[00:00:22] Speaker 02:
The next case for oral argument is the United States versus Slinkard as a stock at 23-5071.

[00:00:29] Speaker 02:
Counsel.

[00:00:34] Speaker 04:
Good morning, Your Honors.

[00:00:35] Speaker 04:
May it please the Court?

[00:00:36] Speaker 04:
My name is Kathleen Shen and I represent the appellate, Mr. Joshua Slinkard.

[00:00:41] Speaker 04:
It's not disputed here that the District Court clearly erred by finding that Mr. Slinkard used a computer to show

[00:00:47] Speaker 04:
SS pornography, and that it applied the two-level computer use enhancement in error.

[00:00:52] Speaker 04:
The only question is whether the government can meet its burden of proving that this error was harmless.

[00:00:57] Speaker 04:
And in this case, it can't, because the government expressly relied upon the error to argue that a life sentence was appropriate and that no variance should be granted.

[00:01:07] Speaker 04:
And contrary to the government statement in its question presented, there was an expressed variance request.

[00:01:12] Speaker 04:
at the sentencing record, volume 2, 78 to 79.

[00:01:16] Speaker 04:
So I just want to emphasize that this isn't a throwaway comment or reference.

[00:01:21] Speaker 04:
But actually, a significant part of the government's argument against the variance is that the unadjusted total offense level is 48, which, of course, is due to these erroneously added two levels.

[00:01:35] Speaker 04:
Is this sound bothering people?

[00:01:38] Speaker 04:
I'm doing something wrong.

[00:01:40] Speaker 04:
That advocacy directly links the sentence here to the clear error.

[00:01:47] Speaker 04:
And so because of that, because the government considered these two levels important to its argument against the variance, and the district court accepted that argument and denied the variance, it can't meet its burden of showing harmlessness here.

[00:01:59] Speaker 04:
This court can't be confident that the error had no impact on the sentence.

[00:02:03] Speaker 02:
Are there any cases like that where it's been well above 43 and adjusted down on the court

[00:02:10] Speaker 02:
sentences as it does and then it turns out two levels shouldn't have been added and so therefore we remand.

[00:02:18] Speaker 02:
It stays the same guideline calculation.

[00:02:21] Speaker 03:
Yeah, I agree the guideline range remains the same.

[00:02:23] Speaker 02:
And isn't it normally the case that when the guideline range stays the same that's good enough for us?

[00:02:29] Speaker 04:
I agree that it often is the case that there is no prejudice from a guideline error that doesn't affect the guideline range but I think this case is different because

[00:02:39] Speaker 04:
You know, in those cases, and I read a bunch of those cases where you find that there's no prejudice because there's no guideline error in what this court says, for example, in the case of United States v. Serrano, 742 Federal Third 461, is that the argument for the sentence, the 3553A argument, would have been the same regardless

[00:03:00] Speaker 04:
of the error in the guidelines.

[00:03:01] Speaker 04:
But that's not the case here.

[00:03:03] Speaker 04:
This is a case where the government's argument against the variance before the life sentence directly connected that sentence to the error.

[00:03:10] Speaker 04:
And I would also like to emphasize for this court that it's really not unusual for there to be procedural sentencing error that doesn't affect the guidelines, but still results in a remand for re-sentencing.

[00:03:21] Speaker 04:
For example, if there were a TAPIA error and there was an improper consideration, for example, of the need for rehabilitation,

[00:03:28] Speaker 04:
Or if the district court erroneously concluded it couldn't consider an appropriate factor like family circumstances or post-conviction rehabilitation, none of those errors affect the guideline range.

[00:03:44] Speaker 04:
But it's still the case that because there is a connection between the error and the sentence, if we can show that that was part of the sentencing decision, there can still be prejudice warranting re-sentencing.

[00:03:55] Speaker 02:
So is there a case or no?

[00:03:56] Speaker 04:
I'm not aware of a case like that.

[00:04:00] Speaker 04:
But again, I would point this court to all of these cases in which we do remand for procedural sentencing error, regardless of the lack of impact on the guidelines.

[00:04:09] Speaker 04:
And in a way, I don't think this is truly a guidelines case.

[00:04:13] Speaker 04:
Of course, the district court's error, its purely erroneous finding in other circumstances, would have affected the guidelines.

[00:04:20] Speaker 04:
But it's still an error that was injected into the sentencing

[00:04:25] Speaker 04:
by the government through its passionate argument against the barriers.

[00:04:28] Speaker 01:
Counsel, you're focusing on the error being injected by the government's argument, but I'm looking at what the court's findings were for determination of a sentence.

