[00:00:11] Speaker 04:
We have three more cases on our docket.

[00:00:13] Speaker 04:
The fourth is 23-3172, United States versus Ruiz.

[00:00:22] Speaker 04:
In this country, only a small percentage of criminal cases go to trial.

[00:00:30] Speaker 04:
Most end in pleas, a plea of guilty.

[00:00:35] Speaker 04:
And usually those pleas are part of a plea agreement

[00:00:41] Speaker 04:
where the government agrees to drop some charges, maybe agrees to a lesser sentence or something like that.

[00:00:49] Speaker 04:
When there is a plea agreement, the government has to honor its commitments.

[00:00:55] Speaker 04:
And the question in this case is whether the government honored its commitments with respect to a plea agreement in speaking when the defendant was being sentenced

[00:01:10] Speaker 04:
There's also another issue in this case that comes up fairly often in our system, that is, even if there was an error, was the defendant prejudiced by that error?

[00:01:26] Speaker 04:
because if the defendant was not prejudiced by the error, then we overlooked the error.

[00:01:32] Speaker 04:
So we'll be hearing argument, I think, on both issues, whether the prosecutor did comply with the terms of the agreement, and if not, whether the defendant was prejudiced by that.

[00:01:47] Speaker 04:
So Mr. Hansmeier, excuse me.

[00:02:00] Speaker 01:
Judge Hartz, the Mayor of Police of the Court, Dan Hansmeier on behalf of the defendant, Pascual Ruiz.

[00:02:07] Speaker 01:
The prosecutor has a heightened responsibility not to breach a plea agreement.

[00:02:11] Speaker 01:
That heightened responsibility precludes the prosecutor from merely paying lip service to a promise made within a plea agreement.

[00:02:17] Speaker 01:
The prosecutor's statements may not, quote, undermine the prosecutor's promises, end quote.

[00:02:22] Speaker 01:
The prosecutor also may not, quote, inject material reservations about, end quote, any promises made within the agreement.

[00:02:31] Speaker 01:
As relevant here, a prosecutor breaches an agreement to recommend a specific sentence within the guidelines range if the prosecutor makes arguments inconsistent with that recommendation, even if the prosecutor technically recommends the agreed upon sentence, and that's what happened here.

[00:02:48] Speaker 01:
So we're, yep.

[00:02:50] Speaker 02:
Why should we conclude, given what is in this record, it's full of information about your client's criminal history,

[00:02:59] Speaker 02:
And not only that, but the guideline range itself contemplates criminal history, that the district court would not have arrived at this conclusion itself.

[00:03:12] Speaker 02:
And so I'm asking you about the third prong.

[00:03:14] Speaker 01:
Right, so I think we have two answers on the third prong.

[00:03:18] Speaker 01:
The first is that what the district court did and the record created below actually supports our argument.

[00:03:29] Speaker 01:
And the second is that what the district court said below is irrelevant.

[00:03:34] Speaker 01:
So with respect to the first point on the third prong, the key here is the connection between what the prosecutor said, which was sentence him based on his criminal history,

[00:03:51] Speaker 01:
and what the district court did, which was depart upward based on the defendant's criminal history.

[00:03:57] Speaker 01:
So we think that connection in and of itself is why we can satisfy the third prong of claimant review.

[00:04:07] Speaker 01:
And I think it's critical that we just have to show a reasonable probability of a different outcome.

[00:04:13] Speaker 01:
That's not a very difficult burden.

[00:04:16] Speaker 01:
It's less than a preponderance.

[00:04:19] Speaker 04:
So you think the judge

[00:04:20] Speaker 04:
would not have sentenced this harshly if the prosecutor had acted the way you think the prosecutor should have.

[00:04:30] Speaker 01:
We think there's a reasonable probability of that, yes.

[00:04:33] Speaker 03:
The judge had a recitation of very detailed information about this guy's prior history that went way beyond anything the prosecutor said, indicating that the judge had been thinking about criminal history carefully.

[00:04:47] Speaker 01:
So I think the key though is that when you have an agreement between the parties, you know, everyone's there saying 51 months is good.

[00:04:57] Speaker 01:
I think that sets a different tone than when you have one party saying, yeah, 51 months, but do it because he has a terrible criminal history.

[00:05:09] Speaker 01:
I mean, it's just, there's a different vibe there, I think.

[00:05:13] Speaker 03:
I'm just having trouble.

[00:05:14] Speaker 03:
I've got his statement before me.

