[00:00:01] Speaker 04: Let's take our next oral argument case, 25-2060, United States versus Garley. [00:00:12] Speaker 04: Ms. [00:00:12] Speaker 04: Edelman. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: My name is Violet Edelman, and I'm representing Nathan Garley. [00:00:21] Speaker 02: I hope to reserve two minutes of my time for rebuttal. [00:00:25] Speaker 02: The district court in this case imposed a significant upward variance for a fentanyl offense [00:00:30] Speaker 02: based on an erroneously calculated hypothetical guideline range for methamphetamine. [00:00:36] Speaker 02: Because the district court did not offer any explanation for why methamphetamine is an appropriate substitute for fentanyl, the sentence is substantively unreasonable. [00:00:47] Speaker 02: The district court's explanation was limited to its expression of a view that fentanyl should not be treated less seriously than methamphetamine. [00:00:57] Speaker 02: But that statement does not address how the methamphetamine guideline [00:01:01] Speaker 02: better serves the 3553A factors for a fentanyl offense than the fentanyl guideline. [00:01:06] Speaker 03: Well, is it an obvious, you know, the severity of the offense, the district court treated fentanyl as a more insidious drug than methamphetamine actual, and so, you know, treating it as less harmful struck the district court as illogical. [00:01:31] Speaker 02: That is what the district court said. [00:01:34] Speaker 02: But that doesn't actually explain why the guidelines calibrated to methamphetamine actual better serve the purposes in terms of fentanyl. [00:01:45] Speaker 02: And it also neglects sort of the large universe of things that the commission typically looks at and that other courts will look at when voicing a policy disagreement and using some other guideline or metric. [00:01:59] Speaker 02: in its place, because it's not just as simple as a sheer raw number of deaths. [00:02:06] Speaker 02: It's a holistic analysis. [00:02:08] Speaker 04: Why not? [00:02:10] Speaker 04: That seems to me to be a very reasonable way to compare. [00:02:14] Speaker 04: If one is more deadly than the other, then it shouldn't be less severe under the guidelines. [00:02:20] Speaker 04: Why is that not a reasonable analysis by the [00:02:24] Speaker 02: Because, for example, when the commission conducts an analysis of drugs, harms caused by drugs, it will look at deadliness, but it also looks at dosage and the pharmacological makeup and effects and market dynamics and associated violence, prevalence of use, rate of ER hospital visits and deaths relative to the number of reported users and other collateral consequences, and importation and trafficking patterns. [00:02:53] Speaker 02: the dangerousness of a drug, it doesn't just come down to a simple number of deaths caused in a number of years. [00:03:03] Speaker 01: So it seems to me that what is confusing to me about your substantive reasonableness challenge is it feels like a procedural reasonableness challenge. [00:03:10] Speaker 01: And especially, and I will tell you how I'm thinking about it, I know our cases like Crosby most recently [00:03:19] Speaker 01: find some gray there and there is a way to make this argument about failure to explain in the substantive reasonable context. [00:03:27] Speaker 01: It's not the gall type of procedural error context. [00:03:30] Speaker 01: But your argument seems to suggest that the district court made some sort of clearly erroneous conclusion about dangerousness. [00:03:40] Speaker 01: And it just, you know, sentencing based on erroneous facts is not a substantive reasonableness argument. [00:03:46] Speaker 01: So help me understand how to [00:03:48] Speaker 01: how to receive your argument properly as a substantive reasonableness challenge that is not subject to procedural reasonableness law. [00:03:58] Speaker 02: OK, yes. [00:03:59] Speaker 02: So as you mentioned, the inquiries are overlapping. [00:04:04] Speaker 02: And an inadequate explanation will sometimes result in a substantively unreasonable sentence, because the question when we're looking at substantive reasonableness is really whether the court [00:04:16] Speaker 02: grounded the term that it chose by reference to its explanation, whether the length was appropriate in light of that explanation. [00:04:26] Speaker 