[00:00:00] Speaker 02: The next case is United States versus Landeros Gonzalez, number 245010. [00:00:09] Speaker 02: Mr. Lunn, welcome back. [00:00:11] Speaker 02: Thank you. [00:00:12] Speaker 05: May it please the court, my name is William Lunn and I represent the appellant Lewis David Landeros Gonzalez. [00:00:21] Speaker 05: When Congress enacted the Sentencing Reform Act of 1984, it required a judge under 3553A6 to avoid unwarranted sentencing disparities. [00:00:35] Speaker 05: The movement throughout the country to modify drug possession crimes from felonies to misdemeanors [00:00:45] Speaker 05: creates perhaps the largest number of persons who are affected by sentencing disparities since the time the Sentencing Reform Act was enacted in 1984. [00:00:59] Speaker 05: The numbers, in fact, are impressive. [00:01:03] Speaker 05: There's 22 states in the District of Columbia that have made it so that felonies that once were drug possession felonies are now misdemeanors. [00:01:15] Speaker 05: And that affects some 46% of the population. [00:01:18] Speaker 05: So in 46% of the country, it's a misdemeanor now. [00:01:23] Speaker 05: And in 54% of the country, it's a felony still. [00:01:30] Speaker 05: And even in this, in the, [00:01:33] Speaker 05: 10th Circuit itself. [00:01:35] Speaker 05: There's four states that have made this misdemeanors and there's two states where it's still felonies. [00:01:43] Speaker 01: In Oklahoma... Do you think criminal history points that the policy is to calculate them based on what society thinks about a certain type of conduct? [00:02:00] Speaker 01: Or is it at least somewhat based on a person's willingness to commit a crime that the government has defined as a felony? [00:02:11] Speaker 01: Does that make sense to you? [00:02:13] Speaker 05: I understand what you're saying. [00:02:15] Speaker 05: I think the answer with regard to the calculation of criminal history points goes to how the state has now dealt with this. [00:02:27] Speaker 05: And in Oklahoma, Governor Stitt, in 2019, signed this legislation that made this all retroactive. [00:02:38] Speaker 05: And when you go to 22 OS 19B, prior felony convictions are supposed to now be automatically expunged. [00:02:48] Speaker 05: And under 22 OS 19G, they shall be deemed as though they never occurred. [00:02:55] Speaker 05: Now, unfortunately for my client, that didn't get done. [00:03:01] Speaker 05: But as you'll note in my brief, one local newspaper, the largest one in the state, claims that there are some 60,000 people in Oklahoma that are affected by this legislation. [00:03:14] Speaker 05: So this is something that's an important issue. [00:03:18] Speaker 05: Congress said various things about this unwarranted sentencing disparity. [00:03:24] Speaker 02: Mr. Lewin, can I just jump in? [00:03:27] Speaker 02: And you just referred to your brief. [00:03:31] Speaker 02: Am I correct in reading your brief as primarily making a substantive reasonableness argument? [00:03:43] Speaker 02: No, there's also a procedural element. [00:03:44] Speaker 02: Well, that's what I'm asking. [00:03:47] Speaker 02: It seems that you've started out with this disparity point. [00:03:52] Speaker 02: And I understand that that's a central argument to your appeal. [00:03:57] Speaker 02: Do you agree that that goes to the substantive reasonableness of the length of the sentence? [00:04:04] Speaker 02: In other words, you didn't get the variance. [00:04:09] Speaker 05: I think in this case, frankly, that I felt like after I left the sentencing that I'd just been beating my head against the wall with the district court because I couldn't get the district court to deal with the issue of the substantive reason, with the disparity was involved here. [00:04:30] Speaker 05: The district court just simply wanted to cling to the guidelines as though that was all it was going to do. [00:04:37] Speaker 05: And so I think you have a procedural issue that is derived from the district court's failure to address a valid issue that was presented before it and deal with the unwarranted sentencing disparity that now exists in the state of