[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
The panel will hear six cases this morning.

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We'll take a short break after the third case.

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And the first one is United States versus Dawson, number 25, 1096.

[00:00:17] Speaker 04:
Mr. Lunn, you may proceed.

[00:00:19] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
Happy St.

[00:00:21] Speaker 00:
Patrick's Day.

[00:00:22] Speaker 00:
May it please the court, my name is Bill Lunn.

[00:00:26] Speaker 00:
I represent the appellant, Jamal Lawrence Dawson.

[00:00:31] Speaker 00:
This case involves the issue of whether docket sheets written by court clerical staff in a juvenile adjudication years earlier meet the reliability standard established by the Supreme Court in Shepard and later in Ellinger, and followed by this court in Martinez Hernandez and Abeita

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Leverton, and Wilkins to enhance an appellate's sentencing guidelines range from 57 to 71 months to 84 to 105 months.

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Getting the sentencing guidelines correctly calculated is important.

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Under GAL, the guidelines are the starting point.

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And they are to be followed throughout the entire sentencing process, the judges to remain cognizant of them.

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Under a few, the guidelines are called the anchor that anchors the trial court's discretion.

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In a case like this one, where the guidelines might be less than what had been calculated by the court, this court in Sabillon-Umana and also in Cook has recognized that when the guidelines move up or down, the remainder of the sentencing, such as departures or variances, also can be skewed upward or downward as well.

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This case involves juvenile adjudications that took place in 2017 in two cases.

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And they were said to run consecutively to a previous juvenile adjudication in a 2016 case.

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My client had four juvenile adjudications in 2016.

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And then he had the two in 2017.

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All of the records in all of those cases were lost.

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So there's no way to know when the 2016 cases were actually discharged.

[00:02:57] Speaker 04:
Counsel, can I just ask you about that last point?

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Were they lost or were they just not produced?

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Are they out there somewhere where they could be found at this point?

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It's a question I've never actually thought of.

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I can't imagine as I read the record in this case that if there was something that might have been available that they might not have taken time to go find it because there was so much time spent about these records and certainly everyone seemed to acknowledge how shocking it was that the juvenile bureau in

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Denver, or rather in Colorado, no longer had these records.

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So I assume that they're really lost, and there's no way to find them.

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In this case, the issue of course becomes, in the two juvenile cases in 2017, my client receives a one-year sentence.

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During that one-year period, he didn't report back a day that he had a day pass and was gone for 64 days.

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His period of incarceration on those two 2017 juvenile intruscations started on November the 21st of 2017.

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And then the offense that he committed, which he's charged with in federal court, which is possession of the firearm, was committed on February the 13th, 2024.

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So if you take the one-year sentence,

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And you add the 64 days of time for the period you had escaped, you come up with at least 20 day, a 20 day gap.

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which means that even if he might have started his sentence to the 2016 case at some point, he could have completed the 2016 case within that 20-day period.

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And as a result, you would not have counted those 2017 cases under USSG.

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Well, Counsel, could I just?

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That raises a question I've had about

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the timeline here, and it's kind of a complicated timeline.

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There's a lot of offenses, a lot of sentences, a lot of consecutives and concurrences and all of that.

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And in sorting through it, one question I had is a general matter, and then we'll get to this particular case.

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In the juvenile system in Colorado,

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Does the juvenile get credit for time served for the pre-sentence detention period?

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Certainly, again, in this case, the record suggests that you did.

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And on top of that, the record also indicates that it's very common for

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that you don't serve your sentence day for day.

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So if you got a two-year sentence, for instance, in those 2016 cases, it's very possible that you would not have served two years in those sentences.

[00:06:27] Speaker 04:
Well, that's because that was a zero to two-year sentence.

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Yes, that's correct.

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Or actually an indeterminate sentence.

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But again, we don't have a lot of information about how

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the Colorado juvenile system works through the record here or the briefing.

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But it seems as though the 2017 sentence, or the sentence for the 2017 offenses, I think someone's calling them the disputed cases.

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Is that OK?

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That was a one year.

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But at that point, wasn't the system not doing indeterminate sentences?

[00:07:11] Speaker 00:
I can't answer that.

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I don't know that that's in the record.

[00:07:13] Speaker 04:
Well, the problem is there's a lot we don't know about how this system works that isn't reflected in the documents.