02: I don't think this really is a procedural question, because it's not about an improper calculation of the guideline range. [00:04:37] Speaker 02: The district court properly calculated the fentanyl guideline range. [00:04:41] Speaker 02: But then what it did is it invoked [00:04:45] Speaker 02: this policy disagreement, and then pulled in the methamphetamine guidelines as the justification for the link that it chose? [00:04:55] Speaker 01: Well, it didn't fail to explain. [00:04:57] Speaker 01: It just, you take issue, and maybe righteously so, with the explanation. [00:05:03] Speaker 01: And I think we have a very narrow lane in which to receive procedural error-like arguments as substantive reasonableness arguments. [00:05:15] Speaker 02: Well, I think that this court's decisions in Crosby and in Cookson before it discuss the use of a policy disagreement in the substantive reasonableness consideration. [00:05:29] Speaker 02: Because my issue with his use of the methamphetamine guideline is he didn't justify why it was appropriate, and so it doesn't [00:05:41] Speaker 02: substantiate the length of imprisonment that he imposed. [00:05:47] Speaker 02: I think Kimbrough offers a guide for how courts are supposed to express a policy disagreement. [00:05:54] Speaker 02: And when they vary based solely on a view about the inadequacy of a guideline, this court applies closer review to what they did and the explanation offered. [00:06:10] Speaker 04: Now, as I understand it, the reason we care whether it's a substantive reasonableness or procedural reasonableness is we seem to be saying, if it's substantive reasonableness, then it doesn't have to be preserved. [00:06:24] Speaker 04: And I'm not sure that's the way to read the Supreme Court law on that. [00:06:29] Speaker 04: What they said is, if you're arguing that's too long, that preserves a substantive reasonableness argument. [00:06:41] Speaker 04: It did not decide that there aren't components of a substantive reasonableness argument that need to be preserved. [00:06:49] Speaker 04: And here, if you, just in our general preservation jurisprudence, if you think the judge is making a mistake by equating fentanyl with methamphetamine, you should say so. [00:07:06] Speaker 04: That gives the judge a chance to explain more. [00:07:09] Speaker 04: So however you want to label it, isn't this the sort of argument that should have been made to the judge so the judge could explain rather than coming up here and sending it back down for more explanation? [00:07:22] Speaker 02: Well, I think that the judge's instinct to utilize an alternative guideline or explain a variance by reference to a different provision in the guidelines [00:07:36] Speaker 02: is correct when it's voicing a policy disagreement. [00:07:40] Speaker 02: I think the issue here is that it didn't substantiate the sentence because he just looked at the methamphetamine range and then said, oh, so this is why I'm going to give 240 months. [00:07:54] Speaker 04: But you didn't argue that to the judge at trial, though, at sentencing, did you? [00:07:59] Speaker 02: No. [00:07:59] Speaker 04: And that's the point I'm making, is that you, as attorneys naturally, like to [00:08:07] Speaker 04: categorize as much as possible as a substantive regionals challenge because then you don't have to preserve. [00:08:13] Speaker 04: And I think that's misreading the Supreme Court. [00:08:16] Speaker 04: It's over reading what the Supreme Court said. [00:08:19] Speaker 04: This is the sort of argument that could have been resolved in district court by arguing to the district court. [00:08:27] Speaker 04: You haven't explained that. [00:08:30] Speaker 04: And that's the sort of thing that should be preserved. [00:08:33] Speaker 04: And we should be, therefore, reviewing this for plain error, however you want to characterize the issue. [00:08:39] Speaker 02: Well, I think this court's cases make clear that the question of whether a policy disagreement justifies a sentence does belong in the substantive reasonableness review inquiry. [00:08:51] Speaker 04: So what? [00:08:53] Speaker 04: Even if it's substantive reasonableness, [00:08:55] Speaker 04: A lot of these substantive, reasonable arguments should, if you want to characterize it as that, need to be preserved. [00:09:01] Speaker 04: Just look at our