[00:05:17] Speaker 03:
He says three or four times, we're asking for 51 months.

[00:05:20] Speaker 03:
We agree with 51 months.

[00:05:22] Speaker 03:
51 months is the appropriate amount.

[00:05:27] Speaker 03:
What sentence specifically do you think violated that plea agreement by saying, do more?

[00:05:36] Speaker 01:
So it is sort of that whole paragraph there.

[00:05:41] Speaker 03:
Well, I've got the whole paragraph, five.

[00:05:44] Speaker 03:
five paragraphs actually altogether.

[00:05:47] Speaker 01:
I think maybe the easiest answer is the block quote on page six of our brief.

[00:05:54] Speaker 01:
So what he does twice is he says, I am asking the court to impose that sentence

[00:05:59] Speaker 01:
but I do believe a sentence of 51 months is called for in this case, given the defendant's criminal history.

[00:06:05] Speaker 01:
So he's saying, imposed a bottom of the range sentence because of this guy's criminal history, and then he lists all of these convictions by name, and then he ends with, I believe, your honor, given the nature of his criminal history, a sentence of 51 months is appropriate.

[00:06:26] Speaker 01:
So, I mean, we talk about this in our brief, but this is rhetoric.

[00:06:29] Speaker 01:
This is hypothesis and rhetoric.

[00:06:31] Speaker 03:
The brief says we can defend that because he didn't want a downward departure.

[00:06:37] Speaker 03:
Yeah.

[00:06:37] Speaker 03:
But I don't see in the sentence, in the statements made, don't give a downward departure.

[00:06:45] Speaker 03:
And my question is,

[00:06:48] Speaker 03:
Did the defendant ask for a downward departure?

[00:06:51] Speaker 03:
Was there anything preceding his statements where the defendant had suggested that he might want to ask for a downward departure?

[00:06:58] Speaker 01:
No, absolutely not.

[00:07:00] Speaker 01:
And the prosecutor knew that, and the prosecutor's statements reflect that.

[00:07:04] Speaker 02:
But it was in the case, though, right?

[00:07:05] Speaker 02:
I mean, the PSR said we're not recommending it, but you might want to consider an upward variance.

[00:07:14] Speaker 01:
The upward variance aspect was in the case, is that what you're asking?

[00:07:19] Speaker 02:
Yeah, and when I say in the case, I mean, you didn't ask for it, but it was out there for the district court to pay attention to.

[00:07:27] Speaker 02:
The prosecutor certainly knew about it.

[00:07:30] Speaker 02:
So why isn't it a plausible reading of the statement to say the prosecutor would be thinking, well, this is in the case?

[00:07:36] Speaker 02:
And I'm going to argue in favor of the 51 months and just explain why we think in light of this comprehensive criminal history, 51 months is still appropriate.

[00:07:48] Speaker 01:
So I think I'm a little confused.

[00:07:50] Speaker 01:
A downward variance or departure I don't think was ever in the case.

[00:07:54] Speaker 01:
No, an upward variance.

[00:07:56] Speaker 01:
So if that's the question, yes, the PSR actually said there's maybe some grounds for an upward departure.

[00:08:03] Speaker 01:
So I think that helps me because

[00:08:07] Speaker 01:
It makes no sense for a prosecutor to say don't, I mean what the prosecutor said was don't go down based on his criminal history.

[00:08:16] Speaker 01:
The prosecutor didn't say don't go up.

[00:08:20] Speaker 03:
I mean.

[00:08:25] Speaker 03:
If you accept that, that means don't go below 51.

[00:08:28] Speaker 03:
Don't go above it.

[00:08:28] Speaker 03:
He says 51 is the right amount.

[00:08:31] Speaker 01:
But he's doing it, but he's not really saying that.

[00:08:34] Speaker 01:
I mean, that's the problem with this case.

[00:08:35] Speaker 01:
I mean, we have 30 years of precedent from this court that says you can't implicitly breach a pre-agreement.

[00:08:41] Speaker 03:
The president, at least that I'm familiar with,

[00:08:43] Speaker 03:
We do have a lot of cases and I'm not going to represent, I've read them all again or refresh myself on all of them again.

[00:08:49] Speaker 03:
But most of them, there's much more of a wink and a nod than there is in this case.

[00:08:53] Speaker 03:
This case has less of a, yeah, you could justify a higher amount.

[00:08:58] Speaker 03:
You certainly could justify a higher amount judge, but we recommend this other amount.