[00:04:38] Speaker 01:
And I don't see where the court, in making its 3553A factor analysis, discussed this two-level enhancement at all, or even hinted at it.

[00:04:47] Speaker 01:
In fact, the court relied upon other facts and history and characteristics of the defendant in making the sentence determination.

[00:04:55] Speaker 01:
So how can we, in assessing here, whether or not a remand is appropriate, why should we be focused more on what the court decided and the findings that were made compared to what the government was arguing?

[00:05:08] Speaker 04:
Your Honor, it's true that the district court didn't explain or didn't refer expressly to the government's arguments in denying them their rights.

[00:05:15] Speaker 04:
It did, however,

[00:05:16] Speaker 04:
it agreed with the government and it ultimately denied Mr. Slinkert's sentencing request.

[00:05:22] Speaker 04:
So I think that supports the idea that this was part of the consideration.

[00:05:26] Speaker 04:
And I would also say that this isn't a case either where the district court expressly disclaimed reliance on the error, for example.

[00:05:36] Speaker 04:
It's not a case where the district court made clear it wasn't affected by the government's arguments.

[00:05:41] Speaker 04:
And even in those cases, for example, in Archuleta, which

[00:05:46] Speaker 04:
is a plain guideline error case, so it's a different situation.

[00:05:49] Speaker 04:
But there, this court reversed for resentencing, even though the district court seemed to say, that one level didn't matter to me.

[00:05:58] Speaker 04:
I would give the same sentence regardless.

[00:06:00] Speaker 04:
This court said, we just don't know that.

[00:06:02] Speaker 04:
We're not sure that that's actually the case.

[00:06:05] Speaker 04:
And so we're going to send it back for resentencing.

[00:06:07] Speaker 04:
And I think that I did get a different sentence on remit, notwithstanding what the district court said.

[00:06:13] Speaker 04:
Ordinarily, under these circumstances, we just can't be sure that this argument didn't affect the district court's sentence.

[00:06:19] Speaker 04:
And I would also like to proceed, just mention the second error.

[00:06:23] Speaker 04:
So the government doesn't really dispute that the district court mischaracterized Mr. Slinkard's criminal history when it described him as somebody with two prior convictions related to the sexual abuse of children.

[00:06:34] Speaker 04:
And that is a statement that's clearly and obviously wrong in two significant ways.

[00:06:39] Speaker 04:
Of course, first,

[00:06:40] Speaker 04:
Mr. Slinkard had no criminal history at the time of the offense.

[00:06:44] Speaker 04:
So he did not have any prior convictions as that term is used at sentencing.

[00:06:49] Speaker 04:
And second, one of those other convictions is for exactly the same conduct.

[00:06:54] Speaker 04:
And so there would be no reason for the district court to mention it as a basis for imposing a life sentence at all.

[00:07:01] Speaker 04:
It's, of course, not aggravating that the state previously convicted him for the exact same conduct due to a quirk of legal history.

[00:07:10] Speaker 04:
And I think this misunderstanding of Mr. Slinkert's history is something that did affect his substantial rights just because it's so aggravating.

[00:07:19] Speaker 04:
Of course, if it were true that Mr. Slinkert had committed this underlying child sex offense after sustaining and being convicted for two prior child sex offenses, that would be very powerful evidence.

[00:07:31] Speaker 02:
But don't we know the district court knew differently?

[00:07:34] Speaker 02:
It was a stray comment that district court calculated the criminal history correctly.

[00:07:39] Speaker 04:
I don't think we know that because, again, I think the plain meaning of this in the context of what the district court is saying is that he's referring to other convictions separate from this offense.

[00:07:55] Speaker 04:
He's referring to prior convictions.

[00:07:57] Speaker 04:
And I think that the way it comes up when he says,

[00:07:59] Speaker 04:
I'm imposing a life sentence.

[00:08:01] Speaker 04:
The district court doesn't provide a very thorough explanation of its decision to impose a life sentence.

[00:08:06] Speaker 04:
It mentions, of course, the offense conduct, which is egregious.

[00:08:09] Speaker 04:
But he also talks about marijuana use in a post-traumatic stress disorder.

[00:08:14] Speaker 04:
And then he says, and this is someone with two prior convictions related to child sex abuse, and in that context,

[00:08:21] Speaker 04:
That statement does a lot of work to explain why Mr. Slinger is someone who should get a life sentence.

[00:08:27] Speaker 04:
It wouldn't make sense to talk about two other convictions unless it were the case that the district court thought that was particularly aggravating.

[00:08:35] Speaker 02:
And of course, it would be... The district court sentenced to the guideline range.