general... [00:09:04] Speaker 04: general jurisprudence on preservation. [00:09:07] Speaker 04: If it's something that you can tell the judge who's ruling, you're making a mistake here and perhaps cure it, then it needs to be preserved. [00:09:19] Speaker 04: If you're just saying, judge, that's too harsh a penalty, that's something you've adequately preserved by arguing against the sentence. [00:09:27] Speaker 04: I don't think the court has gone, the Supreme Court, at least, has gone nearly as far as you have in saying, well, this is substantive reasonableness, so it doesn't need to be preserved. [00:09:37] Speaker 04: So we don't review for plain error, review for use of discretion or whatever. [00:09:42] Speaker 04: I understand that point of view. [00:09:45] Speaker 02: I would say that this court's cases also say that when there is an issue in the explanation and the explanation doesn't adequately [00:09:56] Speaker 02: set forth the reasons for the specific term chosen, it impedes review. [00:10:01] Speaker 02: And so it makes it more likely that the sentence is substantively unreasonable because this court then can't tell where the district court came up with the number that it chose. [00:10:11] Speaker 01: But in those cases, the problem was, as it often is in substantive reasonableness cases, [00:10:20] Speaker 01: an over-reliance on a particular factor. [00:10:23] Speaker 01: You look at the district court, you know, sort of puts 3553A to the side, maybe gives lip service to it and just says, I don't care about anything else except fentanyl is very bad. [00:10:39] Speaker 01: But the failure to explain cases are different. [00:10:43] Speaker 01: I mean, so it seems we would have to, to understand your argument as a substantive reasonable challenge, we would have to agree [00:10:50] Speaker 01: I think, and tell me if I have this wrong, that the district court was focused on the dangerousness of fentanyl as opposed to any other factor. [00:10:58] Speaker 01: But that's where the district court was focused, and that was a misweighing of the 3553A factors. [00:11:04] Speaker 02: I don't think that's exactly right, because I think the district court's focus on that still was a huge piece of the sentence that it chose. [00:11:14] Speaker 02: And so if that was inadequately explained [00:11:18] Speaker 02: then we can't tell where the 240 months came from. [00:11:22] Speaker 02: I mean, one of the differences between this case and cases that the district court cited where courts have approved of upward variances based on the dangerousness of fentanyl is that often in those cases, the dangerousness of fentanyl does tie into the 3553A factors for that specific case. [00:11:39] Speaker 02: because, for example, the fentanyl issue did cause a death. [00:11:44] Speaker 02: And so it's more grounded fully in the 3553A, and that's where it becomes an issue where the defendant was asking more for a reweighing. [00:11:53] Speaker 02: This is a categorical policy disagreement with the guidelines. [00:11:58] Speaker 02: And Kimbrough says that this court looks more carefully at [00:12:03] Speaker 02: that kind of justification than it does in the typical abusive discretion review when we're looking at substantive unreasonableness. [00:12:13] Speaker 02: Because it's different than the scenario where a district court is better positioned to evaluate facts and make findings related to 3553A in the specific case. [00:12:22] Speaker 02: It's a categorical expression. [00:12:24] Speaker 02: I don't think [00:12:25] Speaker 02: the fentanyl guidelines are correctly calibrated. [00:12:29] Speaker 02: So in a sense, it's more like a question of law. [00:12:31] Speaker 02: It's not really a question of weighing or a straight-up 3553A application. [00:12:38] Speaker 01: Do you agree that the district court considered the 3553A factors in this case? [00:12:45] Speaker 02: Yes. [00:12:46] Speaker 01: Yes. [00:12:46] Speaker 02: And that's part of why it's not a procedural challenge, because the district court did follow the correct procedure. [00:12:55] Speaker 02: issue with the substance of the explanation. [00:12:57] Speaker 02: So I think that's what places it squarely in the realm of substantive review. [00:13:03] Speaker 03: Ms. [00:13:04] Speaker 03: Settleman, can I ask you a question? [00:13:05] Speaker 03: And I don't