Oklahoma. [00:04:56] Speaker 02: Well, but you're not contending that the calculation of the guidelines range was in error then. [00:05:05] Speaker 02: I mean, doesn't this go more to, [00:05:08] Speaker 02: whether the court should have varied based on the argument you're making just now. [00:05:13] Speaker 05: Well, there is a case that I've cited in my brief, which is Sabion Urbana, where it says it doesn't matter whether or not you've calculated the guidelines supposedly correctly or whether you do it by a variance. [00:05:28] Speaker 05: If you don't address the issue, then you've committed procedural [00:05:33] Speaker 05: OK, but did you argue procedural error in district court? [00:05:37] Speaker 05: Is that preserved? [00:05:39] Speaker 05: Well, I think I did. [00:05:40] Speaker 05: I obviously was arguing that the court needed to deal with this issue. [00:05:46] Speaker 02: And the most I ever- Let me ask you this. [00:05:48] Speaker 02: If we are in the realm of the substantive reasonableness of the Senate, 37 months was within the guidelines range under [00:06:03] Speaker 02: either competing view of the criminal history category that you argue. [00:06:10] Speaker 02: I mean, 37 was at the bottom of one and at the top of the other. [00:06:14] Speaker 02: So it seems like you actually did make some headway with the court to pick 37 months based on your disparity argument. [00:06:23] Speaker 02: So where's the substantive [00:06:28] Speaker 02: unreasonableness. [00:06:29] Speaker 05: Well, it's under Rosales-Norales and Molina-Margenes where the United States Supreme Court has dealt with this issue where you really should be changing the guideline and you're not just looking at sentences that might fit within a guideline, either of one of two guidelines, you're actually dealing with what is going to be the guideline range that the district court is going to be dealing with. [00:06:54] Speaker 02: Well, that may be so, but we also have law providing that as long as the sentences are within the guideline range, and if it's within both of the competing guideline ranges that have been argued here, it's presumptively reasonable. [00:07:09] Speaker 02: So why isn't this a presumptively reasonable sentence? [00:07:13] Speaker 05: Because the district court judge did not consider whether or not the guideline range should be dropped to a level that started some six months lower than the sentencing guideline range that was used by these old calculations that shouldn't have applied to it probably in the first place. [00:07:37] Speaker 05: I think you knew we were going to ask about this. [00:07:39] Speaker 05: Yes. [00:07:40] Speaker 04: That's a prong three argument, right, for procedural reasonableness. [00:07:44] Speaker 05: Yes. [00:07:45] Speaker 05: Well, as I said, the most... Assuming we're playing here. [00:07:51] Speaker 05: Yes. [00:07:52] Speaker 05: The most that we got, and you've got this situation that arises where you have unwarranted sentencing disparities. [00:08:01] Speaker 05: And I went back and read the legislative history of the Sentencing Reform Act. [00:08:07] Speaker 05: And they point out to all of these problems that can arise if you have this kind of situation. [00:08:13] Speaker 04: Well, the unwarranted sentencing, I understand your argument. [00:08:17] Speaker 04: You presented it extremely well. [00:08:18] Speaker 04: But on substantive reason on this, [00:08:21] Speaker 04: I'll just tell you what my concern is, and then if you talk me out of it, is 3553A6 refers to national disparities. [00:08:31] Speaker 04: And so you have an internal within Oklahoma disparities. [00:08:38] Speaker 04: And that can be considered, but I don't think that that is what 3553A6 addresses. [00:08:45] Speaker 04: And that's a national disparity. [00:08:48] Speaker 04: Your disparity argument fits within 53A6, but I may be wrong about it. [00:08:55] Speaker 05: Well, that's why I threw in. [00:08:57] Speaker 05: That's why I went out and looked at the population of the 22 states that have now changed the law and made it so that felony drug possession crimes are now misdemeanor drug possession