[00:08:40] Speaker 04:
Yes, Your Honor, it did vary.

[00:08:43] Speaker 02:
And we presume that that's reasonable.

[00:08:45] Speaker 04:
Your Honor, I actually wish I had caught this.

[00:08:47] Speaker 04:
That's not a presumption this court makes in the procedural sentencing context.

[00:08:51] Speaker 04:
That is a presumption that applies only when the claim is one of substantive reasonableness, when the claim is that this is a sentence that's just too long.

[00:08:59] Speaker 04:
And that's not the claim here.

[00:09:00] Speaker 04:
Our claim is that this district court made two errors.

[00:09:06] Speaker 02:
And I agree with what you just said.

[00:09:08] Speaker 02:
But going forward to where we are in the proceeding when the district court made that comment, he's determining how many months, right?

[00:09:18] Speaker 02:
And he says life.

[00:09:19] Speaker 04:
Yes.

[00:09:20] Speaker 02:
And he calculates the criminal history correctly, even though he said prior convictions.

[00:09:26] Speaker 02:
That's more than offset by his having calculated and knowing what was prior and what wasn't prior before he imposed the sentence.

[00:09:34] Speaker 04:
I think what you're suggesting is that we can assume that even though what the district court said is inconsistent or just wrong, he must have misspoken.

[00:09:43] Speaker 02:
What I say is let's consider everything the district court said, not just that.

[00:09:48] Speaker 02:
straight comment, but instead really the meat and potatoes of it when he goes to the criminal history and is more precise rather than just lying as he is.

[00:09:59] Speaker 04:
Your Honor, I don't think that's the correct analysis.

[00:10:01] Speaker 04:
I think what this court does is it says this statement is clearly wrong.

[00:10:06] Speaker 04:
And then if there's a question about whether the district court really understood whether this was Mr. Singert's criminal history or not, that actually goes to prejudice.

[00:10:15] Speaker 04:
And for that, I would point this court

[00:10:16] Speaker 04:
to its decision in United States versus Smith, 7th, 55, Federal Appendix 808.

[00:10:21] Speaker 04:
I'm happy to submit this through a 28-J letter.

[00:10:23] Speaker 04:
And there, this court reversed and remanded for resentencing, where in pronouncing the sentence, the district court misstated the sentencing guidelines range.

[00:10:32] Speaker 04:
She said 235 to 240 months instead of 210 to 240 months.

[00:10:37] Speaker 04:
And this court said, you know, that's clearly not the guidelines range.

[00:10:40] Speaker 04:
And we don't know whether the district court just misspoke or whether she actually misunderstood.

[00:10:46] Speaker 04:
And since we don't know what happened, we're sending it back.

[00:10:49] Speaker 04:
And I would submit in this case, particularly because this is such a potentially aggravating misunderstanding of Mr. Singert's criminal history, I think that remand is warranted here as well.

[00:11:02] Speaker 04:
And then finally, I just want to touch on two sort of ideas that I think could be floating around about this case.

[00:11:09] Speaker 04:
First, the government, especially in its brief, seems to say, of course Mr. Slinkert is getting life.

[00:11:14] Speaker 04:
He would never get anything but life.

[00:11:16] Speaker 04:
This is a terrible offense.

[00:11:18] Speaker 04:
There's no point in sending this back.

[00:11:20] Speaker 04:
And of course, it's certainly possible he would get life.

[00:11:22] Speaker 04:
I can't deny that.

[00:11:23] Speaker 04:
This is the kind of case where a life sentence is a possibility, or even likely.

[00:11:28] Speaker 04:
But contrary to what the government says, it's also a real possibility that somebody like Mr. Slinkert

[00:11:34] Speaker 04:
gets the term of years.

[00:11:36] Speaker 04:
This court has already recognized that in Slinkerd 1, where it recognized that Mr. Slinkerd's state court sentence for essentially the same misconduct was 30 years.

[00:11:44] Speaker 04:
Somebody looked at this exact crime and said, he doesn't have to spend the rest of his life in prison.

[00:11:50] Speaker 04:
And common sense and experience tell us that it is, in fact,

[00:11:53] Speaker 04:
not unusual for individuals who plead guilty to aggravated sexual abuse to receive various sentences to a term of years, even when the advisory guideline recommendation is life, which it very often is for these kinds of cases that's supported by the sentencing commission data and just common sense.

[00:12:10] Speaker 04:
Of course, if it were the case that every time the guideline said someone would get life, there would be no reason for someone to plead guilty.

[00:12:17] Speaker 04:
You would always go to trial.