want to cheat you out of your rebuttal, so you can put it aside and do your rebuttal. [00:13:11] Speaker 03: But I will just tell you the question I have. [00:13:14] Speaker 03: And it's a follow-up on my colleague Judge Hartz's line of questioning. [00:13:19] Speaker 03: The same inquiry, but framed in a different way. [00:13:23] Speaker 03: If we think of it, not in terms of preservation, but in terms of allowing the district court to exercise his or her discretion in a meaningful way under Doty, Fonce, Herrera, we've said repeatedly in presidential opinions recently that when we consider whether a district court abused his or her discretion, we consider the arguments and information presented to the district court. [00:13:49] Speaker 03: The district court, all of this discussion about the explanation, [00:13:53] Speaker 03: It's obviously what I think everybody agrees, what Judge Johnson is saying, is fentanyl is a lot worse than methamphetamine actual, and so it makes no sense to treat it as more benign. [00:14:04] Speaker 03: And so you had an argument that, in response to Judge Hartz, that you were also foregoing consideration of the dosage and the pharmacological uses. [00:14:17] Speaker 03: Now, if someone had said that to Judge Johnson, he may very well have said, you know, that makes sense. [00:14:23] Speaker 03: If we think about consumable quantities, let's say if you use an ounce of marijuana to get high, or you use a gram of methamphetamine to get high, then we have to consider not only the insidious qualities of the drugs, but also the quantity of drugs that are being used on an individual basis. [00:14:49] Speaker 03: That might make a lot of sense, but nobody told Judge Johnson that. [00:14:53] Speaker 03: So what he's saying is, on its face, eminently reasonable. [00:14:57] Speaker 03: If you had presented that argument to Judge Johnson, Judge Johnson is just exercising his discretion on the arguments that information presented to him. [00:15:07] Speaker 03: He thought methamphetamine was a lot more benign than fentanyl. [00:15:11] Speaker 03: And so he didn't have the benefit of your really excellent points about the dosage and the pharmacological uses of the drug. [00:15:22] Speaker 02: I agree that, you know, if Judge Johnson had received an objection, perhaps he could have provided more of an explanation. [00:15:38] Speaker 02: But in explaining a sentence, and particularly in imposing an upward variance, a massive upward variance, the burden is on the district court to explain what it's doing. [00:15:50] Speaker 02: And Judge Johnson [00:15:52] Speaker 02: is the person who brought in this question about methamphetamine. [00:15:56] Speaker 02: And so once he was doing that, he needed to show his work so that we and Mr. Garley could understand why the guidelines were inappropriate in this case. [00:16:08] Speaker 02: And that is what's missing and why this is an error under substantive review. [00:16:16] Speaker 03: And I genuinely apologize for [00:16:19] Speaker 03: Oh, that's okay. [00:16:21] Speaker 00: Thank you Good morning your honors may it please the court my name is a mulchini, and I'm here for the United States and I see that when doing my brief I took a [00:16:46] Speaker 00: I did not raise a preservation point. [00:16:49] Speaker 00: Perhaps I should have given some of the remarks here today, and I will keep that in mind in the future. [00:16:54] Speaker 00: I was more concerned about I thought I could defeat the arguments just simply based on as they were presented, and I think I still can. [00:17:03] Speaker 00: The one argument that we've seen is that Judge Johnson relied on the meth guideline in imposing sentence. [00:17:16] Speaker 00: And that's one thing he mentioned during his explanation of the sentence. [00:17:20] Speaker 00: But he went through each of the 3553A factors and talked about a number of different things. [00:17:27] Speaker 00: So for example, the seriousness of the defendant's criminal record, even though he was in the criminal history category one, and the callousness with which he acted after shooting the young boy and so forth. [00:17:41] Speaker 01: But isn't the problem here that [00:17:45] Speaker 01: If he enters in, it's not a procedural error. [00:17:47] Speaker 01: Let's assume the guideline calculation is what it is. [00:17:50] Speaker 