crimes. [00:09:09] Speaker 05: And so that creates a national sentencing disparity issue. [00:09:13] Speaker 04: And do we know in those 22 states how those defendants have been sentenced? [00:09:18] Speaker 05: No, I don't know. [00:09:19] Speaker 05: That's as far as I went with this. [00:09:22] Speaker 05: But I don't think that it's an improper way in terms of analyzing whether or not there really is a national sentencing disparity issue for people who have similar conduct, similar offenses that are involved. [00:09:38] Speaker 01: But that ignores the states that didn't change the law. [00:09:41] Speaker 01: And seemingly, if you're looking at a national disparity, you have to consider all states, even the ones that didn't change the law. [00:09:48] Speaker 05: Well, if you're an inmate who gets an extra year or two of a sentence because you're in a state where they didn't change the law and they're counting your felony convictions with more points, then that creates the kind of problem that Congress was worried about, which is that it creates unnecessary tension among inmates, disciplinary problems arise. [00:10:12] Speaker 05: If you're an inmate in a penitentiary, [00:10:15] Speaker 05: and you're spending two years more than the guy in the cell next to you because he was from a state that had a misdemeanor drug possession modification, then that creates problems. [00:10:26] Speaker 05: But that would seem to counsel against your argument, though. [00:10:30] Speaker 05: Well, I don't think so. [00:10:31] Speaker 05: I think the judges in these cases have to take into consideration that there is this unwanted sentencing disparity because it exists by same conduct. [00:10:42] Speaker 01: I don't know which 22 states have done what you're talking about, but let's assume that Alabama has not done that. [00:10:52] Speaker 01: Probably not. [00:10:53] Speaker 01: OK. [00:10:56] Speaker 01: No offense to Alabama. [00:10:58] Speaker 01: No offense to Alabama. [00:11:00] Speaker 01: But should the Alabama district judges have to look at these and say, well, I've got a guy with [00:11:08] Speaker 01: who has two felony convictions. [00:11:11] Speaker 01: But if he were living in Oklahoma, these would have been expunged. [00:11:15] Speaker 01: So by considering the felony convictions in his criminal history, I'm ratcheting up his sentence and it's going to create a disparity because the state of Oklahoma has decided to expunge their convictions for people with felony marijuana possession. [00:11:33] Speaker 05: Well, the answer is if I were representing him in Alabama, I would certainly make that argument. [00:11:38] Speaker 05: And I would point out that there are 22 states nationally, 45% of the population, that have reduced these possession crimes to misdemeanors. [00:11:49] Speaker 05: And so you're causing this fellow to get a much higher sentence than what all these people and all these other federal courts in these states are getting. [00:11:59] Speaker 02: So let me just ask you a question about the guideline for criminal history. [00:12:05] Speaker 02: It provides adding three points for each prior sentence of imprisonment exceeding one year and one month. [00:12:14] Speaker 02: Aren't criminal history points based on the length of the sentence and not the label that you put on the crime? [00:12:22] Speaker 05: Well, the answer is they are accepted in Oklahoma. [00:12:27] Speaker 05: Because of these new statutes that Governor Sitz signed, they're not supposed to be anymore. [00:12:32] Speaker 02: They're supposed to be expunged. [00:12:33] Speaker 02: Well, no, I understand, but we know what the length of the sentence was for your client. [00:12:38] Speaker 05: You're not supposed to, though, under this law. [00:12:40] Speaker 05: You're not supposed to know. [00:12:41] Speaker 05: No. [00:12:42] Speaker 05: It's supposed to have been expunged. [00:12:44] Speaker 02: But it wasn't. [00:12:44] Speaker 05: And so the probation officer should never have been able to get to it. [00:12:47] Speaker 02: But it wasn't expunged. [00:12:48] Speaker 02: It wasn't. [00:12:49] Speaker 02: No. [00:12:50] Speaker 02: So, but how, well, OK. [00:12:52] Speaker 02: That's my point. [00:12:53] Speaker 02: Let me just, I'm still a little troubled on the, [00:12:57] Speaker 02: on this procedural issue. [00:13:03] Speaker 02: In looking at the sentencing record, it seems like the judge acknowledged the amendment. [00:13:09] Speaker 02: It wasn't that the judge ignored the amendment, in fact indicated some sympathy about it, but talked about the defendant's prior drug offenses, the two illegal re-entries, concern about gang involvement and substance abuse, [00:13:24] Speaker 02: then picks the 37 months. [00:13:26] Speaker 02: And not only that, at the end says, and I'm quoting from the record, sentencing disparities among defendants were considered in determining an appropriate sentence in this case. [00:13:40] Speaker 02: So the judge has made a statement indicating that the court didn't ignore your argument. [00:13:47] Speaker 02: It just didn't go as far as you wanted it to go. [00:13:51] Speaker 05: I don't think that the judge did deal with the fact that there were different. [00:13:56] Speaker 02: But he said he did. [00:13:56] Speaker 05: I understand. [00:13:57] Speaker 05: And there is a case, actually, Lente, which says that a routine statement that you consider the 3553A factors doesn't work. [00:14:08] Speaker 05: You must demonstrate that you have done so. [00:14:10] Speaker 05: And there's nothing in this record where this court says anything about, I really considered this disparity issue. [00:14:18] Speaker 05: I'd like to reserve that. [00:14:20] Speaker 03: He says he considered it, but he needed to say, I really considered it. [00:14:24] Speaker 05: Well, the court has to be convinced that he really considered it. [00:14:40] Speaker 00: OK. [00:14:41] Speaker 00: May it please the court? [00:14:42] Speaker 00: Elliot Anderson for the United States. [00:14:46] Speaker 00: This case turns on three questions. [00:14:48] Speaker 00: First, did the district court use the correct sentencing guideline range? [00:14:51] Speaker 00: Yes, he did. [00:14:52] Speaker 00: Second, did the court listen to a defendant's argument about its sentencing disparity, address it on the merits, and give a reasoned basis for denying the motion for a downward variance? [00:15:03] Speaker 00: Yes, the court did quite extensively. [00:15:05] Speaker 00: Third, did the court, in denying the variance and imposing the sentence it did, exceed the bounds of permissible choice or act in an arbitrary or capricious manner? [00:15:13] Speaker 00: No, the court did not. [00:15:15] Speaker 00: As to the first question, [00:15:17] Speaker 00: I'm not sure how much of a question we still have as to whether the guidelines range was correctly calculated, but answering that question speaks to the other issues in this case. [00:15:27] Speaker 00: 4A1.1 says, as the court noted a moment ago, points are awarded based on the length of the sentence imposed, not whether the crime is a felony or a misdemeanor. [00:15:39] Speaker 00: In three places, the current guidelines speak to this question that appellant is raising. [00:15:44] Speaker 00: This is not a novel question. [00:15:45] Speaker 00: It's been percolating through the courts since California reclassified marijuana offenses in 2014. [00:15:52] Speaker 02: Could I just ask a quick question on something you just said about the length of the sentence under the guideline? [00:16:00] Speaker 02: You cite a number of cases in your brief. [00:16:03] Speaker 02: on page 11, they're all unpublished. [00:16:09] Speaker 02: Is there any question about whether this is a settled or unsettled issue in the circuit? [00:16:16] Speaker 00: The fact that those cases are unpublished, Your Honor, says to me that the issue is not that controversial. [00:16:21] Speaker 00: Those cases were issued. [00:16:23] Speaker 00: We do have circuit court authority as well, speaking on just overall in the guidelines, whether it's under federal statute, whether it's the mandatory minimum under 841, [00:16:33] Speaker 00: the Armed Career Criminal Act, the offense 4B1.1 enhancement. [00:16:40] Speaker 00: We always look at what