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You said the sentence for the disputed cases started in November 2017, but the sentence was imposed in January 2018, and the government's arguing

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That's when the sentence began.

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You add the 64 days to the one year, and then that gets you past this critical day of February 13, 2019.

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That's their argument.

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Your argument is the Senate started in November 2017, so you don't get it.

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So why are you right and the government isn't?

[00:07:59] Speaker 00:
Well, under the Gay case,

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Ambiguity is in favor of criminal defendants.

[00:08:05] Speaker 04:
Well, apart from ambiguity, I get back to does that pre-sentence period of time, does that count?

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It seems like we don't know from many records.

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And the answer is if you don't know, that is ambiguous.

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And so you have to make that ruling in favor of the defendant.

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Certainly, there was never any dispute that he had been taken into custody in those two 2017 cases on November 21st of 2017.

[00:08:38] Speaker 04:
Well, let me ask you a different type of question.

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So again, both in terms of how things generally work in the system, we could use a little more information about, but also here, the sentence is imposed

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for one year.

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Does a juvenile who is sentenced to one year typically serve the whole year?

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Do we know whether this one-year sentence would serve in full?

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Is there some kind of good-time credit system?

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in the juvenile system.

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Do we know any of that?

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Well, the only thing we know is what the defendant's attorney argued at the hearing.

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And she indicated that in the juvenile sentencing in Colorado, it is not typically day for day.

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And that was not disputed by the government's attorney.

[00:09:29] Speaker 04:
Well, but it may not typically be.

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But then, first of all, that doesn't tell us a lot.

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And second, it doesn't tell us anything about this specific case.

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How long, for example, did he serve the 0 to 2?

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How long did he serve the one-year sentence?

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And to the extent we're trying to total up the days, how are we supposed to do that?

[00:09:53] Speaker 00:
You're not.

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And the defendant's argument was that it should be unknown.

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And therefore, the rule of lenity, just as it applied to the 2016 juvenile adjudications, which were held not to be appropriate for sentencing enhancements, should also apply to the 2017 cases.

[00:10:13] Speaker 01:
Can I ask, because you referenced rule of lenity, what authority do you have that rule of lenity applies

[00:10:22] Speaker 01:
sentencing calculations rather than limited to the interpretation of substantive crimes?

[00:10:32] Speaker 00:
Well, there are at least three cases that deal with the issue of docket sheets.

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And then there's also.

[00:10:38] Speaker 01:
No, I'm not talking about docket sheets and interpreting those.

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I'm talking about specifically invoking the rule of lenity.

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What authority do you have that rule of lenity?

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which I think of as usually limited to interpreting substantive crimes.

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Did the defendant know or not know about the substantive crimes?

[00:11:01] Speaker 01:
You're applying what you call the rule of lenity to the calculation of confinement times, an administrative question.

[00:11:10] Speaker 01:
Lenity is invoked because we say people should know what would control their criminal behavior or not.

[00:11:18] Speaker 01:
But a sentencing calculation doesn't seem to mean

[00:11:21] Speaker 01:
me to really relate to what a defendant has to or not have to do.

[00:11:26] Speaker 01:
It instead refers to how the probation department calculates confinement time.

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So I'm not certain.

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I don't feel comfortable that we apply a rule of lenity concept to sentencing calculations.

[00:11:40] Speaker 01:
So I'm asking you what authority you have that specifically invokes the words rule of lenity in calculating sentencing calculation times.

[00:11:50] Speaker 00:
Well, I think that's a good point.

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I don't know that it necessarily does apply.

[00:11:53] Speaker 01:
So you don't really mean the rule of lenity.

[00:11:55] Speaker 01:
What you really mean is that there's some starting burden of the government to make a case before the defendant has to start challenging it.

[00:12:05] Speaker 00:
We can rely on the case from this court in Martinez Hernandez.

[00:12:10] Speaker 01:
I understand.

[00:12:10] Speaker 01:
The cases that you have, it was just the terminology.

[00:12:13] Speaker 01:
So I think we're on the same page.

[00:12:16] Speaker 00:
OK.

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The reliability standard for documents that you use for purposes of calculating sentencing guidelines does not include police reports, and it does not include docket sheets.

[00:12:34] Speaker 02:
Before you run out of time, I have a couple of things I wanted to ask you.