[00:09:03] Speaker 03:
I don't see the flagrancy here that we often see when we find a violation.

[00:09:08] Speaker 01:
I mean, I think like we said in our brief, if you're going to say that a prosecutor can do this in this case, it just wasn't that bad.

[00:09:15] Speaker 01:
I mean, you're just laying a roadmap for prosecutors to do this in every case, and you're undermining... What words did he say that you think were wrong?

[00:09:24] Speaker 03:
I mean, how would you have edited his remarks to have avoided the error?

[00:09:28] Speaker 03:
I've read this, and I just don't find anything in here that seems to violate the

[00:09:36] Speaker 03:
requirement of his plea agreement.

[00:09:38] Speaker 03:
So I'd like to have you point out the sentence that you think carries this hidden meaning of dog whistle is it were to go up higher.

[00:09:49] Speaker 01:
Yeah.

[00:09:49] Speaker 01:
So I just read it.

[00:09:51] Speaker 01:
I don't have anything other to read.

[00:09:52] Speaker 01:
It's the given the nature of the defendant's criminal history, that aspect of the statement.

[00:09:57] Speaker 01:
When he says sentence at the low end, given the nature of the defendant's criminal history, that is nonsensical.

[00:10:04] Speaker 01:
No criminal defense attorney would stand up and say, Judge, give my guy a sentence at the low end of the range because he has a terrible criminal history.

[00:10:12] Speaker 02:
But the government isn't the criminal defense attorney.

[00:10:14] Speaker 02:
I mean, the government is supposed to be not an unpersuasive advocate, right?

[00:10:21] Speaker 01:
But this prosecutor in this case signed a plea agreement saying, I will recommend the low end of the range.

[00:10:28] Speaker 01:
This prosecutor in this case did not have to sign that agreement.

[00:10:31] Speaker 01:
He could have said, I don't want to recommend the low age range.

[00:10:34] Speaker 04:
Doesn't the agreement also say that the prosecutor has the right to bring to the court's attention any negative criminal history?

[00:10:42] Speaker 01:
No, so that's paragraph 12.

[00:10:44] Speaker 01:
That's the full disclosure paragraph.

[00:10:46] Speaker 01:
The government does not rely on that paragraph.

[00:10:48] Speaker 01:
It's not in this case.

[00:10:50] Speaker 04:
But it does say that.

[00:10:52] Speaker 01:
It says that, but again, that's not, the government has not said, has not defended the prosecutor's comments under that paragraph.

[00:11:00] Speaker 01:
That same language was in via Vasquez.

[00:11:03] Speaker 01:
It's just that language, you know, you read plea agreements in context as a whole, and if that language were to usurp, you know, the earlier recommendation, it would cause a lot of problems in Kansas and probably elsewhere.

[00:11:19] Speaker 01:
I mean, what we're asking for is a very simple rule.

[00:11:23] Speaker 01:
This court's precedent makes it clear that prosecutors don't have to do things enthusiastically.

[00:11:28] Speaker 01:
There's even a case from this court where the prosecutor actually didn't even make the recommendation.

[00:11:34] Speaker 01:
It was just in the PSR and this court said it was okay.

[00:11:37] Speaker 01:
So this prosecutor literally could have just not said anything and abide by the agreement.

[00:11:43] Speaker 01:
The rule I want is the rule that I think this court has, and that is you cannot, and I quoted this at the beginning, you cannot undermine your promises.

[00:11:56] Speaker 01:
You cannot inject material reservations about the agreement.

[00:12:01] Speaker 01:
That's the rule.

[00:12:02] Speaker 04:
I'm not sure that the prosecutor did say that he or she, I don't remember, had material reservations,

[00:12:15] Speaker 04:
Earlier you were focusing on the fact that there was no possibility, no one was suggesting a sentence below to be agreed.

[00:12:24] Speaker 04:
If there was a hint of that, then this would have been okay?

[00:12:27] Speaker 01:
That's a different case.

[00:12:29] Speaker 01:
That is definitely a different case.

[00:12:30] Speaker 01:
I think it's an open, so there is precedent on that.

[00:12:32] Speaker 01:
We talked about that precedent in our reply brief.

[00:12:35] Speaker 01:
There's cases that sort of, I think you could argue either way.

[00:12:39] Speaker 01:
I'm not here arguing either way on that.

[00:12:42] Speaker 04:
My position is that there is not even, this- You don't want a simple rule that absolutely forbids- No, I don't need that, no.

