decide, hypothetically, that Judge Jones did not impose a specific cutoff point to demarcate

[00:04:34] Speaker 00:
whether or not the defendant was eligible for the two-point adjustment, do you lose?

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Is your argument contingent on us finding that he selected a particular cutoff point?

[00:04:46] Speaker 02:
We make both arguments.

[00:04:48] Speaker 02:
We argue in the first instance that the court was making a or appeared to be making a legal determination about at what point are you no longer eligible for the acceptance of responsibility credit.

[00:05:01] Speaker 02:
For example, when the court said, quote, it seems to me the government still had some burden in having to prepare for trial.

[00:05:08] Speaker 02:
So how does that align with what seems like both the letter and the spirit?

[00:05:12] Speaker 00:
And this is an oral argument, not an disorder, right?

[00:05:15] Speaker 00:
That's correct.

[00:05:15] Speaker 00:
And so if, let's say, I ask you an argumentative question, sort of like maybe Judge Jones did, and you file a petition for rehearing, would you be able to say, well, Judge Vackerack insinuated X.

[00:05:31] Speaker 00:
when he was asking me a question, which is exactly what Judge Jones did.

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So how can the asking of a question be taken as evidence that he selected a cutoff point, particularly when he made the decision?

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He said in this instance, and he incorporated the government's argument that did not urge a particular cutoff point.

[00:05:55] Speaker 02:
That's exactly right, Your Honor.

[00:05:56] Speaker 02:
I do think that the transcript is ambiguous as to what exactly his ruling or his analysis was in issuing his ruling.

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But if the court is disinclined to find that the court was making a cutoff point analysis, I still think that there was an abuse of discretion here on these facts.

[00:06:15] Speaker 03:
Well, can I back you up a little bit?

[00:06:17] Speaker 03:
Sure.

[00:06:17] Speaker 03:
You just said that it was ambiguous.

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I thought it couldn't have been any clearer when it said, here's my decision in this instance.

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This is what I'm going to do after hearing all the argument.

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And then it specifically said it was going to rely upon and incorporate the government's briefing and argument.

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I look back to the government's briefing and argument, and they don't make this legal argument that essentially there's this cutoff once you go to trial.

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So there seems to be nothing in the record to support your legal argument.

[00:06:48] Speaker 02:
Respectfully, I think there are a couple instances on pages 9, 10, 11, and 13 where the court suggests that it is trying to understand the boundaries of this guideline.

[00:06:58] Speaker 03:
Well, I understand.

[00:06:59] Speaker 03:
But its ultimate ruling is what we have to look at and the grounds for its ultimate ruling, which it said were for the reasons stated by the government.

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And incorporate.

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Two points.

[00:07:11] Speaker 02:
In making that ruling, I agree that the court says that.

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I think that that militates against the legal

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argument we're making about the court's error.

[00:07:21] Speaker 02:
The court says taking into consideration what was said here today and the questions the court has.

[00:07:27] Speaker 02:
The court also said those things when it was issuing its ruling.

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And some of those questions that the court had posed were really about the contours of the guideline and interpreting the cutoff point and where we fall within that cutoff point.

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But taking the court's lead on this, I still think that there was an abuse of discretion here

[00:07:47] Speaker 02:
if the court was exercising discretion for a couple of different reasons.

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First, as I noted, the application notes to the guideline make clear that we're looking at pretrial statements and conduct.

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And in this case, the district court never explicitly found that Mr. Hurst wasn't accepting responsibility.

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It seemed to suggest that the timeliness factor was the most critical.

[00:08:11] Speaker 02:
And in this case, Mr. Hearst pled guilty almost as soon as possible, twice before trial.

[00:08:17] Speaker 01:
And the application notes state that a pre-trial guilty plea is... But all of this reference to pleading guilty and then withdrawing the plea, that's a wash, isn't it?

[00:08:27] Speaker 01:
I mean, why continue to bring that up?

[00:08:30] Speaker 01:
It doesn't matter because it didn't stick.

[00:08:32] Speaker 01:
It didn't stick.

[00:08:33] Speaker 02:
You're right, it didn't stick.

[00:08:34] Speaker 02:
But the reason it didn't stick was because the court was disinclined to accept the guideline range sentence.