01: There's a different argument tended to that in this case. [00:17:52] Speaker 01: But if he entered into the 3553A analysis in terms of the variance he wanted to impose with a different guideline in mind, he didn't use that guideline. [00:18:02] Speaker 01: He did a different guideline in mind because of what he thought about the difference between the drugs, but didn't really explain why he had that in mind. [00:18:13] Speaker 01: Why should we be comforted that he then discuss the 3553A factors appropriately? [00:18:21] Speaker 00: Okay. [00:18:22] Speaker 00: Well, I think he mentions the meth guideline range, but I think you can look at this in the entire context of the way the issue developed, which is that the government in its sentencing memorandum [00:18:35] Speaker 00: went into detail about why fentanyl is more dangerous and cited Judge Johnson's opinion in Jimenez-Marquez and reminded the district court, in the past you've said fentanyl makes no sense to treat fentanyl less seriously than meth when fentanyl is killing twice as many people as meth. [00:18:54] Speaker 00: The government brought it up again in his arguments both at the sentencing hearing. [00:19:01] Speaker 00: And so I think sometimes when [00:19:04] Speaker 00: An issue is before the court. [00:19:06] Speaker 00: Sometimes the court may refer to it in a more summary way, assuming that everyone there knows what is going on and what issue he's talking about. [00:19:16] Speaker 00: And at that point, defense counsel didn't stand up and say, Your Honor, what's this Jimenez-Marquez you're talking about? [00:19:24] Speaker 00: What's going on? [00:19:25] Speaker 00: I don't know anything about it. [00:19:29] Speaker 00: I think that's my answer to it. [00:19:31] Speaker 00: I think everyone knew what the judge was getting at. [00:19:34] Speaker 00: And even though he might have, in an ideal world, explained a lot further, that's sometimes the way issues develop in courts when people kind of, based on prior discussions and briefing, people know what the issue is and may discuss them in a more summary way. [00:19:51] Speaker 00: So I think you can take comfort from that. [00:19:53] Speaker 00: It's not like the issue was a surprise. [00:19:57] Speaker 00: The defense counsel didn't know what Judge Johnson was getting at. [00:20:02] Speaker 00: Everyone knew, I think. [00:20:05] Speaker 00: The other thing I would like to say is on the meth, in terms of referring to the meth guideline, Judge Johnson didn't just adopt that guideline and say, this is now the guideline I'm using. [00:20:19] Speaker 00: He mentioned it in passing during his discussion as an illustration of how meth guidelines treat [00:20:26] Speaker 00: a similarly serious quantity of math more seriously than fentanyl. [00:20:33] Speaker 00: And he evidenced his awareness of the proper guideline range by citing it. [00:20:39] Speaker 00: And I don't think there's any ground on this record, at least, that one could say that he forgot about that and adopted a new guideline range. [00:20:50] Speaker 00: And I think this is one area where even if you say this is substantive reasonable [00:20:56] Speaker 00: preservation requirement, a failure to develop the record can still interfere with this court's ability to review a claim that the district court was getting something wrong if it's not clear that he's getting it wrong. [00:21:09] Speaker 03: You used the phrase similar quantity. [00:21:14] Speaker 03: Did you, Johnson, actually use those exact words, similar amount, similar quantity? [00:21:22] Speaker 03: I don't remember him saying that. [00:21:25] Speaker 03: I could be wrong. [00:21:26] Speaker 03: And the reason I'm asking is because of your opponent's argument about the dosage. [00:21:35] Speaker 03: And if the judge is not comparing apples and apples, but apples and oranges, orange is a lot more insidious than the apples. [00:21:47] Speaker 03: But you consume a quite different amount of the orange versus the apple. [00:21:54] Speaker 03: I'm not sure that it makes sense to determine whether or not the orange is a worse fruit than the apple. [00:22:02] Speaker 00: Right. [00:22:02] Speaker 00: He talked about the converted quantity. [00:22:05] Speaker 00: Now, there's tables that are used in the sentencing guideline to determine whether what, for example, they