[00:12:49] Speaker 01:
That could be an open question.

[00:12:49] Speaker 02:
But what do we do about the fact that the PSR suggested an upward variance?

[00:12:54] Speaker 02:
That's the most troubling aspect of the record for me for your position because it's explanatory, right?

[00:13:01] Speaker 02:
So your position is this prosecutor didn't have to say anything and it would all be fine, but he chose to highlight these aspects of recidivism perhaps.

[00:13:10] Speaker 02:
Why can't we read that in the totality of this record as everyone knew the PSR had this, well, look at this criminal history, you might wanna go up.

[00:13:19] Speaker 02:
And the prosecutor is saying, yeah, you probably saw that, but we still think 51 months.

[00:13:24] Speaker 01:
because that's not what the prosecutor said.

[00:13:26] Speaker 01:
The prosecutor said, I think it's a Vivasquez talks about how if there is this suggestion of an upward departure based on one thing and the prosecutor makes that argument,

[00:13:40] Speaker 01:
that is actually a problem, not a solution.

[00:13:46] Speaker 01:
So here, the PSR is saying, you may depart upward based on criminal history, and the prosecutor's standing up saying, look at the criminal history.

[00:13:54] Speaker 01:
I mean, that is the problem with what the prosecutor said.

[00:13:57] Speaker 02:
If the PSR cuts your way on breach, how does it affect the third prong?

[00:14:04] Speaker 01:
So again, I still think the same way.

[00:14:06] Speaker 01:
Because the prosecutor is highlighting the reasons why the court may go above the low end, that is your reasonable probability of prejudice.

[00:14:19] Speaker 04:
That was so obvious.

[00:14:21] Speaker 04:
That's why the PSR had recommended it.

[00:14:25] Speaker 04:
The judge had already spoken about the criminal history, and when the judge

[00:14:33] Speaker 04:
sentence, he highlighted parts of the criminal history well beyond what the prosecutor mentions here.

[00:14:40] Speaker 04:
That's why it's hard to see any prejudice that has shown prejudice.

[00:14:45] Speaker 01:
But what's not obvious is whether he would get 70 months or something lower than 70 months.

[00:14:51] Speaker 01:
I mean an upward departure would encompass a 64 month, a 65 month, a 66 month sentence.

[00:14:57] Speaker 01:
It's just there is a reasonable probability that he would have done better.

[00:15:01] Speaker 01:
I'm running out of time.

[00:15:02] Speaker 01:
I just want to say one thing on prejudice and my other point is that

[00:15:07] Speaker 01:
because the remedy is rescinds in front of a different judge.

[00:15:10] Speaker 01:
I think if you have a plain breach, that goes to a different judge.

[00:15:13] Speaker 01:
So I don't understand why we even care what the district court said under the third prong.

[00:15:18] Speaker 01:
And that's in our brief.

[00:15:19] Speaker 01:
And I don't think the government had anything to say about that.

[00:15:22] Speaker 01:
But I do want to reserve for the remainder of my time.

[00:15:27] Speaker 04:
Thank you.

[00:15:37] Speaker 00:
Good morning, Your Honors.

[00:15:38] Speaker 00:
May it please the Court, Jared Magg, on behalf of the United States.

[00:15:42] Speaker 00:
I do think that the Court can look very closely at the third prong, and I think it really balances on the third prong, and the Court can rule on that alone.

[00:15:55] Speaker 00:
But I want to highlight a little bit more of what Judge Abel, you had addressed, is what the Court was looking at with respect to Mr. Ruiz's

[00:16:05] Speaker 00:
criminal history and I would note if you look at volume 2 at pages 27 and 30, even before Judge Melgren reaches a decision on the sentence, he begins to highlight and make reference to the defendant's criminal history.

[00:16:20] Speaker 00:
So it's not as if he is somehow triggered by the prosecutor's statement about the criminal history.

[00:16:26] Speaker 00:
As we note in our brief, he is quite aware of the significant history in this case.

[00:16:33] Speaker 00:
And so he begins by referencing that almost at the beginning that the defendant's criminal history is at 20, but falls to 18 because they can't count any more than four individual points.

[00:16:49] Speaker 00:
Later on, when he's having the discussion with defense counsel, he again notes

[00:16:54] Speaker 00:
how bad the criminal history is.

[00:16:56] Speaker 00:
So this is even before he reaches the point in time where he makes the final decision on the sentence.