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Just as a general matter in your experience here in Colorado, do you recognize the difference between

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when somebody is being held in custody pending adjudication of charges and when someone is being held in custody pending or for purposes of serving out a sentence.

[00:12:59] Speaker 02:
I hate to tell you, but I don't practice in Colorado.

[00:13:03] Speaker 02:
Well, and the reason I ask is because I look at this case and what happened here is when he was later, when he was sentenced on the 2017 cases, they ridded him out to bring him in.

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And generally when someone's being held pending adjudication, there's no writ to bring them to court.

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They're just brought.

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But when someone is serving a sentence for another crime and they're being charged with an additional crime that has to be adjudicated, they writ them out to bring them to court.

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But he was already serving.

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His life was even more complicated by an attempted murder charge that he was being held on.

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And so he could have been ridded out on the attempted murder charge.

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And he stayed in custody on the attempted murder charge until 2023.

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So we don't know what case he got ridded out on.

[00:14:02] Speaker 02:
OK, fair enough.

[00:14:04] Speaker 02:
So do you have a... I mean, why can't we presume that the district court judge

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when he sentenced the defendant to a consecutive sentence was not in possession of knowledge that he was serving the prior sentence.

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Otherwise, you don't give a consecutive sentence.

[00:14:26] Speaker 00:
I don't know why that might have occurred.

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I mean, all we've got is the record of what we have of a record in this case.

[00:14:33] Speaker 00:
I can't answer that.

[00:14:34] Speaker 02:
I mean, wouldn't that be evidence though that he was serving a sentence?

[00:14:39] Speaker 00:
Even if he was serving a sentence, he might have completed that sentence the next day.

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And then we still have the same problem we have currently in this case.

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You got those 20 days.

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He could have finished that sentence.

[00:14:53] Speaker 00:
May I please reserve my time?

[00:14:55] Speaker 00:
11 seconds.

[00:14:56] Speaker 00:
Thank you.

[00:15:00] Speaker 03:
Good morning, Your Honors.

[00:15:01] Speaker 03:
Michael Johnson for the United States.

[00:15:04] Speaker 03:
We are relying primarily on the first argument that we presented in our answer brief.

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That first argument is that on August 7, 2019, Mr. Dawson received a consecutive sentence.

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And that demonstrated, that consecutive sentence on August 7, 2019, demonstrated that the state court judge had determined that he was still serving time in the two operative cases here, namely,

[00:15:35] Speaker 03:
2017 JDA 36 and 2018.

[00:15:41] Speaker 01:
Give me the names of those two, but why does it demonstrate that he was serving from two previous ones rather than just one of those?

[00:15:49] Speaker 01:
But give the sides first of the two prior ones again.

[00:15:52] Speaker 01:
I have it, but I'm going to write it here on a note.

[00:15:55] Speaker 01:
Yes, Your Honor.

[00:16:00] Speaker 03:
On page

[00:16:02] Speaker 03:
Well, I don't want you to take any time.

[00:16:04] Speaker 03:
No, no, I can give you the site, Your Honor.

[00:16:08] Speaker 03:
So the sentences, the operative sentences at issue here are 2017 JD 836 and 2018 JD 76.

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On August 7, 2019, Mr. Dawson received a consecutive sentence in two other cases, and those sentences ran

[00:16:32] Speaker 03:
consecutively to the two operative cases at issue here.

[00:16:35] Speaker 04:
Well, other than what's shown on the docket sheet, is there any evidence that the judge, not in federal district court, but in juvenile court, was actually aware of whether he was still serving those sentences?

[00:16:50] Speaker 03:
Yes, there is, Your Honor.

[00:16:56] Speaker 03:
That issue here wasn't simply that the state court judge

[00:17:02] Speaker 03:
issued a sentence on August 7, 2019 saying that these two new sentences would run consecutively to whatever Mr. Dawson might be serving at this time.

[00:17:11] Speaker 01:
Was that his language?

[00:17:13] Speaker 01:
They'll run consecutive to whatever sentences you're serving?

[00:17:16] Speaker 01:
That's no proof at all that the district judge had determined he was serving prior sentences.

[00:17:23] Speaker 01:
Whatever says, I don't know, but I'm not going to worry about it.

[00:17:26] Speaker 03:
That's exactly right.

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And there's no evidence here to show that the state court judge made that statement.