[00:08:41] Speaker 01:
Is that the question?

[00:08:41] Speaker 01:
We're looking at whether or not he's accepting responsibility.

[00:08:45] Speaker 01:
It matters not what anyone else in the room is doing or not doing.

[00:08:48] Speaker 02:
Okay.

[00:08:49] Speaker 02:
I appreciate the court's concern about that.

[00:08:51] Speaker 02:
I just think that this is evidence that is relevant in the issue.

[00:08:55] Speaker 02:
It might not be dispositive, and certainly the application of safety.

[00:08:58] Speaker 01:
So are we really parsing between eligibility or entitlement?

[00:09:04] Speaker 01:
You can be eligible for this reduction, but then not entitled.

[00:09:11] Speaker 01:
That's correct.

[00:09:12] Speaker 02:
I agree with that.

[00:09:13] Speaker 02:
sort of formulation of how this guideline applies in any given instance.

[00:09:19] Speaker 02:
But I had mentioned before that Mr. Hurst also stated at the second change of plea hearing, he's not offering any excuses for his conduct and that this offense was an awful crime of opportunity.

[00:09:31] Speaker 02:
He also provided a factual basis for his guilt.

[00:09:34] Speaker 02:
At trial, he gave no opening statement.

[00:09:37] Speaker 02:
At trial, when he

[00:09:39] Speaker 02:
cross-examined the forensic nurse.

[00:09:41] Speaker 02:
He only asked her to clarify her direct exam testimony stating that there was no injury to the victim's hymen, which is sort of just mitigating.

[00:09:49] Speaker 02:
It's not really a defense to his underlying criminal conduct.

[00:09:55] Speaker 01:
So with that kind of questioning, you think your client was admitting, was accepting responsibility?

[00:10:03] Speaker 01:
I certainly don't think that he was.

[00:10:06] Speaker 01:
Pretty hard to argue, isn't it?

[00:10:09] Speaker 02:
I do appreciate that this is not a... If we're just looking at the fact of him going to trial, it doesn't suggest acceptance of responsibility, but I do think taking the totality of the facts at issue in this particular case that he was doing as much as possible to try and accept responsibility under the circumstances.

[00:10:28] Speaker 00:
What if he stood mute?

[00:10:31] Speaker 00:
What if he didn't say anything?

[00:10:33] Speaker 00:
No opening statement.

[00:10:35] Speaker 00:
I'm not going to cross-examine anybody.

[00:10:37] Speaker 00:
I'm not going to present any evidence.

[00:10:40] Speaker 00:
Just to follow up on my colleagues, Judge Briscoe's question, does passivity, does inaction equal acceptance?

[00:10:51] Speaker 00:
Acceptance seems like an active action.

[00:10:56] Speaker 00:
And through inaction, that seems difficult.

[00:11:00] Speaker 00:
And so I'd like to address that.

[00:11:04] Speaker 02:
Sure.

[00:11:04] Speaker 02:
I think what the courts are generally looking for and sort of what

[00:11:07] Speaker 02:
become what the application notes are trying to ventilate here are, is this person expressing remorse?

[00:11:14] Speaker 02:
And we do have that in this record well before trial, that Mr. Hurst expressed remorse and acknowledged, sort of atoned for what had happened here at that second change of plea hearing.

[00:11:26] Speaker 02:
And so I think that the application notes make clear significant evidence for the court's analysis.

[00:11:33] Speaker 03:
If my colleagues are all right, I know you said you wanted to focus on this issue, but could I move you on to your issue on the supervised release term of 13 years?

[00:11:44] Speaker 03:
You didn't cite any authority, as I recall, in your brief for your suggestion that the court needs to set out a separate rationale for the supervised release term, but the government did cite U.S.

[00:11:58] Speaker 03:
v. Zang, which is a 2,000 case.

[00:12:01] Speaker 03:
Judge Briscoe was on the panel.

[00:12:03] Speaker 03:
And I wonder, you briefly mentioned it in your reply, I wonder how you think that applies.

[00:12:10] Speaker 03:
Does it support your argument that in this instance the court was required to set out separate reasons?