[00:17:03] Speaker 00:
But you couple that with the very first words out of Judge Melgren's mouth when he sentences the defendant.

[00:17:11] Speaker 00:
If you look at page 34,

[00:17:14] Speaker 00:
The defendant has made his statement and the colloquy is completed.

[00:17:20] Speaker 00:
And the very first words is, Mr. Ruiz's criminal history is nothing short of remarkable.

[00:17:25] Speaker 02:
Counsel, what does it mean for the government to be a persuasive advocate for the plea agreement?

[00:17:30] Speaker 00:
Well, the court, the case law, I think is very clear is that the government can't act in a way that is detrimental to the contract that is read.

[00:17:39] Speaker 00:
and act in a way against what both parties have signed on to in the agreement.

[00:17:47] Speaker 00:
The defendant has filed a number of 28-J letters, and I think that is sort of strikes at the question that you're raising is each individual case has its own sort of particular nuances.

[00:18:00] Speaker 00:
In those particular cases that they file in the 28-J letters, you can see what the prosecution has done in a number of those cases.

[00:18:07] Speaker 00:
They've gone well outside of

[00:18:09] Speaker 00:
what the agreement really calls for.

[00:18:12] Speaker 00:
I think in the Mojica case, for example, the government puts in about 250 additional photographs.

[00:18:19] Speaker 02:
Why does it have to be such an egregious example?

[00:18:26] Speaker 02:
There is, what seems to me from this record, a lip service component.

[00:18:30] Speaker 02:
Why shouldn't we be reading the record that way, even though certainly the government didn't put in a bunch of new evidence and so forth?

[00:18:40] Speaker 02:
It could have said nothing.

[00:18:42] Speaker 02:
It could have just said nothing.

[00:18:44] Speaker 02:
But it chose to say something.

[00:18:46] Speaker 02:
And why isn't that just lip service?

[00:18:50] Speaker 00:
It's not lip service because I think you have to look at the entire statement in context.

[00:18:54] Speaker 00:
I know that the defendant wants to take a significant issue with the prosecutor's statement about not going below 51 months.

[00:19:02] Speaker 00:
They seem to suggest that that is a nonsensical position to take.

[00:19:07] Speaker 00:
We're pushing back against that.

[00:19:09] Speaker 00:
The guidelines are advisory.

[00:19:11] Speaker 00:
Obviously, the judge could do what he wished to do and could have gone below 51 months.

[00:19:16] Speaker 00:
But when you look at the prosecutor's statement in its totality, the very last statement is we would ask that the court not go below 51 months.

[00:19:24] Speaker 00:
So there obviously was some concern for the statement to be made.

[00:19:28] Speaker 00:
Again, that I think highlights why the prosecutor had made the statement.

[00:19:32] Speaker 03:
What was the basis for that concern?

[00:19:34] Speaker 03:
Had anybody suggested that they might go below it?

[00:19:39] Speaker 00:
There's nothing in the record.

[00:19:40] Speaker 03:
There was no argument by the defendant to go below.

[00:19:44] Speaker 03:
The judge in his remarks never said

[00:19:46] Speaker 03:
So it seems to me like that simply is just a non-issue in the case.

[00:19:55] Speaker 00:
There is nothing to support the statement.

[00:19:59] Speaker 00:
in the context of there's nothing in the record about a motion being filed or any indication that the court would go below that.

[00:20:08] Speaker 02:
Which is precisely what makes it so strange, because the only thing in the record is a suggestion in the PSR to maybe consider going up.

[00:20:16] Speaker 02:
So you would expect, if the prosecutor was going to say anything, to say the government thinks 51 months is the appropriate sentence, don't go up.

[00:20:23] Speaker 02:
Don't go down.

[00:20:24] Speaker 00:
Understandable.

[00:20:26] Speaker 00:
And certainly the prosecutor makes the statement at the beginning.

[00:20:29] Speaker 00:
do not take my statements to suggest that the court should go above 51 months.

[00:20:34] Speaker 00:
So there's that predicate statement by the prosecutor saying, do not take what I'm about to say in a way that would lead you to go above 51 months.

[00:20:46] Speaker 00:
He finishes it by saying, not going below 51.

[00:20:49] Speaker 00:
There's nothing in the record to show why he

[00:20:54] Speaker 00:
had concerns about going below the 51 months.

[00:20:58] Speaker 00:
The only thing I could draw from that possibly is we know that the defendant had sort of expressed some concerns about the defendant's health.