might say 50 pounds of marijuana is a serious [00:22:19] Speaker 00: at least in the guideline, in the Sentencing Commission's view, as a much lesser quantity of another drug, and because that other drug is much more potent or more addictive and so forth. [00:22:31] Speaker 00: So I don't think he said that they used the exact quantity, but he referred to the conversion tables, he referred to it as a converted quantity. [00:22:40] Speaker 00: And I meant only to say that it was a similarly serious quantity, not the exact same. [00:22:46] Speaker 04: So he converted the fentanyl to so many, it's usually done in terms of marijuana, is it not? [00:22:54] Speaker 04: Or what was it? [00:22:54] Speaker 04: It comes up then, yes. [00:22:56] Speaker 04: So the fentanyl quantity was in the guidelines, or no, yeah, in the guidelines, an equivalent to the quantity of meth that he used, is that right? [00:23:12] Speaker 04: So he made that cross-reference, is that correct? [00:23:16] Speaker 00: Yes, he was trying to make, I think in his mind, what it appears, I don't know what was in his mind, but what appears on the transcript is an effort to say if you had been convicted of a similar amount, a similarly serious amount of meth, then you would have received a much higher, you would have had a much higher guy's life. [00:23:38] Speaker 04: He wasn't saying if it had been [00:23:41] Speaker 04: three milligrams of meth versus three milligrams of fentanyl, there was already a conversion factor of what's the similar serious amount, similarly serious amount. [00:23:53] Speaker 00: Right, he was referring to a pre-existing conversion factor. [00:23:56] Speaker 00: Okay. [00:23:58] Speaker 00: The only other point I really wanted to make is that I think that his explanation for the at least [00:24:07] Speaker 00: dissatisfaction with the fentanyl guideline was more than sufficient, that fentanyl is killing more people than meth. [00:24:15] Speaker 00: And I think that's enough. [00:24:18] Speaker 00: Now, I don't think he had to show that the meth guideline is the platonic form of a guideline or anything like that. [00:24:23] Speaker 01: But why wasn't more required, given the extent of the variance here? [00:24:28] Speaker 00: Why wasn't more discussion of the meth guideline? [00:24:30] Speaker 01: Why wasn't more discussion of the reason for his policy disagreement required, given the extent of the variance? [00:24:38] Speaker 00: I don't think more was required because that explanation that he did give is a very logical reason to vary upwards. [00:24:47] Speaker 00: If you have a drug that is regarded by the guidelines as less serious than another drug, but it's killing more people than that other drug, then there's a logical disconnect. [00:25:02] Speaker 00: And I think that's all he had to show. [00:25:04] Speaker 00: Now, that's not all he did rely on. [00:25:07] Speaker 00: Through his discussion, you realize on the criminal history and a number of other factors to justify the upward variance. [00:25:13] Speaker 00: So it's not the sole basis for his upward variance. [00:25:18] Speaker 00: I'm also prepared to answer questions about the first issue, if you would like. [00:25:22] Speaker 00: But if not, that's really all I have to say. [00:25:26] Speaker 03: Do you have a question? [00:25:28] Speaker 03: I just have one question on the other issue. [00:25:31] Speaker 03: And it's only about prong three. [00:25:34] Speaker 03: So as I understand it, your argument at prong three on the first issue is that if this was relevant conduct, then the base offense level would have been 43 before the acceptance or responsibility. [00:25:54] Speaker 03: It would have been a higher guideline range, I think, with a floor of 293 months. [00:25:59] Speaker 03: And the only question I have, [00:26:04] Speaker 03: is that's all well and good, and it might even be a good argument of prong for, but I don't get how it affects the requirement for concurrent sentences under 5G 1.3. [00:26:20] Speaker 03: Maybe he would have had a harsher sentence, and so maybe one might question about whether or not the public would have an outcry that he got a more lenient sentence than he should have gotten. [00:26:33] Speaker 03: But that still has nothing to do with the applicability of 5G 1.3, does it? [00:26:39] Speaker 03: And that's the whole argument