[00:12:19] Speaker 04:
But we know that often people plead guilty and do get a term of years

[00:12:23] Speaker 04:
And I would also just like to point out that Mr. Slinkert is going to be serving a significant additional time, no matter what, just because this federal sentence is being imposed 10 years after he started his state sentence.

[00:12:36] Speaker 04:
So that's also something that could be considered.

[00:12:40] Speaker 04:
I think there's a lot of reasons why a court could give Mr. Slinkert a term of years.

[00:12:47] Speaker 04:
And given these clear and plain errors,

[00:12:51] Speaker 04:
This court can't be confident that that is the same sentence you would get regardless.

[00:12:55] Speaker 04:
And so I therefore respectfully request this court vacate a sentence and remand for re-sentencing.

[00:13:01] Speaker 00:
Thank you.

[00:13:16] Speaker 00:
May it please the court, Thomas Duncan for the United States.

[00:13:20] Speaker 00:
There are two lines of cases that Mr. Slinkard conflates in his brief.

[00:13:26] Speaker 00:
There's one line of cases where there's a sentencing calculation error that affects the guidelines range.

[00:13:32] Speaker 00:
And then another line of cases involving a calculation error that doesn't affect the guidelines range.

[00:13:38] Speaker 00:
And with a calculation error that affects the guidelines range, the government has to point to evidence in the record showing that the court would have imposed the same sentence nonetheless.

[00:13:48] Speaker 00:
That's the line of cases that Mr. Slinkard relies on heavily in his brief.

[00:13:53] Speaker 00:
The problem for Mr. Slinkard is that his case is the second type of error.

[00:13:58] Speaker 00:
an error in calculation that didn't actually affect the guidelines range.

[00:14:03] Speaker 00:
The court calculated the offense level to be 43.

[00:14:06] Speaker 00:
The offense level was 43.

[00:14:08] Speaker 00:
The court calculated the criminal history category to be 2.

[00:14:11] Speaker 00:
The criminal history category was 2.

[00:14:14] Speaker 00:
In that second category of cases, this court has found that those types of errors are harmless.

[00:14:24] Speaker 00:
The only room that Mr. Slinkert has left to grab onto is this idea that the government's advocacy somehow changes that calculation in this case, or changes that calculus.

[00:14:36] Speaker 00:
And the only case that they cite in support of that is Irvine, which is distinguishable readily because here the government was making a point among many about why Mr. Slinker deserved a life sentence, the heinousness of the conduct, what he put the victim through, et cetera.

[00:14:55] Speaker 00:
In Irvine, the evidence that was erroneously admitted and shown to the jury was a lynchpin of the government's case.

[00:15:02] Speaker 00:
The government not only advocated for it, but the government said, we want that piece of evidence to be a roadmap for the jury when they go back and view all the other pieces of evidence.

[00:15:10] Speaker 00:
So this case is not urban.

[00:15:13] Speaker 00:
And the government's points that this was someone who was more dangerous than most defendants with the same guideline range would have been true regardless of whether he had 48 unadjusted points or 46 unadjusted points.

[00:15:28] Speaker 00:
And the government's point that he was especially unrepentant

[00:15:31] Speaker 00:
would have been the same regardless of that two-level enhancement for using a computer.

[00:15:37] Speaker 00:
I also do want to circle back to what Judge Phillips asked about cases where there was a motion for variance pending.

[00:15:45] Speaker 00:
And so we've got a guidelines calculation error that doesn't affect the guideline range, but nevertheless, there's this possibility that maybe the court would have varied.

[00:15:53] Speaker 00:
In addition to the Serato case, which my colleague referenced,

[00:15:57] Speaker 00:
That was a case where there was a variance and actually the court did vary downward from the guidelines range.

[00:16:04] Speaker 00:
And he made the argument on appeal that perhaps the court would have varied down further if the court hadn't made that non-guidelines determinative calculation error.

[00:16:14] Speaker 00:
And that court, that was this court in 2014, said that at best this is pure speculation.

[00:16:23] Speaker 00:
And that's 742 Fed 3rd at page 469.

[00:16:27] Speaker 00:
The other case I would point to is one that we briefed, which is the Faulkner case from the Sixth Circuit.

[00:16:33] Speaker 00:
That was a case where there was an allegation that there was an improper calculation that also wouldn't have affected the guidelines range, which, like in this case, was life.

[00:16:44] Speaker 00:
So Mr. Faulkner would have faced life with the calculation error and without the calculation error.

[00:16:50] Speaker 00:
And Mr. Faulkner moved for a variance.

[00:16:52] Speaker 00:
The court did grant a variance.