[00:21:09] Speaker 00:
Certainly he was being asked to go to a medical facility, so there were obviously some issues there, but there wasn't anything directly

[00:21:20] Speaker 00:
placed in the record that anyone was asking for something to go below 51 months.

[00:21:26] Speaker 00:
Nevertheless, the prosecutors felt the need to make the statement in that context.

[00:21:32] Speaker 00:
But the predicate statement alone, I think, is what is important here.

[00:21:35] Speaker 00:
He says, do not take what I'm about to say to suggest I want you to go above 51 months.

[00:21:41] Speaker 00:
It would be different if he said, Judge

[00:21:45] Speaker 00:
You know, we leave it to your discretion, but we'd ask that you concentrate on the criminal history.

[00:21:50] Speaker 00:
Had he said that, I think it's different.

[00:21:51] Speaker 02:
He doesn't say above, right?

[00:21:52] Speaker 02:
He says anything other than.

[00:21:54] Speaker 02:
I mean, maybe it's not.

[00:21:56] Speaker 00:
Yeah, he says, I'm not suggesting in any way that I am asking for a sentence of anything other than 51 months.

[00:22:02] Speaker 00:
So he has that predicate sentence to say, you know, what I'm about to say is do not go above that number.

[00:22:10] Speaker 04:
The whole concern I think you're hearing from members of the panel is, why say this at all?

[00:22:20] Speaker 04:
What's the reason for it?

[00:22:22] Speaker 04:
The more likely reason on this record is that the prosecutor was paying lip service

[00:22:31] Speaker 04:
was paying lip service to the agreement, but was hinting at a harsher sentence.

[00:22:40] Speaker 04:
And if this weren't on plain error review, it might be a very serious problem.

[00:22:53] Speaker 04:
But if in this case,

[00:22:58] Speaker 04:
we would affirm this by saying, well, he was just protecting against a downward departure, downward variance, then as the opposing counsel said, that would be a roadmap every single time you could make this statement.

[00:23:18] Speaker 00:
I agree that there's not a record here to support exactly what was in the prosecutor's mind as to why he said don't go below the 51 months.

[00:23:26] Speaker 00:
All we have is the direct statement itself.

[00:23:29] Speaker 00:
But as we note in our brief, if there was this insidious reason to try to get the judge to go above the guidelines or any sentence, they certainly had reason to do that if they were going to act in a way that this court has seen in other cases where the prosecutor goes way beyond what is necessary.

[00:23:52] Speaker 00:
to sort of get the judge to act in a way that is contrary to what the parties are asking.

[00:24:00] Speaker 00:
This is such a very short statement on his part saying, you know, we understand that the criminal history is enough to support 51 months.

[00:24:09] Speaker 04:
It's not an egregious example.

[00:24:12] Speaker 04:
It's just a

[00:24:16] Speaker 04:
unnecessary, there's a better word than unnecessary example during this and that's what's troublesome and if this is actually a concern maybe the prosecutor needs in the future to be explicit saying we want to make sure that there's no, that you don't go below that so we note the seriousness that's mentioned in the... Right and I think to some degree that's a little bit academic because

[00:24:45] Speaker 00:
I think even if you dispense with the idea that there's air and any concession that there's air, this still balances on the third prong.

[00:24:54] Speaker 00:
And again, at the end of the day, nothing that the prosecutor said here triggered the judge into the decision.

[00:25:03] Speaker 00:
that was made.

[00:25:05] Speaker 02:
Can you make your third prong argument specifically under the standard?

[00:25:09] Speaker 02:
I mean, the standard is reasonable probability.

[00:25:11] Speaker 02:
And that means of a different outcome, right?

[00:25:14] Speaker 02:
And so it doesn't take much.

[00:25:17] Speaker 02:
So how should we be thinking about that on this record?

[00:25:26] Speaker 00:
Is it sufficient to undermine the confidence in the outcome?

[00:25:29] Speaker 00:
I think based upon two things.

[00:25:31] Speaker 00:
One, the judge's statements.

[00:25:33] Speaker 00:
prior to him rendering a decision and sort of forecasting his serious concerns about the criminal history.

[00:25:44] Speaker 00:
And then his opening statement into the sentencing phase or the sentencing portion about how remarkable his history was demonstrates how concerned Judge Mulgren was with his background.

[00:26:01] Speaker 00:
And I think as Judge Bell had stated earlier, Judge Mulgren goes into far greater detail about the criminal history of Mr. Ruiz in referencing the fact that his mother felt more comfortable when he's in prison.

