[00:00:01] Speaker 02:
The next case this morning is 23-2145.

[00:00:08] Speaker 02:
My apologies to the defendant if I butcher his name, United States v. Villella, and counsel for the appellant if you'd make your appearance and proceed.

[00:00:25] Speaker 01:
Good morning.

[00:00:26] Speaker 01:
May I please the court?

[00:00:27] Speaker 01:
My name is Ramon Soto, representing the appellant, Vicente Villella.

[00:00:32] Speaker 01:
This case arises from the District Court's revocation of Mr. Villela's supervised release and its imposition of a 36-month consecutive sentence in two criminal cases.

[00:00:46] Speaker 01:
We raised three arguments.

[00:00:48] Speaker 01:
The District Court plainly erred by applying sentencing enhancements under Section 3553A2A, the retribution factor.

[00:00:58] Speaker 01:
The second argument is that the district court abused its discretion by failing to justify the upward variance.

[00:01:06] Speaker 01:
And three, the district court abused its discretion by failing to notify defense counsel of the upward variance, which constitutes procedural error.

[00:01:18] Speaker 04:
Go ahead.

[00:01:19] Speaker 04:
Starting first with your plain error argument with regard

[00:01:26] Speaker 04:
to your first claim, we jump right to the third prong, don't we?

[00:01:31] Speaker 04:
Because the government has conceded that we have error and that it's plain.

[00:01:37] Speaker 01:
That's correct, Your Honor.

[00:01:37] Speaker 01:
The government has conceded that issue.

[00:01:39] Speaker 01:
And so the argument that the government raises is that Mr. Villela's substantial rights have not been violated.

[00:01:45] Speaker 04:
Right.

[00:01:46] Speaker 04:
And we have a situation where Mr. DeHala's behavior on supervised release historically

[00:01:55] Speaker 04:
has not been good.

[00:01:58] Speaker 04:
Would you concede that?

[00:01:59] Speaker 04:
I think you did concede that.

[00:01:59] Speaker 01:
Yes, Your Honor.

[00:02:00] Speaker 01:
And I think we concede those facts.

[00:02:04] Speaker 01:
And I think it bolsters the issue of Mr. Villela's rights being violated.

[00:02:11] Speaker 01:
And that is because this record relies on the retribution factor due to Mr. Villela's history and failure to comply with his supervised release,

[00:02:25] Speaker 01:
and continue to allegedly commit these crimes.

[00:02:29] Speaker 03:
I don't follow the question of the prejudice.

[00:02:33] Speaker 03:
I mean, when you read what the trial court did in this, you can almost see the smoke coming out of her ears.

[00:02:42] Speaker 01:
Exactly, exactly.

[00:02:43] Speaker 03:
I'm not following your prejudice argument.

[00:02:47] Speaker 03:
That's your burden and I'm not following it yet.

[00:02:51] Speaker 01:
Yes, so what the section 35

[00:02:55] Speaker 01:
3583E says is that the court cannot rely on section 3553A2A, the retribution factor.

[00:03:02] Speaker 01:
And so here where the court plainly erred and violated Mr. Villalas' rights is because it said, I have considered all the factors.

[00:03:12] Speaker 01:
Again and again, she said that.

[00:03:14] Speaker 01:
And she stated, I've made myself clear.

[00:03:17] Speaker 01:
I consider all the factors.

[00:03:19] Speaker 01:
which means that she has considered the retribution factor.

[00:03:22] Speaker 02:
Why isn't this just like Booker, where this is a formulaic reference to the retribution factor and otherwise the court applied the appropriate factors?

[00:03:36] Speaker 02:
It seems to me this is a copycat of Booker.

[00:03:38] Speaker 02:
I don't see why there was any sort of harm here or reliance for that matter.

[00:03:44] Speaker 01:
Yeah, so that's where we distinguish Booker, Calgary, and Penn.