[00:17:32] Speaker 04:
To the contrary.

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I think the only thing we have is the docket sheet.

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I'm looking at it right now.

[00:17:39] Speaker 04:
Comments.

[00:17:40] Speaker 04:
Two years, consecutive to the 836 and 76, which are the disputed cases, concurrent to 896, 15236.

[00:17:54] Speaker 04:
That's all we've got.

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That is important, though.

[00:17:57] Speaker 04:
Well, my question to you is, was there any evidence

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that this judge knew whether the disputed case sentences were still being served, other than this docket sheet.

[00:18:14] Speaker 03:
If you're referring to the precinct's investigation report.

[00:18:17] Speaker 04:
No, I'm asking you, is this it?

[00:18:21] Speaker 04:
And you're not answering the question.

[00:18:23] Speaker 03:
This is, I believe you're referring to the PSR, and this is it.

[00:18:27] Speaker 04:
No, I'm referring to the docket sheet.

[00:18:30] Speaker 04:
It's in the record.

[00:18:32] Speaker 04:
I just read you the comment.

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Isn't that all there is?

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That's what the PSR talks about.

[00:18:38] Speaker 04:
So you can't go to the PSR when it's only repeating what's in this docket sheet.

[00:18:46] Speaker 03:
The only information that was before the district court at sentencing in this case was the information, Your Honor, that you just mentioned.

[00:18:54] Speaker 03:
Thank you.

[00:18:55] Speaker 04:
And it doesn't show whether the state judge was aware or had knowledge

[00:19:00] Speaker 04:
that those sentences were still being served, other than to use the words consecutive.

[00:19:05] Speaker 04:
And isn't it true that even if the disputed case sentences had been completed, that this new sentence actually was consecutive?

[00:19:20] Speaker 04:
It was an add-on.

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It was going to be served in full.

[00:19:23] Speaker 04:
And I guess I'll add one other question.

[00:19:26] Speaker 04:
In the juvenile system in Colorado, if you know, and there's a lot that we haven't been told about the juvenile system in Colorado, because I'm not sure whether anyone really had completely presented this in district court, doesn't the sentencing judge have to say it's consecutive?

[00:19:49] Speaker 03:
Do we know that?

[00:19:51] Speaker 03:
As to one of the offenses, there is a requirement that a sentence be

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issued consecutively.

[00:19:57] Speaker 03:
And we pointed that out in a footnote in our answer brief.

[00:20:01] Speaker 03:
All right.

[00:20:01] Speaker 04:
But is this all we've got?

[00:20:04] Speaker 04:
That's what you've said.

[00:20:05] Speaker 04:
Yes, but this is- That's all we've got.

[00:20:06] Speaker 04:
Why don't we send this back to the district court to get this sorted out?

[00:20:11] Speaker 04:
Because there is just a lot we don't know based on this record.

[00:20:17] Speaker 03:
The reason why the court need not send it back to the district court is because the information, Your Honor, that you just referred to is sufficient

[00:20:25] Speaker 03:
to show by preponderance of the evidence that Mr. Dawson was serving these two sentences in the two operative cases as of August.

[00:20:35] Speaker 04:
This is preponderance of the evidence document?

[00:20:39] Speaker 04:
Why is this preponderance?

[00:20:44] Speaker 03:
This shows that it's more likely than not that the state court judge looked at Mr. Dawson's records, determined that- What records?

[00:20:55] Speaker 03:
There were no records.

[00:20:57] Speaker 04:
What other records were there?

[00:20:59] Speaker 04:
And if there were, why aren't they in the record?

[00:21:04] Speaker 03:
The documents would show whether or not Mr. Dawson was currently serving a sentence.

[00:21:11] Speaker 04:
You're assuming a lot, counsel.

[00:21:14] Speaker 01:
How do you know that?

[00:21:16] Speaker 01:
I mean, docket sheets are not kept up to date on a daily basis.

[00:21:20] Speaker 01:
A docket sheet reflects what a sentencing judge says at a prior point in time.

[00:21:25] Speaker 01:
And nobody, day to day, keeps saying, yep, still serving the sentence.

[00:21:29] Speaker 01:
Put that on a docket sheet.

[00:21:30] Speaker 01:
The next day on a docket sheet, yep, still serving a sentence.

[00:21:33] Speaker 01:
It doesn't keep a running tab of when the juvenile is released or not.

