[00:00:02] Speaker 02:
Ms.

[00:00:03] Speaker 02:
Johnson, I think you're for the next case also, so stick around.

[00:00:19] Speaker 02:
I'm going to take 23-21-22, U.S.

[00:00:22] Speaker 02:
versus Pontias Gutierrez.

[00:00:25] Speaker 02:
Ms.

[00:00:25] Speaker 02:
Johnson.

[00:00:26] Speaker 04:
May it please the court?

[00:00:27] Speaker 04:
Still J.K.

[00:00:27] Speaker 04:
Theodosia-Johnson, but now representing Mr. Matias Gutierrez.

[00:00:31] Speaker 04:
The judge from the beginning indicated that a high end guideline sentence was going to be unacceptable.

[00:00:37] Speaker 04:
The only way she would accept such a sentence was if there was a problem with the case that would bar prosecution, such as derivative citizenship claim or a problem with the stop.

[00:00:47] Speaker 04:
The court rejected the agreement because she felt that the high end was too lenient in regards to, excuse me, because of his alleged

[00:01:00] Speaker 04:
Because of this prior conviction of attempted criminal sexual assault of a child, the PSR never treated the allegations as facts.

[00:01:07] Speaker 04:
But the court did.

[00:01:08] Speaker 02:
What do you mean it didn't treat it as a fact?

[00:01:10] Speaker 02:
It reported that in an interview, a child had said that she was sexually molested on four occasions and actually penetrated on the fourth occasion.

[00:01:33] Speaker 02:
The defense counsel did not object to anything in the PSR, so don't we assume that the child, in fact, told, said this at the interview, and isn't that sufficiently reliable to the district court to accept that?

[00:01:51] Speaker 02:
It was the allegations, and then he... Well, the allegation was a first-person statement by the victim.

[00:02:00] Speaker 04:
Related to an unknown number of hearsay statements, and this court has said that in PSRs, you can't just rely on police reports, and we don't even know if this came from a police report.

[00:02:10] Speaker 02:
We're not just relying on police reports.

[00:02:14] Speaker 02:
We're relying on... There was no challenge by the defense counsel to the statement in the PSR

[00:02:20] Speaker 02:
that the child, when interviewed, said these things.

[00:02:24] Speaker 02:
Why can't the judge then be violent?

[00:02:26] Speaker 02:
If the defense attorney was saying, that's not valid, that's not what happened, then that objection is preserved.

[00:02:38] Speaker 02:
And perhaps the government would have some other evidence of what the child said.

[00:02:44] Speaker 04:
Well, this is a strange procedural posture, right?

[00:02:47] Speaker 04:
Because neither the government nor the defendant

[00:02:51] Speaker 04:
thought anything of this allegation in the criminal history category until the court brought it up.

[00:02:59] Speaker 02:
And so there was no reason to object prior to that because it just wasn't... And then after the court brought it up, did the defense counsel say, well, that's unreliable statement?

[00:03:08] Speaker 04:
He did not say that, but he did say that he tried to find more information.

[00:03:12] Speaker 04:
But it wasn't his burden at that point to disprove something that the government wasn't... It's the government's burden to prove it.

[00:03:19] Speaker 02:
But we have consistently said it may be in the rules that if a statement in the PSR is unobjected to, the judge can rely on it.

[00:03:30] Speaker 04:
Yes, but mostly those are in regards to the offense at issue.

[00:03:35] Speaker 04:
It's not for allegations underlying a criminal history category.

[00:03:38] Speaker 04:
Why do you say that?

[00:03:39] Speaker 04:
because I did not find any cases except for Dugan, which was in 2012, where any one relied on the allegations underlying a previous conviction.

[00:03:49] Speaker 04:
And in Dugan, the probation department used it to suggest that the defendant go to have sexual offense things on supervised release.

[00:04:05] Speaker 04:
And treatment.

[00:04:05] Speaker 04:
That was BOP.

[00:04:07] Speaker 04:
You have no effect on BOP.

[00:04:09] Speaker 04:
but it was the supervised release conditions.

[00:04:11] Speaker 04:
And it wasn't ultimately decided on that.

[00:04:13] Speaker 04:
The footnote three goes into great detail about why the underlying allegations are unreliable and that you can't simply assume that, the truth of them.

[00:04:26] Speaker 04:
And it's the same thing here, right?

[00:04:30] Speaker 04:
It's not, no one, except here, no one was relying on it for anyone until the court brought it up.

[00:04:36] Speaker 04:
And we don't know, it's just allegations.

[00:04:39] Speaker 01:
The defendant also got up and said they were false accusations.

[00:04:45] Speaker 01:
That really sets the stage for the need for an objection because you have basically a conflict between the defendant's version of the charges and the PSR's version.

[00:04:59] Speaker 04:
Yes, he objected to the allegations.