[00:03:48] Speaker 01:
So what we say is, in those cases, the district court said that I'm not relying on the retribution factor, or it said I'm only relying on the factors that are clearly stated in 3583E.

[00:03:59] Speaker 01:
Here, we don't have that.

[00:04:02] Speaker 01:
Here, the district court judge said, I am relying on all the factors.

[00:04:07] Speaker 01:
And when counsel at the level below said, well, can we ask for clarification, the court said, I've made myself clear.

[00:04:17] Speaker 01:
I've considered all the factors, including 3553A2A.

[00:04:21] Speaker 01:
And so that's where the error has been committed, and that is where Mr. Villela's rights have been violated.

[00:04:28] Speaker 02:
It did not specifically say 2A, right?

[00:04:31] Speaker 02:
It said it is general language about considering all the factors.

[00:04:34] Speaker 02:
It didn't mention, well, I mean, if you're talking about this passage where it said all the factors A1 through seven, is that what you're talking about?

[00:04:42] Speaker 01:
Yes, yes, Your Honor, that's correct.

[00:04:43] Speaker 01:
That's exactly what I'm referring to.

[00:04:46] Speaker 01:
And that includes A2A.

[00:04:47] Speaker 01:
Yes.

[00:04:47] Speaker 01:
Yes.

[00:04:49] Speaker 04:
But to some extent, the court is allowed to consider history and characteristics of the defendant, right?

[00:04:57] Speaker 01:
That's correct.

[00:04:58] Speaker 01:
The court can do that.

[00:04:59] Speaker 04:
So my question, I mean, the court does say respect for the law.

[00:05:05] Speaker 04:
And there have to be consequences, which you could categorize as retribution.

[00:05:12] Speaker 04:
But there is also, it seems to me, an overlap of what it means to look at the history and characteristics of the defendant, where you have a defendant who has, time and again, not done very well on supervised release.

[00:05:29] Speaker 04:
The court can look at that, right?

[00:05:31] Speaker 01:
That's correct, Your Honor.

[00:05:32] Speaker 01:
And again, that's where the distinction is, is that other district courts have said,

[00:05:39] Speaker 01:
but I know I can't rely on the retribution factor or I know that I can only rely on these factors.

[00:05:44] Speaker 01:
Here we don't have that and I don't mean to sound like a broken record but that's the problem here is that the district court to say I am considering all the factors and doesn't make an acknowledgement that she cannot consider the retribution.

[00:05:57] Speaker 04:
And that's why we have plain errors but that doesn't answer the question is if in the absence of that

[00:06:06] Speaker 04:
the district court, whether there's a reasonable possibility the district court would have imposed a lesser sentence if it hadn't considered the retribution.

[00:06:17] Speaker 01:
Right.

[00:06:17] Speaker 01:
And there, what the standard is saying is there's a reasonable probability that she wouldn't have given the sentence that she did.

[00:06:27] Speaker 01:
What we're saying is that here, the record reflects

[00:06:34] Speaker 01:
that she took into consideration the retribution factor because of all the characteristics, all the things that have gone wrong, his probation violations, his criminal history.

[00:06:45] Speaker 01:
And so what is happening is that the district court doesn't make an acknowledgement that she cannot consider the retribution factor.

[00:06:55] Speaker 02:
I understood, but let me play out this for you.

[00:06:59] Speaker 02:
If you have a situation in which the court

[00:07:02] Speaker 02:
says, as it did, that references the retribution factor.

[00:07:10] Speaker 02:
If the same facts that would support the other permissible considerations of 3553A are implicated here, the same facts that could also have played into the retribution factor

[00:07:28] Speaker 02:
then why would there be a reasonable probability of a lesser sentence?

[00:07:33] Speaker 02:
And specifically, given the defendant's track record on supervised release, things like lack of commitment to rehabilitation, his accepting responsibility for his actions, all of these things that do play into whether there's been a breach of trust by a supervisee, even if they also

[00:07:57] Speaker 02:
could implicate the retribution factor.