[00:21:40] Speaker 03:
The fact that the information

[00:21:43] Speaker 03:
in the record here to this court indicates that the state court judge examined a number of sentences that Mr. Dawson was serving.

[00:21:53] Speaker 03:
The state court judge identified three sentences that the state court judge determined should be ones to which the new sentences would run concurrently.

[00:22:04] Speaker 03:
This is volume two of the record at page 52, paragraphs 41 and 42.

[00:22:12] Speaker 03:
And that applies as to the two operative sentences here, the 2017 JD-836 and the 2018 JD-76.

[00:22:22] Speaker 03:
The state court judge looked at Mr. Dawson's information and determined that the sentence would run concurrently to three, but at the same time looked at his sentences and determined to run

[00:22:38] Speaker 03:
consecutively, these two new sentences to the two operative sentences.

[00:22:41] Speaker 04:
We'll have to look at what you decided.

[00:22:43] Speaker 04:
But how do we know what the state court judge actually looked at that led to this information on the docket sheet?

[00:22:54] Speaker 03:
We don't know exactly what the state court judge looked at.

[00:22:57] Speaker 03:
But I thought you just said that the state court judge looked at the sentences.

[00:23:01] Speaker 03:
He looked at information in order to know that.

[00:23:04] Speaker 03:
Because he didn't just make these numbers up willy-nilly.

[00:23:08] Speaker 03:
He had to look at some information to determine.

[00:23:11] Speaker 03:
But we don't know what information.

[00:23:12] Speaker 03:
Well, we don't.

[00:23:13] Speaker 04:
Do we even know who put these comments on the docket sheet?

[00:23:19] Speaker 03:
I don't know, Your Honor.

[00:23:20] Speaker 03:
But I do know that the Supreme Court has said in the Dunn v. Reeves case, which we cite in our answer brief, that this court should presume that a state court judge

[00:23:30] Speaker 03:
follows the law and understands the law when it's performing its duties.

[00:23:34] Speaker 04:
Could I just ask you a couple of questions that I asked Mr. Lund?

[00:23:37] Speaker 04:
Do you know whether pre-sentence detention time is credited toward a sentence once it's imposed in the Colorado juvenile court system?

[00:23:49] Speaker 03:
I don't know the answer to that, Your Honor.

[00:23:51] Speaker 04:
Well, if that's so, then what happens to your argument

[00:23:55] Speaker 04:
that the time on the one-year sentence started in January 2018, as opposed to what Mr. Lund said, that it started in November 2017.

[00:24:03] Speaker 03:
The government is making two arguments.

[00:24:06] Speaker 03:
Our first argument focuses on the sentence on August 7, 2019.

[00:24:10] Speaker 03:
We can get to that.

[00:24:12] Speaker 03:
I asked you the question about your other argument.

[00:24:15] Speaker 04:
Your other argument is, sentence started January 2018.

[00:24:21] Speaker 04:
He escapes for 64 days, so that takes him past February 13.

[00:24:26] Speaker 04:
And my question is, if he gets credit for the pre-sentence detention time, your argument doesn't work, unless you can tell me it does.

[00:24:37] Speaker 03:
No, Your Honor, that's correct.

[00:24:39] Speaker 03:
If he gets credit for pre-sentence time, my second argument would not be as successful as my first argument.

[00:24:46] Speaker 03:
My first argument doesn't depend

[00:24:48] Speaker 03:
on that information.

[00:24:50] Speaker 03:
My first argument is clean.

[00:24:53] Speaker 04:
Well, let's talk about that.

[00:24:56] Speaker 04:
How do we know whether the one-year sentence is a true one-year sentence?

[00:25:03] Speaker 04:
I mean, do juveniles serve the full sentence?

[00:25:06] Speaker 04:
Do they get any credit for good behavior?

[00:25:09] Speaker 04:
Do we know anything about that?

[00:25:11] Speaker 03:
We don't need to know that for purposes of my first argument.

[00:25:14] Speaker 03:
If it's a consecutive sentence, the state court judge would not issue a consecutive sentence unless the defendant is, in fact, serving the sentence to which the new sentence would be consecutive.

[00:25:25] Speaker 03:
This court should presume that the state court judge understood that, followed the law, and determined that, in fact, he was serving the sentences in the two cases at issue here.