[00:26:16] Speaker 00:
So he gets into some really significant detail about the fact that he'd spent the better part of the last 15 years in prison.

[00:26:27] Speaker 00:
Far beyond what the prosecutor had intimated at was

[00:26:31] Speaker 00:
really just the global history and how bad the defendant's history was, whereas Judge Melgren gets into very specific details.

[00:26:38] Speaker 00:
So it's very clear that the judge had given great thought to this in looking forward.

[00:26:45] Speaker 00:
So can this court feel confident that, but for the prosecutor making these sort of global statements about the criminal history, he wouldn't have, he just simply wouldn't.

[00:26:59] Speaker 00:
Well, I think it's sufficient to undermine the confidence in the outcome.

[00:27:02] Speaker 02:
It's a reasonable probability of a different outcome, right?

[00:27:05] Speaker 02:
Reasonable probability.

[00:27:09] Speaker 00:
Is there a chance that Judge Milgram would have sentenced within the guidelines, the government says no.

[00:27:13] Speaker 02:
Would he have sentenced him lower by a month?

[00:27:17] Speaker 02:
I mean, if we get to the third prong, breaches in the case, and we're trying to assess what that did to the calculus, and how can we say it did nothing?

[00:27:30] Speaker 00:
I think because the statements alone were not so significant in the way that triggered Judge Malgren to somehow reassess how he was going to sentence the defendant.

[00:27:43] Speaker 02:
So is it the government's position that the third prong, we are interested in the egregiousness of the breach?

[00:27:49] Speaker 00:
Well, I think it has to be.

[00:27:51] Speaker 00:
I think it has to look at the depths at which the government acted in a way that, if the court finds that there's air, of course.

[00:28:01] Speaker 00:
that how the government acted in a way to essentially breach the contract in a way that, as we said, led the court into making a decision.

[00:28:13] Speaker 00:
And I think this record is very clear.

[00:28:15] Speaker 00:
This court, well in advance, knew that the defendant's criminal history was significant enough that he was not going to sentence him to 51 months.

[00:28:26] Speaker 00:
In a way, how do you prove a negative?

[00:28:29] Speaker 00:
How do you prove that he wouldn't have given him 69 or 68 or anything between 51 and 70?

[00:28:34] Speaker 00:
I think if you look at how Judge Melgren ruled, he did not hesitate.

[00:28:40] Speaker 00:
He didn't equivocate in any way.

[00:28:42] Speaker 00:
He was very specific about the criminal history.

[00:28:45] Speaker 00:
He was very specific about the sentence that he wanted to impose at 70 months.

[00:28:50] Speaker 00:
So I think it was very clear that he had had it in his head that he was going to give this sentence.

[00:28:56] Speaker 00:
at the end of the day.

[00:28:57] Speaker 00:
So when you're talking about sufficient undermining the confidence in the outcome, I don't think there's anything in the record that undermines the confidence in the outcome of how Judge Mulgur reached his decision.

[00:29:11] Speaker 00:
Again, as I think Judge Hart or Judge Bell had said, this record is very clear.

[00:29:15] Speaker 00:
There's no question what we're talking about.

[00:29:16] Speaker 00:
This isn't some sort of amorphous or questionable issue about how bad his history was.

[00:29:23] Speaker 00:
We all knew that this is what was driving this.

[00:29:26] Speaker 00:
But the fact that Judge Melbourne had gone into such significant detail about his history, I think is really what drives that as to whether or not there's confidence in the outcome.

[00:29:39] Speaker 02:
Do you think that the government had a responsibility here in light of what was in the PSR to argue against the suggestion for an upward variance?

[00:29:51] Speaker 00:
I guess if I understand your question,

[00:29:59] Speaker 00:
I guess to some degree, I think the prosecutor did.

[00:30:01] Speaker 00:
He said, do not go above 51 months.

[00:30:04] Speaker 00:
51 months is, I want to be responsive to your question.

[00:30:07] Speaker 00:
I guess I'm not completely understanding.

[00:30:09] Speaker 02:
I'm just trying to, I think what this case raises, irrespective of the disposition here, is what the government's obligation is to not be an unpersuasive advocate for the plea agreement.

[00:30:21] Speaker 02:
And it's incredibly consequential.

[00:30:23] Speaker 02:
And so the question that I'm trying to grapple with is, what is the scope of that responsibility and how the government

[00:30:29] Speaker 02:
actualizes it.