[00:08:00] Speaker 02:
Why would, you know, why does that lead us to a reasonable probability of a lesser sentence?

[00:08:06] Speaker 01:
Yes, and I think what the factors are telling district courts to do is to acknowledge that you can't, you know, punish people or retribute against them.

[00:08:19] Speaker 01:
And so once you have that in your mind, then it is very likely that you won't do an upper variance of, you know,

[00:08:27] Speaker 01:
to 36 months.

[00:08:28] Speaker 02:
Well, as a matter of law, I get that point, but what I'm trying to understand is, and help me with the response on this, is if the facts, the underlying facts here, do you accept the fact that they implicate, that they correspond to permissible factors under the, I mean, under 3553A?

[00:08:51] Speaker 01:
Yes, Your Honor, and it's, but again,

[00:08:55] Speaker 01:
Yes, Your Honor, we agree with that.

[00:08:58] Speaker 01:
The issue here, and it's a clear inference within Booker, Cordray, and Penn.

[00:09:07] Speaker 01:
As long as the district court acknowledges that it did not consider the retribution factor, then that's fine.

[00:09:13] Speaker 02:
But see, that goes to the question of whether we know there's error.

[00:09:16] Speaker 02:
We know the court shouldn't have mentioned it, shouldn't have said that it's at play in its analysis.

[00:09:22] Speaker 02:
But if fact A, B, C, D,

[00:09:26] Speaker 02:
would be prime territory for the court to exercise retribution against the defendant.

[00:09:33] Speaker 02:
But ABCD also correspond and map onto permissible sentencing factors.

[00:09:41] Speaker 02:
How can you get a reasonable probability that actually all the court did was rely on A in sentencing the defendant?

[00:09:49] Speaker 02:
I mean, that's what you would need to have as an analysis, right?

[00:09:57] Speaker 01:
Not necessarily.

[00:10:00] Speaker 01:
So what is going on here is that if there's a reasonable probability that the court wouldn't have sentenced Mr. Villela the way it did, then it is better to acknowledge that this court erred and Mr. Villela's rights were violated because of what is shown in the record that there is an upward variance.

[00:10:25] Speaker 03:
Well, it didn't stop you right there

[00:10:26] Speaker 03:
In my reading of this record, and I'm going back and you look at Booker, it says, and I'm quoting, an error seriously affects the defendant's substantial rights when the defendant demonstrates that there is a reasonable probability that but for the error claimed, the result of the proceedings would have been different.

[00:10:49] Speaker 03:
Now the way I read what the district court did to your client is not going to change in a hundred years.

[00:10:56] Speaker 03:
I don't see where you've convinced me that there's going to be a change in what the district court was saying and all that she said in regards to this matter.

[00:11:07] Speaker 01:
Yes, Your Honor.

[00:11:07] Speaker 01:
And actually, I remember now that the record does say, you know, that this court just says maybe later on down the line, we'll consider if you can enter the real program, the reentry through integrated opportunities program.

[00:11:22] Speaker 01:
Maybe down the line, you know, I'm paraphrasing here, but she does acknowledge that.

[00:11:26] Speaker 01:
to acknowledge that maybe once you've completed a bit of your sentence, maybe you can reconsider and see if you enter the real program.

[00:11:32] Speaker 01:
So here, the court acknowledges in the record that it could have been different.

[00:11:37] Speaker 01:
So you're saying we're to the point where we're down the line.

[00:11:42] Speaker 02:
Yeah.

[00:11:42] Speaker 02:
Yes, Your Honor.

[00:11:43] Speaker 02:
And what could have been different so dramatically that the court would have given them the real program to begin with?

[00:11:50] Speaker 01:
Is that what you're saying?

[00:11:52] Speaker 01:
That's what the record reflects is that if the court

[00:11:55] Speaker 01:
Here, considering the standard that the reasonable probability that the census would have been different is shown in the record by her saying, maybe down the line, you could have entered the Rio program.