[00:12:19] Speaker 02:
I think that the case law is pretty clear on this point, Your Honor, that the court needs to give some rationale and it could

[00:12:26] Speaker 02:
this court could extrapolate from the court's overall sentence.

[00:12:30] Speaker 02:
Does this also support the supervised release term?

[00:12:34] Speaker 02:
I don't know off the top of my head about the particular case your honor is mentioning and how that might.

[00:12:40] Speaker 03:
Well, the government cited it, and you didn't cite any authority, so I just thought it was interesting.

[00:12:45] Speaker 03:
It would seem to potentially support your argument.

[00:12:48] Speaker 03:
I just wondered what your thought was.

[00:12:52] Speaker 02:
Yeah, I think Gall is very clear that the court needs to articulate some rationale.

[00:12:57] Speaker 02:
And here it just arbitrarily said 13 years.

[00:13:01] Speaker 03:
Well, the government says that Gall doesn't mean that the court can't simply provide essentially the same reasons for the imposition of supervised release, especially here where he was going to receive a term of supervised release.

[00:13:16] Speaker 03:
That was mandatory.

[00:13:19] Speaker 03:
And the court wasn't deciding whether to impose a term.

[00:13:23] Speaker 02:
Yeah, in the sentencing transcript on this issue, the government's point on that front, the court never said, and for the same reasons as my recollection from the transcript, I'm going to also impose 13 years.

[00:13:35] Speaker 02:
There just was no rationale at all.

[00:13:38] Speaker 02:
And I think that that is a problem under some of this language that we've seen in the Gall cases.

[00:13:45] Speaker 03:
But here we're at plain error, aren't we?

[00:13:47] Speaker 02:
That's right, Your Honor.

[00:13:48] Speaker 02:
Right.

[00:13:48] Speaker 03:
And what about the third prong?

[00:13:51] Speaker 02:
Yeah.

[00:13:52] Speaker 03:
This judge seemed pretty.

[00:13:55] Speaker 03:
on doing what he could to either in custody or under supervision despite the lack of anything about the 13 years.

[00:14:07] Speaker 02:
Our position is on the third prong that if the court were required to explain or provide some explanation that perhaps it is possible he might have looked, the court might have looked at these

[00:14:18] Speaker 02:
Factors a little bit more closely and and therefore this has affected mr.. Her substantial rights Okay, thank you.

[00:14:26] Speaker 02:
Yeah.

[00:14:26] Speaker 02:
Thank you.

[00:14:27] Speaker 02:
I only have 13 seconds left, so I'll do my best on rebuttal but otherwise Thank you.

[00:14:32] Speaker 00:
Thank you

[00:14:38] Speaker 04:
Good morning, your honors.

[00:14:39] Speaker 04:
Lisa Williams representing the United States of America.

[00:14:43] Speaker 04:
I'll just quickly pick up where we left off with the supervised release argument.

[00:14:47] Speaker 04:
Government's argument is under Holzer, which I think gave a really detailed analysis of what constitutes the sentence.

[00:14:55] Speaker 04:
It's the term of imprisonment as well as the term of supervised release.

[00:14:59] Speaker 04:
And so when the court is saying, the reasons for my sentence are x, y, and z, it is incorporating its sentence both with respect to the term of imprisonment as well as the term of supervised release.

[00:15:10] Speaker 00:
And what's the authority that we have in our circuit?

[00:15:13] Speaker 00:
Some circuits have said that.

[00:15:14] Speaker 00:
But what is the authority in our circuit to say that under gall, one explanation

[00:15:22] Speaker 00:
can encompass not only the incarceration, but the supervised release.

[00:15:27] Speaker 04:
I couldn't find a case, Your Honor, that specifically pulled out.

[00:15:30] Speaker 04:
Now, the case that the government cited the... Zangie?

[00:15:33] Speaker 04:
Zangie, the bugsy.

[00:15:35] Speaker 04:
That was when the term of supervised release was not required.

[00:15:39] Speaker 04:
And I would submit it.

[00:15:40] Speaker 04:
So it's an above or an out of guideline range term of supervised release.

[00:15:44] Speaker 00:
Well, what about in Zangie, they cite Kravchuk, which was a within guidelines term of supervised release.