[00:05:01] Speaker 04:
What he pointed out was that his conviction was actually for attempted sexual assault of a child.

[00:05:07] Speaker 01:
He said he did not assault the defendant.

[00:05:09] Speaker 01:
Which, if you're convicted of attempt... He said she was lying, the victim was lying.

[00:05:18] Speaker 04:
We don't know any of the underlying facts, right?

[00:05:20] Speaker 04:
All we know is that Nebraska amended the charge to attempted sexual assault of a child.

[00:05:26] Speaker 04:
We don't know why.

[00:05:27] Speaker 04:
And we know that that's what Mr. Matias Gutierrez pled to.

[00:05:32] Speaker 04:
The only thing a prior conviction can tell us is that it met the elements of that, the offense met the elements of the attempted sexual assault here.

[00:05:40] Speaker 04:
Not that it met the elements of the criminal sexual assault itself.

[00:05:44] Speaker 01:
If I agree with that part of your argument, could the district court still have varied upward to this sentence based on her conclusion that

[00:06:01] Speaker 01:
an attempt that a sexual assault was a serious offense and whether the victim's statements were true as to a rape, there was the attempt and couldn't the variant just be justified on that ground alone?

[00:06:21] Speaker 04:
If you look at his offense level, and remember his offense level took into the

[00:06:25] Speaker 04:
and took into account the previous conviction, raising it by 10 points.

[00:06:30] Speaker 04:
If you look at the sentencing table, this sentence is literally off the charts.

[00:06:35] Speaker 04:
So it's unreasonable to double this guideline sentence based solely on this criminal history category, especially when you're relying on the allegations of it rather than the conviction itself.

[00:06:47] Speaker 01:
No, I think she could rely on the conviction itself and vary upward.

[00:06:52] Speaker 01:
I mean, her conclusion was that

[00:06:54] Speaker 01:
the defendant was still a threat to the community's safety.

[00:07:00] Speaker 01:
Correct.

[00:07:00] Speaker 04:
She could vary upwards, but I think, again, we come back to the guidelines, and the guidelines say that you need to go incrementally when the criminal history is underrepresented.

[00:07:11] Speaker 04:
And she didn't go incrementally.

[00:07:12] Speaker 04:
She jumped.

[00:07:14] Speaker 03:
Well, that's for a departure, right?

[00:07:15] Speaker 04:
It is for departures, but the Supreme Court has said at this point you can look at departures for the reasons under departures for the same reasons under variance.

[00:07:25] Speaker 04:
And the greater the variance, the greater the need for a compelling explanation.

[00:07:30] Speaker 04:
And it's simply not a compelling explanation, because even if you gave him the full, I don't know, it's off the charts.

[00:07:39] Speaker 04:
It's just so much higher than

[00:07:41] Speaker 04:
than what the guidelines contemplate.

[00:07:44] Speaker 04:
And the guidelines contemplate that for similar conduct with similar histories, you get a similar sentence.

[00:07:51] Speaker 04:
It's designed to avoid these unwarranted disparities.

[00:07:54] Speaker 04:
And it's simply based on a similar history category.

[00:07:57] Speaker 04:
It's unreasonable.

[00:07:59] Speaker 03:
Can I ask you, it seems like you're very effectively making two arguments that are a little different, I think.

[00:08:07] Speaker 03:
Procedural reasonableness, the judge

[00:08:09] Speaker 03:
improperly relied on paragraph 22 and thought that it was a conviction for the actual sexual assault rather than attempt.

[00:08:22] Speaker 03:
And then you're making a separate argument that it was substantively unreasonable because you just went too high.

[00:08:27] Speaker 03:
But on the former, on the procedural reasonableness, does it matter that the judge sometimes did refer to these as allegations?

[00:08:36] Speaker 03:
The government points that out and you point out, well, sometimes you refer to it as if it was a completed act.

[00:08:44] Speaker 03:
Doesn't that render it ambiguous?

[00:08:47] Speaker 03:
And if it is ambiguous, we are at plain error, right?

[00:08:55] Speaker 04:
Yes, we're in plain error.

[00:08:56] Speaker 03:
And so if it is ambiguous, how can we say it was an obvious error

[00:09:02] Speaker 03:
for the judge sometimes to insinuate that she was relying on this as a completed act as opposed to allegations because of the ambiguity.

[00:09:10] Speaker 04:
I don't think it is ambiguous.

[00:09:11] Speaker 04:
She admitted those allegations just once.

[00:09:14] Speaker 04:
And she explicitly said it was the actual criminal sexual penetration five times.

[00:09:20] Speaker 04:
And I think that indicates an ambiguous reliance on the fact that he actually committed

[00:09:27] Speaker 04:
for homosexual assault of a child, which is not what his conviction shows.

[00:09:30] Speaker 04:
And we simply don't know.