[00:12:07] Speaker 04:
She also says, I don't want to waste a spot in that program by giving it to you, because you just don't do very well on supervised release.

[00:12:20] Speaker 01:
And I see I have three minutes left, and I would like to reserve at least two minutes for a rebuttal.

[00:12:25] Speaker 01:
But what is shown is that, I think the record definitely shows that the census could have been different if she was made aware that the retribution factor was not something that she could have considered.

[00:12:42] Speaker 01:
And the district court, by relying on all the factors, decided not to allow him to enter the Rio program.

[00:12:51] Speaker 01:
There's a reasonable probability that he could have entered the real program had she acknowledged that she couldn't rely on 35-53-828.

[00:12:59] Speaker 01:
I have 15 seconds left.

[00:13:03] Speaker 01:
If there are any other questions, I would like to reserve the remaining two minutes for rebuttal.

[00:13:07] Speaker 02:
You can reserve your time if there aren't any more questions.

[00:13:10] Speaker 01:
Thank you.

[00:13:31] Speaker 00:
Good morning, your honors.

[00:13:32] Speaker 00:
May it please the court.

[00:13:34] Speaker 00:
My name is Amel Keeney, representing the United States.

[00:13:38] Speaker 00:
And I'd like to address first the argument that Mr. Soto made about the district court not expressing, expressly stating it was aware that it could not apply the prohibited factor.

[00:13:51] Speaker 00:
And he argued, also argued that very vigorously in his reply brief.

[00:13:55] Speaker 00:
It's true that district court did not expressly state that.

[00:13:59] Speaker 00:
But if you look at the district court was informed about the proper factors it could look at.

[00:14:07] Speaker 00:
And that's in the government sentencing memorandum.

[00:14:10] Speaker 00:
The government specifically lists the statutory sections of 3553A that are relevant at a revocation proceeding.

[00:14:20] Speaker 00:
And you can find that at volume one of the supplemental appendix at 52.

[00:14:26] Speaker 00:
And then

[00:14:28] Speaker 00:
Page 52?

[00:14:30] Speaker 00:
52.

[00:14:31] Speaker 00:
Yes, Your Honor.

[00:14:33] Speaker 00:
And that's the volume of the supplemental appendix that we filed, the first volume of that.

[00:14:38] Speaker 04:
But you can see that given what the court actually said, that the court indicated that it included retribution as one of the factors it relied upon, thus being error that was plain.

[00:14:53] Speaker 00:
It's error for it to mention that as a factor in revocation proceeding

[00:14:57] Speaker 00:
But I'd also like to point out that where it explicitly mentioned that factor at page 79, it's talking about the decision about whether to allow him to defend Mr. Villela to enter the Rio program.

[00:15:16] Speaker 00:
So at that point, it's not yet saying, and this is the sentence I'm going to impose.

[00:15:22] Speaker 00:
So I did not understand Mr. Villela in his briefing to be arguing

[00:15:26] Speaker 00:
for another chance to persuade the court and or the Rio program.

[00:15:30] Speaker 04:
The court later talks about there have to be consequences and respect for the law and other things that we typically have associated with retribution.

[00:15:41] Speaker 00:
Well, the promotion of respect for the law, well, it only mentioned it that one time specifically.

[00:15:47] Speaker 00:
But it does mention consequences, things like that.

[00:15:51] Speaker 00:
You're correct.

[00:15:52] Speaker 00:
It mentions a number of other factors that

[00:15:55] Speaker 00:
you could argue are relevant to promotion of respect for the law or retribution.

[00:16:01] Speaker 04:
Let me ask you what we do with courtery.

[00:16:07] Speaker 04:
There we said basically the court rattled off three things it relied on, one of which was impermissible.

[00:16:15] Speaker 04:
And we said there's no way for us to know what the court would have done in the absence of relying on the impermissible factor, so that's enough.