law did the defendant violate when he committed the crime. [00:16:44] Speaker 00: That's what the Supreme Court requires in McNeil. [00:16:47] Speaker 00: That's what this court held in McGee. [00:16:49] Speaker 00: It would be nonsensical to evaluate a prior crime in light of what the law looks like now. [00:16:55] Speaker 00: So the unpublished cases, Your Honor, are the ones, honestly, that speak [00:16:58] Speaker 00: most directly to this. [00:16:59] Speaker 00: There are more than the ones I cited. [00:17:00] Speaker 00: I didn't want to put too many unpublished cases in my brief. [00:17:03] Speaker 00: But the issue, defendant did not present the court below with one case supporting the idea that a change in a criminal penalty creates an unwarranted sentencing disparity. [00:17:14] Speaker 00: And appellant has not presented one case on appeal for that proposition. [00:17:19] Speaker 00: The legislature, to the contrary, the legislature can adjust the penalty [00:17:24] Speaker 00: for criminal offense, that is its job. [00:17:26] Speaker 00: It makes that line-drawing exercise. [00:17:28] Speaker 00: That doesn't mean that we have to pull everyone out of jail who's been sentenced under either that provision or received points for violating that provision elsewhere and re-sentence them every time a penalty changes. [00:17:41] Speaker 00: The guidelines provide at 4A1.1 in the background comment that whether an offense is a felony or a misdemeanor, that's an unreliable measure of how serious a crime was. [00:17:49] Speaker 00: We're looking at what law did the defendant violate when he did it. [00:17:52] Speaker 00: So that's why we look to the length of the sentence imposed. [00:17:55] Speaker 04: Would it be different if the change legalized the conduct as opposed to reduce the seriousness of the penalty from the felony to a misdemeanor? [00:18:08] Speaker 00: I argue it would not, Your Honor. [00:18:09] Speaker 00: We actually cited the case to that effect in our brief. [00:18:12] Speaker 00: I think it was in the Second Circuit where marijuana possession had been decriminalized completely. [00:18:18] Speaker 00: That didn't change the fact that the defendant committed a felony when he violated the law. [00:18:24] Speaker 00: I want to speak briefly to a point the defendant raised in its reply as to this automatic expungement process in Oklahoma at Title 22, Section 19. [00:18:36] Speaker 00: That expungement mechanism is not even yet in effect. [00:18:39] Speaker 00: That law took effect in July 1st, 2024. [00:18:43] Speaker 00: And at Title 22, Section 18C, the statute provides that the auto expungement mechanism does not kick in until three years after the effective date. [00:18:52] Speaker 00: So the expungement process will not even be operating until 2027. [00:18:56] Speaker 00: And in this case, the defendant committed his crimes, the priors that were concerned with, in 2012 and 2013 and was sentenced in 2023. [00:19:04] Speaker 00: So the expungement statute has no bearing on this case. [00:19:10] Speaker 00: The guidelines contemplate at 4A1.3, comment three, that a defendant with prior marijuana convictions might argue that his criminal history is overrepresented in his score and could ask for a downward departure. [00:19:23] Speaker 00: Here the defendant asked for a downward variance. [00:19:25] Speaker 00: I think the analysis would be largely the same and the district court gave ample reasons for denying the variance. [00:19:33] Speaker 00: So let me speak now to that second procedural error that the appellant is raising. [00:19:38] Speaker 00: Under Rita, the Supreme Court clarified that the district court does not have to provide a Talmudic level of detail when it rules from the bench on a sentencing motion. [00:19:47] Speaker 00: The court just needs to put enough in the record to allow a reviewing court to determine, did they hear the argument? [00:19:54] Speaker 00: Did they consider it? [00:19:55] Speaker 00: Did they have a reasoned basis for ruling on it? [00:19:58] Speaker 00: Here the court did, multiple times. [00:20:01] Speaker 00: The court entertained defendant's