[00:15:52] Speaker 00:
And in Kravchuk, we said that we can't speculate on the reasons for the duration of the supervised release term when the court didn't provide an explanation, even though, as I understand it, in Kravchuk, the court did give an explanation for the incarceration term.

[00:16:08] Speaker 04:
I would argue, Your Honor, that since Zikey was a 2000 case, Kravchuk and I'll admit, I didn't go back and read that case, but it's obviously pre-Gaul.

[00:16:16] Speaker 04:
Post-Gaul, there's been extensive case law on the duty of the court of how specific it has to get.

[00:16:22] Speaker 04:
when it's imposing a sentence outside of the guideline range.

[00:16:25] Speaker 04:
And there is well-settled law in the circuit that if it's a within guideline range sentence.

[00:16:31] Speaker 00:
Was Gull addressing the need to explain and justify a supervised release term?

[00:16:37] Speaker 04:
No, Your Honor.

[00:16:38] Speaker 04:
In fact, what Gull was addressing is whether or not the district court could consider the 3553A factors and go and vary outside the guideline case.

[00:16:48] Speaker 04:
And I'm from Iowa, and what Judge Pratt did in Gull is that there's no grounds for departure, and I cannot vary.

[00:16:56] Speaker 04:
The guidelines and the sentencing law don't allow me to consider a sentence unless a ground for departure exists.

[00:17:01] Speaker 04:
That case went up to the Supreme Court, and the Supreme Court said, no, no, no, no, no.

[00:17:05] Speaker 04:
District court judges have the authority to vary based on all of the 3553A factors.

[00:17:12] Speaker 04:
And a variance is different, of course, than a departure.

[00:17:16] Speaker 04:
That's the seminal law that Gull established in federal sentencing.

[00:17:22] Speaker 03:
But here, we're talking about the reasons, the specific reasons the court imposes

[00:17:28] Speaker 03:
imposes a term, or what the term it imposes is, or what the conditions are.

[00:17:32] Speaker 03:
And it has, I mean, it doesn't consider all of the same factors.

[00:17:37] Speaker 03:
It doesn't consider all of the same 3553A factors when it determines supervised release.

[00:17:43] Speaker 03:
So it makes sense to me that we would require, as we did in Kravchuk, which was actually a 2003 case, and cited Zangye, as we did there.

[00:17:54] Speaker 03:
We said you've got to have, you've got to state separately your reasons.

[00:17:58] Speaker 04:
That's correct, Your Honor, and you do.

[00:18:01] Speaker 04:
But the court did separately state reasons for its sentence, and I don't think anybody... For the prison term, the 180 miles.

[00:18:12] Speaker 04:
Well, that's what the government disagrees with, Your Honor.

[00:18:15] Speaker 04:
The sentence, again, looking at Holzer,

[00:18:18] Speaker 04:
It is very clear that the term sentence encompasses the term of imprisonment and the term of supervised release.

[00:18:24] Speaker 00:
Well, I'm not trying to parse words with you.

[00:18:26] Speaker 00:
Are you saying Judge Jones said, I'm giving you this 13 years supervised release term because of X?

[00:18:34] Speaker 04:
No, he said, I'm imposing the sentence.

[00:18:37] Speaker 04:
No, that's correct.

[00:18:38] Speaker 04:
And he didn't specifically pull out the supervised release term.

[00:18:42] Speaker 04:
But the government's position is that when he separately pulls out the reasons for the sentence, that includes his term of supervised release.

[00:18:50] Speaker 04:
And no detailed explanation of his analysis is required when the term of supervised release falls within the guideline sentence.

[00:18:59] Speaker 04:
had the term, the guideline range been five to 10 years and he gives a 13 year term of supervised release, then there may be a requirement that he separately comment on why he thinks that's necessary.

[00:19:12] Speaker 00:
I'm sorry to not waste your time, but let me ask you this.

[00:19:16] Speaker 00:
Even when you have a within guideline sentence, you don't have to, our precedent under

[00:19:24] Speaker 00:
doesn't necessarily require a detailed, particularized explanation, but you have to have at least a generalized explanation.