[00:16:26] Speaker 04:
for us to vacate and remand for re-sentencing.

[00:16:31] Speaker 04:
Is that what we need to do here under that decision?

[00:16:34] Speaker 00:
No, ma'am.

[00:16:35] Speaker 00:
I would distinguish courtery in the same way that this court distinguished it in Booker and in Kratz.

[00:16:41] Speaker 00:
So in the courtery, the improper factor mentioned was rehabilitation.

[00:16:48] Speaker 00:
And there the district court said, I have to give you a sentence of at least 56 months

[00:16:55] Speaker 00:
in order for you to receive rehabilitation services when you're incarcerated.

[00:17:01] Speaker 00:
That's what she told the defendant.

[00:17:03] Speaker 00:
So there what this court said in quarterly is they said, what this court said in quarterly was that the district court here specifically tied the prohibited factor into the amount of time that the court, to which the court sentenced the defendant.

[00:17:20] Speaker 00:
And therefore that's a reason we don't know what the court would have done without that.

[00:17:25] Speaker 00:
Here we don't have anything like that.

[00:17:27] Speaker 00:
Going back to the factors that you asked me about, Judge McHugh, which are relevant to, possibly relevant to retribution.

[00:17:38] Speaker 00:
They're also relevant to a number of the other proper considerations that a court may consider under 3553A.

[00:17:47] Speaker 00:
And what this court said in Booker is, when it's talking about the third prong of plain error,

[00:17:54] Speaker 00:
I think this court made that point then and said, look, yes, the court was talking about some things and the defendant is arguing that they were retributive in tone, but they are the sorts of things that court may discuss when discussing the 3553A factors that are relevant.

[00:18:10] Speaker 02:
And that's what I want to play out for a second.

[00:18:13] Speaker 02:
Some of those factors, in fact, at least appear to arguably implicate permissible sentencing factors.

[00:18:21] Speaker 02:
And at least I even think I understood your opposing counsel to agree with that.

[00:18:26] Speaker 02:
Well, if you have a situation where the court says in its sort of statement that, yes, I can consider also the prohibited factor, but then also in its analysis identifies factors that would implicate permissible factors,

[00:18:48] Speaker 02:
I guess what I'm getting at is the reasonable probability standard and how it wraps around such a situation.

[00:18:56] Speaker 02:
Wouldn't the defendant, since it is his burden, have to do something that shows us that the balance was tilted on the prohibited factor?

[00:19:07] Speaker 02:
For example, in the Kodri case that you alluded to, the notion of wrapping around the sentence given.

[00:19:15] Speaker 02:
So if you have an equipoise, a situation where here are the factors, those factors could apply to the prohibited factor, or apply to a number of permissible factors, that's where we are.

[00:19:29] Speaker 02:
How do we get to reasonable probability that the sentence would have been lesser in such a situation?

[00:19:37] Speaker 00:
I think what the court did in Booker, and didn't explicitly say this, but when it's analyzing the third prompt,

[00:19:44] Speaker 00:
It's acknowledging, yes, the court mentioned the improper factor, but I think that what the court does is it looks at, is there really any possibility, likelihood, that is our confidence undermined that the district court would reach the same result if it had not mentioned that one other factor?

[00:20:06] Speaker 00:
And I don't know how to explain it other than that.

[00:20:08] Speaker 00:
I think that if you have the quarterly situation,

[00:20:11] Speaker 00:
then that is a situation where the defendant has carried his burden.

[00:20:15] Speaker 02:
I'm sorry, go ahead, Judge McHugh.

[00:20:18] Speaker 04:
In Booker, there were a couple of differences.

[00:20:21] Speaker 04:
One is that the court had earlier stated that it understood it couldn't consider the impermissible factor.

[00:20:29] Speaker 04:
And then it goes through a lengthy explanation of all the permissible factors and just makes a single mention of the impermissible.