argument. [00:20:03] Speaker 00: When ruling on the argument, the court spent about three pages of the transcript ruling on the downward departure and downward variance motions. [00:20:11] Speaker 00: And the court reiterated the argument perfectly. [00:20:13] Speaker 00: The court said, I understand your arguing. [00:20:15] Speaker 00: There's an unwarranted disparity here because of the change in Oklahoma law. [00:20:19] Speaker 00: And then the court gave many reasons for denying the variance. [00:20:24] Speaker 00: Bear in mind, the court allowed the defendant every opportunity [00:20:27] Speaker 00: And the court entertained every argument the defendant wanted to make. [00:20:30] Speaker 00: The court heard argument from counsel. [00:20:33] Speaker 00: The court heard testimony from the defendant's aunt. [00:20:36] Speaker 00: The court heard testimony from the defendant himself. [00:20:38] Speaker 00: And after direct and cross, the court directly questioned the defendant extensively on his history, his activities, his gang involvement. [00:20:47] Speaker 00: The court noted that the defendant had a pattern of illegal reentry followed by drug offenses over and over again. [00:20:54] Speaker 00: And the court was in an ideal position to judge the defendant's credibility, having seen him on the stand and spoke to him face to face. [00:21:02] Speaker 00: The court asked the defendant, how is there a picture of the exact gun you were arrested with on your phone? [00:21:08] Speaker 00: And the defendant had no answer other than to say, I got that phone about a month ago from some guy at a party. [00:21:14] Speaker 00: Not everything on that phone is mine. [00:21:16] Speaker 00: The court asked the defendant, while you were in Mexico, were you involved in gang activity there? [00:21:21] Speaker 00: The defendant's reply was, there are no gangs in Mexico. [00:21:25] Speaker 04: Understood. [00:21:26] Speaker 04: Let me ask you a question about Mr. Lund's argument, however, in connection with what Judge Frizzell, part of what Judge Frizzell explained, and that is he makes the argument to Judge Frizzell, and then Judge Frizzell says, and I'm not quoting it in front of you, but it's one half of another, the guideline range is [00:21:54] Speaker 04: as a floor of 37 months to X. And if I grant the variance, it's X to 37 months. [00:22:04] Speaker 04: So it really doesn't matter. [00:22:05] Speaker 04: The common denominator is 37 months, and that is what you're going to get. [00:22:11] Speaker 04: That is unquestionably incorrect, isn't it? [00:22:15] Speaker 04: Because under the 3553A, we start with the guideline range. [00:22:21] Speaker 04: And to say that I'm going to pick a common denominator, and so it doesn't matter, well, we have when Judge Gorsuch was in our court, we have what the Supreme Court has said, that that is wrong. [00:22:37] Speaker 04: That if the guideline range is wrong, that is the starting point. [00:22:43] Speaker 04: And even if the ultimate sentence falls within [00:22:47] Speaker 04: the applicable guideline range, that doesn't mean that the defendant isn't spending a month more in prison than he otherwise should be. [00:22:57] Speaker 00: I agree, Your Honor. [00:22:58] Speaker 00: In this instance, I don't believe that district court was being cavalier or saying that it didn't matter. [00:23:02] Speaker 04: I don't mean to disperse Judge Frizzell. [00:23:05] Speaker 04: I'm not saying he was being flippant. [00:23:07] Speaker 04: He wasn't. [00:23:08] Speaker 04: But I'm just wondering if he was legally incorrect. [00:23:11] Speaker 00: I believe what the transcript says. [00:23:13] Speaker 00: It could have been phrased differently, but he said, if I calm down what I think would be the appropriate amount on a variance, you're still looking at a maximum of 37 months, right? [00:23:22] Speaker 00: He was saying that in the context of even if I give you a variance, it's probably going to be 37 months. [00:23:28] Speaker 00: He ultimately denied the variance. [00:23:30] Speaker 00: And just to emphasize how seriously Judge Frizzell took this, the docket will reflect this sentencing