[00:16:55] Speaker 00:
the defendant in Serato, Mr. Faulkner said, maybe the court would have granted a larger variance if not for this calculation error.

[00:17:02] Speaker 00:
And the court, like this court in Serato, said, that's pure speculation.

[00:17:07] Speaker 00:
And the reason that the court usually says that is because it's especially true when the error or the asserted error is not relevant to the stated bases for the variance.

[00:17:25] Speaker 00:
And that's true in this case.

[00:17:27] Speaker 00:
The stated basis for the variance had nothing to do with the two-point enhancement under 2A3.1B6B or the fact that Mr. Slinkard used a computer.

[00:17:41] Speaker 00:
The stated purposes for a variance were he's already certain time on his state sentences, his age is 42, and he was 30 at the time of the offenses, and he's got health issues.

[00:17:52] Speaker 00:
And the court considered all of those factors and stated those factors in laying out the 3553A factors in this case.

[00:18:01] Speaker 00:
So it's more than speculative in this case that the court would have sentenced differently if not for this non-guidelines determinative error.

[00:18:12] Speaker 00:
And then just briefly on the criminal history point, the plain error argument,

[00:18:19] Speaker 00:
that Mr. Slinkard makes.

[00:18:21] Speaker 00:
There was no error with regard to the calculation of Mr. Slinkard's criminal history.

[00:18:27] Speaker 00:
The court, and again, I go back to Judge Phillips' comments.

[00:18:32] Speaker 00:
I agree that this was a stray comment.

[00:18:35] Speaker 00:
The court correctly calculated the criminal history category.

[00:18:39] Speaker 00:
And not only that, but when ruling on another objection that Mr. Slinkard had made,

[00:18:46] Speaker 00:
The court differentiated between the Mays County conviction and the Tulsa County conviction, saying, well, you also don't get an offset for that conviction because that conviction is related to the present case.

[00:18:57] Speaker 00:
There's no reason to say it that way unless what you're indicating is that you know that the one you're not talking about is unrelated to the instant case.

[00:19:06] Speaker 00:
So what the court should have said is that in addition to SS, Mr. Slinkard has molested two other children.

[00:19:15] Speaker 00:
not that there were two prior convictions.

[00:19:18] Speaker 00:
And if the court had said in calculating the offense level, I find there are two prior convictions, that would have been an error that would have been guidelines determinative.

[00:19:27] Speaker 00:
Here, it didn't affect the sentence imposed, it didn't affect the guidelines that the court used, and any argument that it would have affected a motion for variance is speculative based on this court's case law and case law from other circuits.

[00:19:43] Speaker 00:
If there are no additional questions, the government would ask this court to affirm.

[00:19:57] Speaker 04:
I just like to make two related points.

[00:20:00] Speaker 04:
First, I think the government is again misstating the record as it did below when it says the district court, or is exaggerating when he says the district court distinguished the Tulsa County from the Mesa County.

[00:20:12] Speaker 04:
priors, the district court did deny that objection.

[00:20:16] Speaker 04:
He never talks about the Tulsa County conviction at all.

[00:20:18] Speaker 04:
He's reading verbatim from the pre-sentence report.

[00:20:21] Speaker 04:
Second, just to return to Serato, which I continue to believe supports my argument about the government's.

[00:20:26] Speaker 04:
In Serato, this court found the error harmless because the factors on which the variants were based remain the same, regardless of whether the importation enhancement was applied.

[00:20:39] Speaker 04:
Here, the government's arguments

[00:20:41] Speaker 04:
against the variance would have changed, but for the error.

[00:20:45] Speaker 04:
The government would not have been able to say, he has 48 levels, therefore he's worse than everyone else.

[00:20:52] Speaker 04:
Some of the arguments would have remained the same, and I understand the government continues to believe that Mr. Slingert is someone who deserves a life sentence, but this court frequently deals with cases of procedural sentencing error where the sentence is based on a combination of proper and improper factors,

[00:21:08] Speaker 04:
and where the guidelines range doesn't change.

[00:21:10] Speaker 04:
And in those circumstances, this court remains for resentencing because it cannot be sure that the improper factor was not part or was not a basis for the sentence.

[00:21:20] Speaker 04:
And for that reason, we'd ask you to vacate and remand for the sentencing.

[00:21:26] Speaker 04:
Thank you.

[00:21:27] Speaker 02:
Very well.

[00:21:27] Speaker 02:
Thank you.

[00:21:27] Speaker 02:
Thank you, counsel, for your arguments.

[00:21:30] Speaker 02:
The case is submitted.

[00:21:31] Speaker 02:
And, counsel?