[00:20:40] Speaker 04:
So looking at

[00:20:42] Speaker 04:
the totality of the analysis that the district court provided, I think the Booker Court was in a good position to say the court knew it couldn't consider that and there's enough here to suggest it didn't give it any weight.

[00:20:57] Speaker 04:
We don't quite have that here.

[00:20:59] Speaker 04:
We don't ever have the court acknowledging it can't consider retribution.

[00:21:04] Speaker 04:
And in fact, we have the court referring to things associated with retribution.

[00:21:11] Speaker 00:
Right, I acknowledge that, that the district court didn't say, I can't acknowledge that.

[00:21:18] Speaker 00:
All I can, the most I can say is the district court was informed of it.

[00:21:22] Speaker 00:
But what else I can say is that if you look at pages 78 and 79, and it's on the top of page 79 of the defense appendix is what I'm referring to.

[00:21:33] Speaker 00:
That's where the district court explicitly mentions the prohibited factor.

[00:21:38] Speaker 00:
That's when the district court is discussing

[00:21:40] Speaker 00:
am I going to allow you to go into the RIA program?

[00:21:43] Speaker 00:
At the end of page 79, the district court then says, okay, I'm not allowing you to go, I'm not holding this in abeyance, now I'm going to sentencing.

[00:21:51] Speaker 00:
And in that discussion, the district court mentions, at least, she makes another passing reference to all the 3553A factors, but then she's only talking about factors that are

[00:22:04] Speaker 02:
permissible factors.

[00:22:06] Speaker 02:
And I'll try again to try to get an answer to this question.

[00:22:10] Speaker 02:
It's probably my failing that I didn't.

[00:22:13] Speaker 02:
But I guess what I'm trying to understand is, yes, the court goes on to talk about permissible factors or facts that implicate permissible factors.

[00:22:24] Speaker 02:
Well, some of those facts also could implicate retribution.

[00:22:29] Speaker 02:
And so I guess what I'm saying is, if you have a record which shows facts that could implicate either, who wins under plain error on the effect on substantial rights in that situation?

[00:22:45] Speaker 02:
What needs to be shown by the defendant to say, well, you know, the court actually didn't use those factors in a permissible way, those facts.

[00:22:55] Speaker 02:
didn't use them in a permissible way.

[00:22:57] Speaker 02:
It used them for the impermissible purpose.

[00:23:00] Speaker 02:
If there is a jump ball in that situation where it's not clear who wins.

[00:23:06] Speaker 00:
If there's a jump ball, I think the government wins because it's the defendant's burden to make it not a jump ball.

[00:23:16] Speaker 00:
Let me ask you this.

[00:23:17] Speaker 00:
Yes, sir.

[00:23:18] Speaker 03:
Were you trial counsel below?

[00:23:20] Speaker 00:
I was not, Your Honor.

[00:23:21] Speaker 03:
Well, we don't usually shoot the messenger then from that standpoint, because it seems to me that from the government standpoint, where this issue comes up, and it is a very important issue, somebody needs to step forward and tell the court, wait a minute, we've got a problem.

[00:23:37] Speaker 03:
It's kind of like putting the pace back into the two.

[00:23:41] Speaker 03:
Once you say you rely on that factor, it becomes in plain error if something else doesn't happen under our, as I read our case law.

[00:23:51] Speaker 03:
Booker may or may not save you, but I'm kind of where Judge Holmes is.

[00:23:56] Speaker 03:
If it comes out both ways, and you can read what the trial court said here, and you can read who's the burden on, and you're claiming, okay, if it comes out a jump ball, then you automatically win.

[00:24:11] Speaker 03:
And I'm not convinced of that yet, that you automatically win.

[00:24:20] Speaker 03:
How do you defend against his burden?

[00:24:23] Speaker 03:
Because he's put it forward very simply and very plain.

[00:24:26] Speaker 00:
Right.

[00:24:26] Speaker 00:
I would say that still under the acknowledging that the district court did not specifically acknowledge that she was not able to consider this factor.