hearing started at 930. [00:23:38] Speaker 00: At page 47 of the transcript, you see Judge Frizzell apologizing to the other lawyers in the room because this hearing is about to push into lunch. [00:23:46] Speaker 04: Yeah, just to make absolutely clear, the question is in no way intended to suggest. [00:23:52] Speaker 00: I didn't imply that. [00:23:53] Speaker 04: I think you interpreted it, but I just wanted to make sure, Judge Frizzell is an excellent judge. [00:23:58] Speaker 04: I did not mean to besmirch his comment. [00:24:01] Speaker 04: So I just wanted to make sure you understood. [00:24:04] Speaker 00: I understand, Your Honor. [00:24:05] Speaker 00: Given all of that, my interpretation of that comment is not that he's saying it doesn't matter. [00:24:10] Speaker 00: He's going to consider the motion for variance very thoroughly. [00:24:13] Speaker 00: As Judge Matheson noted, he gives the defendant some consideration for it. [00:24:17] Speaker 00: He says, in light of your history, in light of the fact that you would have had only four points on these offenses, except that after you re-entered in March of 2013, you immediately re-offended with methamphetamine, and that got you accelerated on the first one. [00:24:30] Speaker 00: And that seemed to have particular weight for the judge. [00:24:34] Speaker 00: In light of all that, I think that comment isn't saying that it doesn't matter what range you're in. [00:24:38] Speaker 00: That comment is saying the best I can do for you under the range you're in is still within the range that you want, and so 37 months. [00:24:45] Speaker 00: But this goes to appellant's cases, Rosales Morales and Molina Martinez, which all depend on an error in the guidelines calculation. [00:24:54] Speaker 00: And here, there was no error. [00:24:58] Speaker 02: Norris, you're not arguing that these procedural reasonableness points being raised by the appellant are waived. [00:25:11] Speaker 02: Who argued? [00:25:12] Speaker 02: Have you argued that there's a waiver on procedural reasonableness? [00:25:15] Speaker 00: I wouldn't argue waiver, Your Honor. [00:25:16] Speaker 00: I definitely would argue that plain error review is applicable here. [00:25:21] Speaker 00: The defendant did not object to the guidelines calculation. [00:25:24] Speaker 02: Well, OK, forfeiture then. [00:25:25] Speaker 02: Are you saying that the arguments were forfeited? [00:25:29] Speaker 00: Especially given that the second procedural argument was not raised until the reply brief, I think that that's an option here. [00:25:38] Speaker 02: But did you make the forfeiture or waiver arguments in your brief? [00:25:42] Speaker 00: Well, I didn't have an opportunity to address the second procedural argument that only came up in the reply. [00:25:48] Speaker 00: As to the first one, I did argue in my brief that at best that's plain error review. [00:25:53] Speaker 00: All right. [00:25:55] Speaker 04: And you're not arguing, because we have cases that say that if the villain doesn't argue plain error, then that is waived. [00:26:02] Speaker 04: You're not arguing that. [00:26:04] Speaker 00: No, Your Honor. [00:26:05] Speaker 00: I think under any standard, there was nothing wrong with the sentencing procedure below. [00:26:09] Speaker 00: It was incredibly thorough. [00:26:10] Speaker 00: There is no unwarranted disparity here. [00:26:13] Speaker 00: And I'll point the court to a case that's not in my brief. [00:26:16] Speaker 00: Dorsey v. United States at 567 U.S. [00:26:20] Speaker 00: 260. [00:26:22] Speaker 00: Justice Breyer writing for the majority there. [00:26:24] Speaker 00: And it's not exactly on point. [00:26:26] Speaker 00: They're considering the Fair Sentencing Act and, you know, the recalibration of the crack cocaine to powder cocaine ratios. [00:26:32] Speaker 00: But in that opinion, for the majority, Justice Breyer notes, any time the legislature changes a penalty and draws a new line, you're going to have a disparity. [00:26:41] Speaker 00: And then the federal practice in sentencing is whoever comes in front of the court is sentenced under the law at that point in time that