[00:19:32] Speaker 00:
And so if, hypothetically, we read Kravchuk to say that you have to have at least a generalized explanation, not only under Holzer for the incarceration term, but for the supervised release term, aren't we going to be hard pressed to find even a generalized reference from Judge Jones to the reason that he selected a 13-year term?

[00:19:54] Speaker 04:
Well, if you're requiring a statement from Judge Jones that says, the reason I selected the supervised release term is because of X, Y, and Z, you will not find that in the record.

[00:20:04] Speaker 04:
However, Judge Jones gave a detailed explanation as to what he found aggravating in this circumstance, the nature and circumstance of the offense, as well as the defendant's criminal history.

[00:20:15] Speaker 04:
The government's position is that he did provide an analysis.

[00:20:19] Speaker 04:
It is there.

[00:20:22] Speaker 04:
to require more would be, in the government's position, something that the court hasn't specifically required before, and so it fails.

[00:20:32] Speaker 04:
Plain error, because why it may have been an error, the government does not believe it's one that's plain.

[00:20:36] Speaker 03:
Well, what if we read that we did require an incorrect check?

[00:20:40] Speaker 03:
If we read it that way, what would you say about the third prong?

[00:20:43] Speaker 03:
You didn't make an argument about the third prong.

[00:20:46] Speaker 04:
No, because the government doesn't think that the court needs to get to the third prong.

[00:20:49] Speaker 04:
But if the court does, you know, it's

[00:20:55] Speaker 03:
It's a little bit hard to say since we don't have, if reasons are required and we have no reasons.

[00:21:00] Speaker 04:
Well, Your Honor, you took the first words out of my mouth.

[00:21:02] Speaker 04:
It's a little bit hard to say.

[00:21:04] Speaker 04:
But what I was going to follow that up with is this is a pretty detailed sentencing analysis by this district court judge compared to some other analysis.

[00:21:14] Speaker 04:
I mean, he really did dive into what he found aggravating.

[00:21:19] Speaker 04:
This judge also gave, the government believes, a significant amount of thought into this 180-month sentence.

[00:21:27] Speaker 04:
He was confronted it with the first Rule 11C1C agreement, with the second Rule 11C1C.

[00:21:33] Speaker 04:
So this is a case where this judge gave a degree of attention to the ultimate sentence he wanted to impose that I'm not sure that if he had to go back and

[00:21:45] Speaker 04:
provide reasons for the 13-year term, it would alter his sentence or his decision.

[00:21:53] Speaker 01:
So under plain error, the outcome would not be altered.

[00:21:55] Speaker 01:
That's correct, Your Honor.

[00:21:56] Speaker 01:
Substantive harm.

[00:21:58] Speaker 01:
That's correct.

[00:21:59] Speaker 04:
And I think that the court can also get to do an analysis under the fourth prong too, because again, it's a within guideline range term of supervised release.

[00:22:07] Speaker 04:
Um, so there, um, is a presumption of reasonableness when the court sentences within the guideline range, uh, at this stage of, of review.

[00:22:18] Speaker 04:
And so I just think that the defendant has not met his burden to establish plain error exists with regard to the supervised release term.

[00:22:27] Speaker 04:
Turning to the acceptance of responsibility issue, the government disagrees that this is at all a legal issue for the court.

[00:22:36] Speaker 04:
The district court did not establish a cutoff.

[00:22:39] Speaker 04:
As the court has already noted, that was in a colloquy asking questions to counsel.

[00:22:44] Speaker 04:
The district court specifically said, in this instance, and then relied on the government's

[00:22:49] Speaker 04:
reasoning.

[00:22:50] Speaker 04:
And what's important about that is the government in their reasoning, in their objection letter and brief, they know that acceptance of responsibility can be available to a defendant who proceeds to trial.

[00:23:03] Speaker 04:
So the government never argued that as a matter of law if you go to trial you never get acceptance.

[00:23:08] Speaker 04:
The government acknowledged that you could

[00:23:10] Speaker 04:
But for the reasons present in this specific case, and then they detail out their reasoning, acceptance of responsibility was not proper.

[00:23:19] Speaker 04:
So the issue before this court is whether the district court clearly erred in determining that the defendant had not met his burden to establish an entitlement to acceptance of responsibility.