[00:24:37] Speaker 00:
I would still rely on the extent and the number of violations and their quality.

[00:24:45] Speaker 00:
And it wasn't just, I think what really disturbed the district court here was not simply

[00:24:49] Speaker 00:
failure to comply with these conditions.

[00:24:53] Speaker 00:
There's a lot of defendants they may have, and this is what the government pointed out too, that some defendants have issues which make it more difficult for them to comply.

[00:25:01] Speaker 00:
They have addiction and poverty or they may not have access to adequate transportation and all kinds of things.

[00:25:10] Speaker 00:
But here you had a defendant who was telling his probation officer, get the marshals, I'm not complying.

[00:25:17] Speaker 00:
I'm not going to do this.

[00:25:18] Speaker 00:
I'd rather be in prison and get them to do this.

[00:25:20] Speaker 02:
But he apologized later, didn't he?

[00:25:22] Speaker 00:
He apologized once, yeah.

[00:25:24] Speaker 00:
But this was a lengthy, yeah, he apologized on one occasion.

[00:25:28] Speaker 02:
That's true.

[00:25:33] Speaker 02:
Let me understand this.

[00:25:34] Speaker 02:
What role does the sentencing memo play in this?

[00:25:38] Speaker 02:
I mean, in most instances, I don't call that having being a factor that

[00:25:45] Speaker 02:
has any sort of cogent weight in this situation.

[00:25:48] Speaker 02:
The fact that the court read in your sentencing memo that it can't use those factors.

[00:25:54] Speaker 02:
Well, we wouldn't be here.

[00:25:55] Speaker 02:
You wouldn't have conceded one and two if the court, one way or the other, articulated the factors that you told the court that it couldn't consider.

[00:26:03] Speaker 02:
So why should that lead us to believe that the court wouldn't also continue to stumble and actually rely on it in a way that was significant

[00:26:14] Speaker 02:
in imposing the sentence?

[00:26:16] Speaker 00:
Well, I think here the district court mentioned the prohibited factor in explaining why it was denying him entry into the Rio program, not specifically in setting the amount of the sentence itself.

[00:26:30] Speaker 02:
Well, let's back up.

[00:26:31] Speaker 02:
My question is, what weight as a matter of law do we give to the fact that you had given the court a sentencing memorandum that said, don't do X, Y, and Z, when the minute the court walks into

[00:26:43] Speaker 02:
the courtroom, it does X, Y, and Z, at least in terms of uttering it.

[00:26:49] Speaker 02:
I mean, what weight does that memo have then?

[00:26:52] Speaker 02:
When we are, you have conceded, it was clear or obvious error.

[00:26:56] Speaker 02:
So the court obviously blew by the memo, at least far enough to utter the wrong word.

[00:27:04] Speaker 02:
So I mean, what does the memo get us?

[00:27:06] Speaker 00:
It probably doesn't get me very much, to tell you the truth.

[00:27:09] Speaker 00:
The district court must have forgotten about it.

[00:27:12] Speaker 00:
I don't think the district court would intentionally just blow by it, and I don't think that's what you were saying.

[00:27:16] Speaker 02:
No, I'm not implying that.

[00:27:18] Speaker 00:
District courts are very busy and probably just forgot.

[00:27:22] Speaker 04:
You keep saying that the court only discussed these factors that might be seen as retribution factors at 78 and 79, but I'm going through where I went through and found things, and I see it on page 63, page 80, page 81.

[00:27:41] Speaker 04:
You may have a more narrow definition of what goes to retribution than I do, but when the court is talking about the appalling track record and the history with the sheriffs and law enforcement, I think says law enforcement, that sounds to me like retribution.

[00:28:04] Speaker 04:
As the chief points out, it could also be other permissible factors

[00:28:10] Speaker 04:
but it falls under retribution too.

[00:28:13] Speaker 00:
I think that's a lack of clarity on my part here today.