that the defendant has. [00:26:42] Speaker 00: Right. [00:26:44] Speaker 00: Well, I think the standard that this court has set in the past for PROM 3 arguments is that there has to be showing that the sentence would have possibly, there's reasonable probability that the sentence would have been lowered. [00:26:58] Speaker 03: And so to my mind- And that's what we're talking about, the harshness of the sentences. [00:27:01] Speaker 03: But she's not talking about the harsh disincentives. [00:27:03] Speaker 03: She's talking about the fact that it was consecutive as opposed to concurrent. [00:27:09] Speaker 00: Right. [00:27:09] Speaker 00: But I think there, I would say, I think the district court did exercise its discretion. [00:27:15] Speaker 00: It didn't consider 5G 1.3. [00:27:17] Speaker 00: That's true. [00:27:18] Speaker 00: But it did consider whether to run them concurrent or consecutive. [00:27:24] Speaker 00: And I think it's speculative on the prom 3. [00:27:27] Speaker 03: Well, I don't totally get that. [00:27:29] Speaker 03: I probably did a poor job of asking that question because that's not what I meant to ask you. [00:27:34] Speaker 03: What I really meant to ask you was not whether or not you could defeat Prong 3, it's whether or not this one argument that the applicability of 2A1.1 would foreclose the defendant's reliance on 5G1.3 as a requirement for concurrent sentences. [00:27:52] Speaker 03: Because I don't see, they seem to be ships passing in the night, [00:27:57] Speaker 03: The applicability of 2A1.1 in your argument about the exclusion for grouping, for offenses that are in part two, you know, that all makes sense to me about why you argue that the defendant would have had an even harsher sentence if the burger were actually relevant conduct. [00:28:15] Speaker 03: But I just don't get that part of your argument that the applicability of 2A1.1 would foreclose reliance on 5G1.3 for concurrent sentences. [00:28:29] Speaker 00: It's not that I think it would foreclose it. [00:28:32] Speaker 00: And I think that's the best. [00:28:35] Speaker 00: I think the point you're raising is the best point that someone could raise against my point three argument, which is that if I understand it correctly, that the district court, if it was relevant conduct, the district court would still have had to face 5G, consider 5G 1.3C, and it didn't do so. [00:28:54] Speaker 00: And so just because there would have been a guideline range, [00:28:58] Speaker 00: that might have been higher that still wouldn't have foreclosed the concurrent sentence being imposed. [00:29:04] Speaker 00: So I think that's a reasonable argument against my Prom 3 argument. [00:29:09] Speaker 00: I think the Prom 3 argument I'm making is that it's speculative that he would have gotten a concurrent sentence rather when the judge already considered that, considered that issue. [00:29:22] Speaker 00: Now you might say, well, it's a different guideline range, so maybe that would have affected his decision. [00:29:27] Speaker 00: But I don't think you have to, even if you all disagree with me on the point, on the prong three argument, if you agree with me on either one, two, or four, I think you don't have to consider that. [00:29:39] Speaker 00: So are there any other questions about that? [00:29:42] Speaker 00: I can answer. [00:29:44] Speaker 00: All right. [00:29:44] Speaker 00: Well, thank you. [00:29:45] Speaker 00: I ask that you affirm. [00:29:49] Speaker 04: I'm pretty lenient this way. [00:29:50] Speaker 04: 30 seconds max. [00:29:56] Speaker 02: I just would like to point out that the methamphetamine guideline itself suffers from its own critiques. [00:30:05] Speaker 02: And so the judge's use of it as a comparator is sort of its trading one guideline that doesn't adequately capture harms for another. [00:30:14] Speaker 02: And his invocation of the other case, Jimenez-Marquez, [00:30:18] Speaker 02: was limited to its expression of the view about the dangerousness and the difference between the two. [00:30:23] Speaker 02: It wasn't about whether methamphetamine actual was a good comparator. [00:30:28] Speaker 02: So there's still no explanation there. [00:30:30] Speaker 02: Thank you. [00:30:33] Speaker 04: Thank you, counsel. [00:30:33] Speaker 04: Case is submitted. [00:30:34] Speaker 04: Counselor, excuse.