[00:09:31] Speaker 04:
She decided 10 odd years later, without knowing anything about the case, that the niece was telling the truth absolutely.

[00:09:39] Speaker 04:
And we don't know any of the underlying facts about it.

[00:09:42] Speaker 04:
And I hate to say it, but we can't always believe that the child is telling the truth about all things.

[00:09:51] Speaker 04:
Like she could be mistaken that it was her uncle.

[00:09:54] Speaker 04:
Her father wanted the uncle out of the house.

[00:09:56] Speaker 04:
There's all sorts of things we just don't know, and that's why we have to rely on what the condition itself was rather than the underlying allegations.

[00:10:08] Speaker 04:
And to conclude, a sentencing court can't

[00:10:13] Speaker 04:
give the guidelines so little deference that it essentially is giving the guidelines no weight at all.

[00:10:19] Speaker 04:
And that's what happened here.

[00:10:20] Speaker 04:
She decided from the beginning that a high-end guideline sentence wasn't appropriate.

[00:10:24] Speaker 04:
And so in essence, she's jettisoned the guidelines and decided to give this man 60 months.

[00:10:31] Speaker 04:
Oh, is that the rest of her time?

[00:10:34] Speaker 02:
Thank you, counsel.

[00:10:43] Speaker 00:
Morning, Your Honors.

[00:10:43] Speaker 00:
Tiffany Walters for the United States.

[00:10:46] Speaker 03:
You might want to lower the... Sorry.

[00:10:48] Speaker 00:
Is that better?

[00:10:49] Speaker 03:
Sure.

[00:10:50] Speaker 00:
A little shorter.

[00:10:52] Speaker 00:
I'd like to jump straight into the discussion about the objections or the lack of a dispute to the facts in the PSR.

[00:11:00] Speaker 00:
Council had indicated that the objections are required for the fact of conviction, but if we look to Rule 32, the district court is entitled to rely on to accept any undisputed portion of the previous sentence report as a finding of fact.

[00:11:14] Speaker 00:
And that's not cabin to specifically the offense of conviction, that includes all the facts in the PSR.

[00:11:20] Speaker 00:
And that makes a lot of sense, given that some defendants may have a lengthy criminal history, and to say that the government has to come into court with information on however many convictions from however many states, when there's no dispute as to any of those convictions, it makes a lot of sense that that's the rule, that the defendant has to come forward with some objection to

[00:11:40] Speaker 00:
The truth or the accuracy of those allegations triggered the district court's fact-finding obligation.

[00:11:45] Speaker 02:
The PSR doesn't say that the defendant committed the offense.

[00:11:50] Speaker 02:
What it says is the victim in an interview said these things.

[00:11:56] Speaker 02:
So then the question is, is that reliable, sufficiently reliable for the district court?

[00:12:02] Speaker 02:
Assuming the truth of the PSR that this is what the child told the interviewer, then the question is, is that sufficiently reliable to consider a sentencing?

[00:12:14] Speaker 02:
Is that the proper analogy?

[00:12:16] Speaker 00:
I think so.

[00:12:16] Speaker 00:
Although in this case, the defendant didn't trigger this reliability concern because he never even raised concerns regarding the reliability of the evidence in district court.

[00:12:25] Speaker 00:
But if we do look to the allegations, we have a situation where the defendant was charged with sexual assault.

[00:12:32] Speaker 00:
He pleaded guilty to attempted sexual assaults based on these allegations.

[00:12:36] Speaker 00:
And we don't have anything that would suggest that those allegations aren't untrue or unreliable.

[00:12:41] Speaker 00:
And the fact that he pled guilty based on those allegations may not be a concession to every single thing that the victim said, but it certainly shows that there's some truth there.

[00:12:51] Speaker 00:
There's sufficient to be a factual basis for the plea.

[00:12:54] Speaker 02:
Wasn't the reliability challenged when the defendant denied doing anything?

[00:12:59] Speaker 00:
So as an initial matter in this court, and Smith has said that the district court doesn't have to consider pro se, pro se, protestations of innocence absent in objection by counsel.

[00:13:10] Speaker 00:
And I think here it's also important to look at the context of how the claim of falsity came about to understand the district court's approach to this.

[00:13:20] Speaker 00:
So we have the first sentencing hearing at which defense counsel says there's no objections to the PSR.

[00:13:26] Speaker 00:
And the defendant does eventually say these allegations are false.

[00:13:30] Speaker 00:
And the district court says, well, I'm intending to reject this plea agreement.

[00:13:32] Speaker 00:
Do you want a continuance?

[00:13:34] Speaker 00:
And you could present other information on the conviction.

[00:13:37] Speaker 00:
almost inviting defense counsel to raise an objection at the next hearing if there was any basis to challenge the reliability or the accuracy of that information in the PSR.