[00:23:31] Speaker 04:
The government takes serious issue with the characterization

[00:23:38] Speaker 04:
of the defendant's cross-examination at trial.

[00:23:41] Speaker 04:
The defendant did not just cross the victim on her Native American status.

[00:23:45] Speaker 04:
He crossed the victim on whether her father was angry at her when she came home, which of course is an inference speaking to the victim's credibility and whether or not she's making up this story.

[00:23:57] Speaker 04:
Your dad was home, angry when you came home late on Christmas Eve, so you had to invent this story that you were raped.

[00:24:03] Speaker 04:
That's the closing, right?

[00:24:05] Speaker 04:
So he also

[00:24:06] Speaker 04:
crossed her on different information.

[00:24:08] Speaker 04:
She's provided to different people about how she met the defendant.

[00:24:12] Speaker 04:
That attacks her credibility and whether or not she's telling the truth.

[00:24:16] Speaker 04:
She was crossed on why she provided defendant with her phone number instead of a fake number.

[00:24:21] Speaker 04:
Why would you even do this?

[00:24:23] Speaker 04:
That's blaming her for getting her into this situation, whether she invited defendant to her home, and then of course, whether she was in fact an Indian for the purpose of jurisdiction.

[00:24:33] Speaker 04:
The cross about the Hyman,

[00:24:35] Speaker 04:
is particularly disturbing because what it suggests is if her hymen is not broken, there was no penetration.

[00:24:45] Speaker 04:
That goes to the very element of whether or not there was penetration by the defendant's penis.

[00:24:53] Speaker 04:
of Hrvalva, and so it is not something that we just casually discuss.

[00:24:57] Speaker 04:
And there was also an incredibly thorough cross-examination on the DNA evidence and the chain of custody.

[00:25:04] Speaker 04:
Now, given that, this is not a defendant who went to trial to preserve some sort of legal issue and didn't challenge every single element of his offense.

[00:25:16] Speaker 04:
This defendant crossed nine of the 11 witnesses and then teed up a Rule 29 motion.

[00:25:22] Speaker 04:
And it was only then that he lost his Rule 29 motion that he pled guilty.

[00:25:28] Speaker 04:
He also repeatedly refers to it as a crime of opportunity.

[00:25:32] Speaker 04:
This defendant groomed this child by sending her repeated text messages.

[00:25:40] Speaker 04:
visiting her house, supplying her with drugs or offering her drugs and alcohol and then picked her up and drove her somewhere and refused to bring her home when she asked and instead he raped her.

[00:25:56] Speaker 04:
So no, this is not a defendant who tried to accept responsibility, who went to trial to preserve some sort of legal issue.

[00:26:05] Speaker 04:
And the district court did not clearly err in determining that the acceptance of responsibility adjustment was not available to him.

[00:26:14] Speaker 04:
And if there are no other questions from the bench, the government would rest on its briefing.

[00:26:19] Speaker 00:
Thank you.

[00:26:22] Speaker 00:
And the appellant has one minute.

[00:26:27] Speaker 02:
Thank you for the additional time.

[00:26:30] Speaker 02:
I just want to acknowledge one point about the government's putting the government to its burden rationale that has been extensively discussed and heavily relied upon in both the proceedings below and in the briefing on appeal.

[00:26:42] Speaker 02:
3E1.1 subsection B states that the defendant is not entitled to an additional one point reduction if the government has to prepare for trial.

[00:26:53] Speaker 02:
Mr. Hurst has never alleged that he was entitled to this additional point.

[00:26:57] Speaker 02:
That is sort of more consistent with the district court's cutoff point analysis, that particular subsection.

[00:27:06] Speaker 02:
And the application notes likewise state that the credit is not intended to apply to a defendant who puts the government to its burden at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.

[00:27:20] Speaker 02:
And as I noted, Mr. Hearst expressed remorse for his actions months before the trial in this case.

[00:27:27] Speaker 02:
For that reason, we respectfully ask for resentencing.

[00:27:30] Speaker 02:
Thank you.

[00:27:32] Speaker 00:
Thank you, counsel.

[00:27:32] Speaker 00:
This matter will be submitted.