[00:25:37] Speaker 01:
Well, isn't it possible?

[00:25:39] Speaker 01:
that the judge simply said, I want you to serve real time for this new offense.

[00:25:44] Speaker 01:
So I'm going to make it consecutive rather than concurrent, which essentially means you're not adding additional time.

[00:25:49] Speaker 01:
I want to make sure you do.

[00:25:51] Speaker 01:
But that's the only principle I'm saying when I say consecutive, that I want you to serve time for this particular offense.

[00:25:57] Speaker 01:
In terms of when it starts, how it starts, what's out there previously, I'm not ruling on any of those things.

[00:26:06] Speaker 01:
And it seems to me that just eviscerates

[00:26:08] Speaker 01:
any kind of judicial determination that you're now relying on?

[00:26:13] Speaker 03:
I don't think so, Your Honor.

[00:26:14] Speaker 03:
And the reason why is because that assumes that the state court judge was not taking his sentencing obligations seriously.

[00:26:20] Speaker 01:
No, he was taking it seriously, but he was allowing the prison authorities to calculate what this guy

[00:26:30] Speaker 01:
sentencing times were.

[00:26:31] Speaker 01:
I mean, I'm not sure that was really before the court, and the district were really focused on that.

[00:26:36] Speaker 01:
I don't think anybody said, now, Judge, let's really make sure the record shows whether he's incarcerated, how long, and how much credit time he got.

[00:26:46] Speaker 01:
We don't have any of that.

[00:26:47] Speaker 01:
Nobody said that.

[00:26:48] Speaker 01:
But that's a problem for me as to who had the burden to have raised those questions.

[00:26:55] Speaker 02:
Let me ask you a question, sort of follow up on this.

[00:26:59] Speaker 02:
So are you aware of a case where a judge has imposed a consecutive sentence to an already completed sentence?

[00:27:08] Speaker 03:
I'm not aware of one.

[00:27:09] Speaker 03:
And if a court did that, either a federal court or a state court did that, that would not be a proper sentence.

[00:27:15] Speaker 03:
There's nothing here suggesting.

[00:27:18] Speaker 04:
Why not?

[00:27:19] Speaker 04:
Is there anything wrong with that?

[00:27:20] Speaker 04:
I mean, if the previous sentence were served and the judge says consecutive,

[00:27:24] Speaker 04:
What difference does it make?

[00:27:26] Speaker 04:
Is there any problem with that?

[00:27:28] Speaker 03:
By definition, it cannot be a consecutive sentence.

[00:27:31] Speaker 04:
But does it even matter?

[00:27:33] Speaker 04:
Would it even matter?

[00:27:34] Speaker 04:
If the judge said that, what are we going to do?

[00:27:37] Speaker 04:
Reverse and say, you shouldn't have said consecutive?

[00:27:39] Speaker 04:
And he says, OK.

[00:27:42] Speaker 04:
Instead of 10 years consecutive, I'll just say 10 years.

[00:27:44] Speaker 01:
But it's still 10 years.

[00:27:45] Speaker 01:
But he couldn't say concurrent either.

[00:27:47] Speaker 01:
I mean, it would be just as wrong if the other sentences had already been served.

[00:27:50] Speaker 01:
It would be just as wrong to say concurrent.

[00:27:52] Speaker 03:
That's exactly right.

[00:27:54] Speaker 03:
It would be error for the state court judge to say either one.

[00:27:58] Speaker 03:
And there's no indication here that the state court judge made such errors.

[00:28:02] Speaker 03:
And the fact that the state court judge looked at five different sentences that Mr. Dawson was serving at that time, five sentences, and made the decision to have two of them consecutive.

[00:28:17] Speaker 03:
sentences and then the other three concurrent sentences.

[00:28:19] Speaker 04:
Why couldn't it be read that the judge was being extra conscientious and was simply making sure that the sentence that was being imposed August 2019 was going to be fully served and so out of an abundance of caution said consecutive.

[00:28:39] Speaker 04:
Isn't that a possibility?

[00:28:41] Speaker 04:
It isn't the judge not doing the job, it's the judge making sure that the actual sentence is going to be served.

[00:28:47] Speaker 03:
But the mere possibility that a state court judge might have done this or that doesn't mean that that shows a lack of a preponderance of evidence, as the district court here found.