[00:30:30] Speaker 02:
And in this case, we have a PSR that doesn't affirmatively recommend an upward departure or variance, but says, you might want to think about this.

[00:30:38] Speaker 02:
In light of this, given the government's promise in the contract, what was the appropriate response for the government to take in saying 51 months?

[00:30:49] Speaker 00:
So I see I'm out of time if I could answer.

[00:30:51] Speaker 00:
So I think that to directly answer your question is no, the government would not be in a position to have to vehemently argue that the court could not depart.

[00:30:59] Speaker 00:
The court has absolute every right to depart upwards or downwards.

[00:31:03] Speaker 00:
The court could have done what it wanted under the circumstances.

[00:31:07] Speaker 00:
In essence, I think, you know, what the defense is saying is it's going to lay a roadmap

[00:31:13] Speaker 00:
We would argue in some way it's going to curb the government's ability to almost have to stand silent in these instances because of the fear of saying anything one way or the other.

[00:31:24] Speaker 04:
Thank you.

[00:31:28] Speaker 04:
Mr. Hansmeier, you have a minute and a half.

[00:31:32] Speaker 01:
Thanks.

[00:31:33] Speaker 01:
Four points.

[00:31:34] Speaker 01:
Just real quick on that.

[00:31:35] Speaker 01:
Again, the prosecutor didn't have to sign this plea agreement.

[00:31:38] Speaker 01:
Simple as that.

[00:31:39] Speaker 01:
Second point, the facts of this case fall firmly within this court's precedent saying that this type of conduct is not okay.

[00:31:47] Speaker 01:
1987, here's your precedent.

[00:31:49] Speaker 01:
1987, Greenwood.

[00:31:50] Speaker 01:
1996, Hawley.

[00:31:51] Speaker 01:
Judge Ebell, you wrote that.

[00:31:53] Speaker 01:
1998, Brey.

[00:31:53] Speaker 01:
2007, Katusha.

[00:31:57] Speaker 01:
Judge Harts, you wrote that.

[00:31:58] Speaker 01:
2008, Villavasquez.

[00:32:00] Speaker 01:
Judge Harts, you wrote that.

[00:32:01] Speaker 01:
Those cases are implicit breach cases.

[00:32:03] Speaker 01:
This case falls firmly in that line of precedent.

[00:32:05] Speaker 01:
Third point, the district court statements prior to the prosecutor's statements.

[00:32:10] Speaker 01:
If you read that, all the district court is doing is identifying the guidelines range, the criminal history calculation.

[00:32:17] Speaker 01:
He's doing the rule 32 thing that happens in every sentencing.

[00:32:21] Speaker 01:
It's not the same thing that happened in Lopez.

[00:32:23] Speaker 01:
Fourth point, on this idea that this isn't egregious enough to qualify as prejudicial.

[00:32:30] Speaker 01:
Let me get, this is my point, I hope you understand this, that the prosecutor talked about criminal history.

[00:32:36] Speaker 01:
The district court went up because of criminal history.

[00:32:39] Speaker 01:
The prosecutor talked about the offense conduct and then the district court.

[00:32:43] Speaker 04:
Showing or even suggesting that the district court was impressed by what the prosecutor said regarding criminal history.

[00:32:51] Speaker 04:
Did he, gee, given what Mr. So-and-so said, I really don't think I can agree with this.

[00:32:59] Speaker 01:
I mean, he's saying the same things.

[00:33:02] Speaker 04:
I mean, if you're asking if he said prosecutor... Everything the judge says suggests an independent review of this criminal history and a decision to vary upward as a result.

[00:33:20] Speaker 01:
And that's fine.

[00:33:21] Speaker 01:
But the question is whether there is a reasonable probability that he wouldn't have gone to 70 months if the prosecutor had not preached the plea agreement.

[00:33:29] Speaker 01:
That's all I need to show.

[00:33:31] Speaker 01:
And I think I can absolutely show it because of the connection between the prosecutor's statement and the reason for the departure.

[00:33:40] Speaker 01:
It's as simple as that.

[00:33:41] Speaker 01:
Thank you.

[00:33:42] Speaker 01:
Thanks.

[00:33:43] Speaker 04:
Thank you, counsel.

[00:33:44] Speaker 04:
Case is submitted.

[00:33:45] Speaker 04:
Counselor excused.

[00:33:48] Speaker 04:
Our next case is 23-1.