applies to them. [00:26:48] Speaker 00: It's not an unwarranted disparity. [00:26:50] Speaker 00: I think that Justice Breyer's comments are inconsistent with the idea that we have to go throughout time and space to bring everyone together and treat offenses the way they are treated in Oklahoma or whatever the most liberal, lenient jurisdiction is at this point in time. [00:27:08] Speaker 00: Basically, what he's arguing for is a one-way ratchet. [00:27:11] Speaker 00: where because some states treat this as a misdemeanor or not illegal at all, defendants who have deliberately violated a felony statute in other states have to be treated as though they didn't. [00:27:23] Speaker 00: There's no disparity between someone who commits a felony in Kansas [00:27:28] Speaker 00: and someone who commits a misdemeanor. [00:27:30] Speaker 00: In California, 3553A6 is looking for similarly situated defendants with similar criminal histories. [00:27:37] Speaker 00: And an Oklahoma defendant from 2013 who committed a felony, his third criminal offense, and an Oklahoma defendant from 2020 who commits a misdemeanor, his third, do not have the same criminal history. [00:27:51] Speaker 02: Can I just ask you, because there's some emphasis in the reply brief on this, [00:27:57] Speaker 02: The 2019 legislation that made the 2017 amendment retroactive, did the district court consider that in terms of the variance? [00:28:10] Speaker 00: I don't believe that was raised to the district court, Your Honor. [00:28:13] Speaker 00: The 2019 legislation didn't make the 2017 amendment purely retroactive. [00:28:18] Speaker 00: It allowed a mechanism for particular defendants to seek commutation of their individual sentences. [00:28:24] Speaker 00: Even in cases where the defendants have done that, and here Mr. Landeros Gonzalez hasn't, even in McGee, before this court, where the defendant had gone back in sought a reclassification, or in Herrera out of the Ninth Circuit, that doesn't make a difference under the guidelines, because the guidelines ask, what law did you break? [00:28:42] Speaker 00: What willingness to commit a crime did you evidence when you broke the law? [00:28:48] Speaker 00: Just in closing, Your Honor, as this court noted [00:28:50] Speaker 00: Verdin Garcia cited in the appellant's reply, when a defendant brings an argument for a downward departure or a variance, they need to bring a non-frivolous argument and more than just, quote, hand-weaving or conclusory statements. [00:29:07] Speaker 00: Here, the argument that was presented to the district court was not supported by any legal authority, any sentencing data, any other information that would support the argument they were asking for. [00:29:18] Speaker 00: It simply noted, this used to be a felony, and now it's a misdemeanor. [00:29:22] Speaker 00: The district court did a more than ample job of responding to that argument, of giving a reason basis for exercising its discretion. [00:29:29] Speaker 00: There was no procedural error here. [00:29:31] Speaker 00: There was no substantive error. [00:29:32] Speaker 00: The sentence is presumptively reasonable. [00:29:34] Speaker 00: We ask this court to affirm. [00:29:36] Speaker 00: Thank you. [00:29:37] Speaker 02: Thank you, Councillor. [00:29:40] Speaker 02: Is there any rebuttal? [00:29:41] Speaker 02: 45 seconds. [00:29:53] Speaker 05: The problem with the sentencing and the explanation that was given by the judge was that there was no direct discussion of whether or not there was a sentencing disparity. [00:30:05] Speaker 05: And that's the reason why you have the procedural error here. [00:30:08] Speaker 05: And the reason that he gives the sentence he does is something that's covered by the guidelines, which is, well, you've committed so many offenses, and you've done this so many times. [00:30:20] Speaker 05: And so what's missing here is the importance of the disparity that exists certainly in Oklahoma, and it appears in all other states throughout the country. [00:30:33] Speaker 02: Thank you, counsel. [00:30:34] Speaker 02: The case will be submitted. [00:30:36] Speaker 02: Council are now excused.