[00:28:58] Speaker 04:
The problem, counsel, is all you've got is this docket sheet.

[00:29:04] Speaker 04:
And it just raises a lot of questions.

[00:29:08] Speaker 04:
And I just don't understand why the government didn't produce something beyond this.

[00:29:17] Speaker 04:
if they wanted the points to be added?

[00:29:24] Speaker 03:
Partly, Your Honor.

[00:29:24] Speaker 03:
The reason is that there weren't these records.

[00:29:29] Speaker 03:
At volume 2, page 51, footnote 7, there's a statement that the DYS informed the probation office that it did not have the records showing

[00:29:43] Speaker 03:
when the sentences in the operative cases here, the two cases at issue here, when those cases were discharged.

[00:29:49] Speaker 04:
Weren't there other juvenile court records that could have been produced?

[00:29:55] Speaker 03:
I don't know the answer to that, Your Honor.

[00:29:57] Speaker 04:
Well, that's a problem, isn't it?

[00:29:59] Speaker 04:
That there may be records out there that could answer some of these questions.

[00:30:03] Speaker 03:
I see that my time's expired.

[00:30:05] Speaker 03:
If I could just answer your question briefly.

[00:30:08] Speaker 03:
Please.

[00:30:10] Speaker 03:
Although the evidence here is not

[00:30:14] Speaker 03:
significant or certainly not overwhelming.

[00:30:17] Speaker 03:
It does show by a preponderance that the district court could presume that the state court judge followed the law, understood what a consecutive sentence meant, and properly sentenced Mr. Dawson to a consecutive sentence on August of 2019, which meant he was serving the sentences past the February 13, 2019 operative date.

[00:30:36] Speaker 03:
We would ask that the court affirm.

[00:30:38] Speaker 04:
Thank you, counsel.

[00:30:38] Speaker 04:
I understand your argument.

[00:30:40] Speaker 04:
Mr. Leonard, 30 seconds.

[00:30:45] Speaker 00:
I'm sorry, judges.

[00:30:49] Speaker 00:
It's important, obviously, that you recall what the government's attorney said at this hearing, which she agreed with the defendant's counsel that it was shocking that there were no records.

[00:31:00] Speaker 00:
And then beyond that, I just simply think it's important to go back to the Erlinger case, where it indicates that the defendant may have no incentive to correct what does not matter in his case.

[00:31:12] Speaker 00:
And these are juvenile adjudications.

[00:31:15] Speaker 00:
And so that's his situation here.

[00:31:21] Speaker 01:
May I just ask a question?

[00:31:22] Speaker 01:
Yes.

[00:31:24] Speaker 01:
I'm troubled about who has the responsibility at the sentencing to say, Judge, wait just a minute.

[00:31:30] Speaker 01:
We don't think the record shows whether he is serving current sentences or not.

[00:31:37] Speaker 01:
Can we get that clarified?

[00:31:39] Speaker 01:
Who should have spoken up at that time to get that in the record at that time?

[00:31:46] Speaker 01:
Which attorney was at fault for being silent?

[00:31:50] Speaker 00:
In the earlier state court adjudication?

[00:31:54] Speaker 01:
Right, at the state court adjudications.

[00:31:56] Speaker 01:
No, the sentencing.

[00:31:58] Speaker 00:
Yes, and I can't answer that.

[00:32:00] Speaker 00:
I would think always that there's some responsibility by the state to be able to establish that there was, in fact, a prior sentence that was in existence.

[00:32:11] Speaker 01:
It's kind of a fiduciary responsibility of the state to make sure the records show that.

[00:32:15] Speaker 00:
Yes.

[00:32:15] Speaker 01:
So if the state had that responsibility, then isn't it more logical to hold the state responsible for simply a gap in the information?

[00:32:27] Speaker 00:
I think so.

[00:32:28] Speaker 00:
I think there is that gap, and we can't speculate about what might have happened.

[00:32:37] Speaker 04:
Thank you.

[00:32:37] Speaker 04:
Thank you.

[00:32:38] Speaker 04:
Thank you.

[00:32:41] Speaker 04:
All right, time is expired.

[00:32:43] Speaker 04:
The case will be submitted.

[00:32:47] Speaker 04:
Mr. Johnson, you're excused.

[00:32:49] Speaker 04:
Mr. Lunn, we'll hear from you in the third case.