[00:13:47] Speaker 00:
And at the next hearing, they come back and again, the defense counsel goes on the record saying there's no objections to the information in the PSR.

[00:13:56] Speaker 00:
And defendant is taking a different tact at the second hearing.

[00:13:59] Speaker 00:
So he doesn't come into that hearing again saying these allegations are false.

[00:14:02] Speaker 00:
He comes in saying, I'm ashamed, I'm repentant, I'm sorry.

[00:14:07] Speaker 00:
And that's the approach he takes at the second hearing until the district court questions him about, how do I know you're not a danger to the community in light of this?

[00:14:16] Speaker 00:
What did you learn in classes during your incarceration that would alleviate my concerns as to your danger to the community?

[00:14:22] Speaker 00:
And defendant is repeatedly unresponsive over discussing it in terms of women as opposed to children.

[00:14:27] Speaker 00:
And the district court then confronts him

[00:14:29] Speaker 00:
with the substance of the allegations and said, well, if you're not attracted to children, why did you rape your niece?

[00:14:39] Speaker 00:
And at that point, he comes back and denies again the allegations.

[00:14:43] Speaker 00:
So I think at the point that the district court asked that question, the court is entitled to rely on the PSR for its truth and without any dispute to that PSR.

[00:14:54] Speaker 01:
And then- But the PSR statement was based

[00:14:59] Speaker 01:
not on interviews of the victim, but interviews of a school counselor and a police officer.

[00:15:05] Speaker 01:
So the probation officer didn't even track down the victim and obtain a statement from her.

[00:15:14] Speaker 00:
Correct.

[00:15:14] Speaker 00:
The probation officer didn't obtain a statement from her, but it does report statements made by the victim in a forensic interview.

[00:15:20] Speaker 00:
Now, we don't know if those were taken from interview notes or a police report, but it does appear to be statements directly attributable to the victim.

[00:15:31] Speaker 00:
Turning to the question of we're on plain error review, and admittedly the district court did occasionally refer to the charge as a sexual assault charge versus an attempted sexual assault charge, but it referred to an equivalent number of times as attempted sexual assault, and the fact that the district court occasionally mis-speaks.

[00:15:48] Speaker 00:
at best demonstrates ambiguity in the record.

[00:15:51] Speaker 00:
And when we look to when the district court actually stated its reasons for imposing the sentence, the court very carefully went through the facts as reported in the PSR.

[00:16:01] Speaker 00:
It referred to the fact that he was charged with sexual assault, but actually pled guilty to attempted sexual assault, and again refers to the niece's allegations of sexual penetration.

[00:16:12] Speaker 00:
So it's clear that the district court understood

[00:16:14] Speaker 00:
the factual context of what the PSR was stating, that we have an initial charge and a plea to a lesser charge, and that these are based on these allegations.

[00:16:23] Speaker 00:
And absent an objection, the court is entitled to rely on that.

[00:16:27] Speaker 00:
And certainly, as Judge Shemkovic mentioned, the plea to attempted sexual penetration is

[00:16:35] Speaker 00:
more than sufficient to justify the district court's concerns regarding the danger he presents to children and its concerns regarding his return to the United States less than a year after he was released on parole for these charges.

[00:16:55] Speaker 00:
Does the court have any questions on the district court's participation in the plea negotiations or a substantive reasonableness?

[00:17:04] Speaker 00:
Apparently not.

[00:17:06] Speaker 00:
Well, if there's no further questions on the reliability issue, then the United States would ask that the court would affirm.

[00:17:14] Speaker 00:
Thank you.

[00:17:25] Speaker 04:
So to be clear, the PSR related them as allegations from the beginning.

[00:17:35] Speaker 04:
Defense counsel tried to find more information, which was flipping the burden onto defense counsel to disprove something that wasn't even presented as a fact.

[00:17:43] Speaker 04:
It was presented as an allegation.

[00:17:45] Speaker 04:
And there is fundamentally a need, regardless of objection, for the sentencing factors to be reliable.

[00:17:54] Speaker 04:
And using the allegations is simply not reliable.

[00:17:59] Speaker 04:
I know that the government says that she acknowledges those allegations.

[00:18:03] Speaker 04:
She acknowledges those allegations.

[00:18:05] Speaker 04:
once and explicitly referred to it repeatedly as if he had committed the underlying act.

[00:18:10] Speaker 04:
The only thing we know is that he met the offense characteristics of attempted sexual assault, not sexual assault.

[00:18:18] Speaker 02:
And do you disagree that that would be enough to justify the court's concern about the defendant's danger to the community?

[00:18:29] Speaker 04:
I think the conviction itself could raise that question.

[00:18:33] Speaker 04:
But I don't think it's enough to bury as significantly as she did.

[00:18:36] Speaker 02:
That's it.