[00:28:17] Speaker 00:
What I meant when I said she only, may I answer your question?

[00:28:21] Speaker 00:
Yes, of course.

[00:28:23] Speaker 00:
Is that she only specifically mentions the prohibited factor itself once.

[00:28:29] Speaker 04:
She only says retribution once.

[00:28:30] Speaker 00:
She only says to make sure that there is promotion of respect for the law once.

[00:28:35] Speaker 00:
Now, I agree that some of those other factors could also be relevant

[00:28:39] Speaker 00:
the other facts and considerations she raises could be relevant both to retribution and to the proper factors.

[00:28:46] Speaker 00:
Jump ball in other words.

[00:28:47] Speaker 00:
That's right.

[00:28:49] Speaker 00:
I think so.

[00:28:51] Speaker 00:
Thank you.

[00:28:52] Speaker 00:
Thank you very much.

[00:29:07] Speaker 01:
And I just want to point out exactly what Judge McHugh pointed out in appendix page 663.

[00:29:14] Speaker 01:
The probation officer states to the court, if you allow him into the program, he will be accepted.

[00:29:20] Speaker 01:
And then the court goes on to say, well, I'm not very inclined to allow you to do this.

[00:29:25] Speaker 01:
You have a really marked history and blatant respect for not only law enforcement, but for probation and the rules of this court.

[00:29:32] Speaker 01:
The district court doesn't just say retribution in passing.

[00:29:36] Speaker 01:
It's actually reflected in the record here in page 63, just as Jesper Hugh pointed out.

[00:29:41] Speaker 02:
Well, the whole point of your third argument of surprise is that there is a distinction between this whole conversation about the Rio program and sentencing.

[00:29:51] Speaker 02:
So that distinction holds true here, too, when the court is talking about these things in connection with whether it's going to give you the Rio program and then shifts into sentencing.

[00:30:01] Speaker 02:
So why doesn't that same line of demarcation apply that you were alleging caused the need for notice?

[00:30:09] Speaker 02:
Here, these comments you're talking about now, they were when you got the real program or not got the real program.

[00:30:15] Speaker 01:
Correct.

[00:30:15] Speaker 01:
And so what the third argument says is it's about unforeseen prices, right?

[00:30:21] Speaker 01:
We should give counsel on the defendants time to prepare for an upward variance.

[00:30:30] Speaker 01:
Since there's a substantial likelihood that an upper variance is going to put someone in prison for a very long time, then the counsel should get the opportunity to address those.

[00:30:39] Speaker 02:
And I think my point was implicit in that argument was the notion that there was a distinction with the difference between this earlier conversation about the Rio program and the conversation when the court turned its eye to sentencing him and applying the upward variance.

[00:30:57] Speaker 02:
If that distinction is real,

[00:30:59] Speaker 02:
then that distinction also applies to this earlier discussion on page 60 of stuff where the court was not focused on sentencing, it was focused on whether it gave him the real program or not.

[00:31:11] Speaker 01:
Right, right, and we can see that the third argument is not the strongest argument.

[00:31:20] Speaker 01:
We mostly focus on our first argument, but plain and honestly, my time was up.

[00:31:24] Speaker 01:
Could I wrap up?

[00:31:26] Speaker 01:
Yes, of course you can wrap up.

[00:31:29] Speaker 01:
And as Judge Baldock pointed out, it's better to know on remand than to guess on appeal.

[00:31:36] Speaker 01:
And so we ask that the court.

[00:31:39] Speaker 01:
I try not to guess on appeal, but go ahead.

[00:31:42] Speaker 01:
That's a quote.

[00:31:43] Speaker 01:
That's a quote.

[00:31:43] Speaker 01:
And so we ask that the court remand vacate the census and remand for resentencing.

[00:31:48] Speaker 01:
Thank you, Your Honors.

[00:31:49] Speaker 01:
Thank you, counsel.

[00:31:50] Speaker 01:
Thank you for your argument.