[00:00:00] Speaker 02:
Please be seated.

[00:00:01] Speaker 02:
Good morning.

[00:00:03] Speaker 02:
Before we begin, just one housekeeping matter.

[00:00:07] Speaker 02:
We'll take a brief break after the second case that will be orally heard today.

[00:00:13] Speaker 02:
Actually, we have five on the list, but only four will be orally heard.

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And so the break will occur after Peterson versus Kirch.

[00:00:22] Speaker 02:
With that housekeeping matter, we're ready for the first case, which is 24-2069.

[00:00:29] Speaker 02:
United States versus Han.

[00:00:32] Speaker 02:
Councilor Pellin, if you would make your appearance and proceed.

[00:00:35] Speaker 04:
Thank you, Your Honor.

[00:00:36] Speaker 04:
I'm going to do my best to reserve two minutes, although I'm notoriously bad at doing so.

[00:00:42] Speaker 04:
Marcus Han is actually innocent of the most serious charges he faced when he was sentenced in 2001.

[00:00:48] Speaker 04:
He therefore is entitled to pursue this 2020 2255 proceeding to conclusion and receive habeas relief.

[00:00:57] Speaker 04:
Reviewing de novo, the court should reverse.

[00:01:01] Speaker 04:
My goal here today would be to start touching briefly on the Sessions versus de Maillat issue that relates to the charges that Mr. Hahn is challenging, and then tackle the Boosley issue with as much time as I can, particularly focusing on the measure of seriousness that the court should apply in evaluating whether there are more serious charges.

[00:01:20] Speaker 02:
Is my understanding correct?

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that you really do have to make it through the issue related to Demiah before Boozley even becomes relevant?

[00:01:32] Speaker 04:
That's correct, Your Honor.

[00:01:34] Speaker 04:
It's a threshold.

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But I think that this court, in its opinion, granting the certificate of appealability, did a good job summarizing the state of case law and the application of that case law to the relevant predicate charge in this case, and went

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but in light of the procedural posture at the certificate of appealability stage, stopped short of making a final ruling on that issue.

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Under both the plain language of the relevant New Mexico criminal sexual contact statute and under all the law that existed in this circuit and elsewhere at the time of Mr. Hahn's sentencing, it is more likely than not that the district court would have relied on the residual clause to determine that the predicate crime qualified as a crime of violence.

[00:02:18] Speaker 04:
Starting with the elements of the crime, criminal sexual contact in New Mexico allows a jury to convict for three reasons, touching, use of force, which would meet the elements clause, or causing to touch.

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And at the time of the decision in 2001 when Mr. Hahn was sentenced, all the court's precedent relied on the residual clause, which makes sense because when you have a

[00:02:48] Speaker 04:
a statute that criminalizes touching or causing to touch, there isn't a physical force element, even without it being defined as it was subsequently.

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And so what would have made it a crime of violence at that time was the substantial risk of physical force.

[00:03:04] Speaker 02:
What does United States versus Posse, P-A-S-S-I, tell us?

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And how does that inform what's going on here?

[00:03:12] Speaker 04:
Your Honor, I'm going to confess that I'm not as familiar with Posse as I am with the three cases that the court had pointed to.

[00:03:18] Speaker 02:
The reason, well, continue with your argument and I'll follow.

[00:03:22] Speaker 02:
The reason I was referring to it was United States v. Beehill, which is a case that was also, I think, relevant to this issue, cites Posse.

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And Posse is a case that would have been before the district court in terms of timeframe at the time of the sentencing here.

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And that case seems to support the notion that the Elements Clause could have been relied upon here is the reason I'm asking.

[00:03:46] Speaker 04:
And Your Honor, I apologize.

[00:03:48] Speaker 04:
It's just not a case that the government focused on Vigil and Pierce.

[00:03:51] Speaker 02:
Well, they talk about Vigil.

[00:03:52] Speaker 02:
Yes, I will.

[00:03:54] Speaker 02:
The point I'm getting at is that Vigil, although it's subsequent to the time of the sentencing, also seems to be informed by precedent that existed before it.

[00:04:04] Speaker 02:
So what's your view on Vigil?

[00:04:06] Speaker 04:
Your Honor, first of all, under Snyder, the court doesn't look at post-sentencing decisions, but more importantly... Hence my reference to Posse.

[00:04:15] Speaker 02:
I understand, Your Honor.

[00:04:16] Speaker 04:
But what I want to focus on here is that the standard is more likely than not.

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And so it can be possible that the court could have reached to Vigil and followed that type of analysis to force this into the Elements Clause, but it's in no way a natural conclusion to reach because at that time, this court in 2000 had said,

[00:04:35] Speaker 04:
in Reyes Pena had looked at both Coronado Cervantes and Reyes Castro and had said, these are residual clause cases.

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And in, I think it's Coronado Cervantes, the court had said every appellate decision the court had found relied on the residual clause.

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And then when you look at the elements of the crime, the natural flow here would be to look at substantial risk.

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There's no reason that Judge Parker would have had to struggle with

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whether substantial risk was sufficient to qualify the crime as a crime of violence, because at that time, Section A and Section B of Section 16 were both on equal footing.

[00:05:13] Speaker 04:
And so if you look at what the more likely scenario would have been, if you're the district judge and you pull up a case that says every appellate decision that we found qualifies these types of crimes under the residual clause, and you look at the plain language of the statute and you see that it involves

[00:05:31] Speaker 04:
No requirement for physical force as the least of the conduct criminalized.

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The natural assumption to make, and the more likely assumption to make, would be that Judge Parker relied on the residual clause.

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There just wouldn't have been a reason for them to debate it at the time.

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And the force of the authority from this court and the plain language of the statute both say residual clause would have been the straightforward route.

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Why pause and go through the kind of tortured analysis that the Hill requires?

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which I would also note was very short-lived, because later in 2003, when that case was decided, this court held that physical force requires violent force, or the equivalent language, predicting what the Supreme Court would decide in 2010.

[00:06:14] Speaker 02:
But of course, what does that do for us?

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That doesn't do anything for us right now.

[00:06:18] Speaker 02:
I mean, we're talking about the background environment that existed at the time, right?

[00:06:22] Speaker 04:
Yes.

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And so I guess the point I would emphasize, Your Honor, is that even if Passy says that it could have been

[00:06:29] Speaker 04:
that the district court looked at the elements clause, the more likely answer under both the language of the New Mexico predicate statute and the force of authority from this court and just a reading of section 16 all says that it would have been a residual clause case.

[00:06:45] Speaker 02:
The concept of assault on or contact with a minor, it seems to me, becomes significant both in Vigil and in Posse.

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the notion that inherent in that interaction is force.

[00:07:01] Speaker 02:
Well, I mean, what do you do with that?

[00:07:04] Speaker 04:
Your Honor, I think you look at what the court did a couple months later and said that that would not be adequate.

[00:07:08] Speaker 02:
Well, I mean, a couple months later really doesn't do us any good.

[00:07:12] Speaker 02:
We're sitting here, and the court is trying to decide what it should do at the time.

[00:07:16] Speaker 02:
Let me ask you to shift a little bit.

[00:07:19] Speaker 02:
Yes.

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There's a language in the cases, and at least in this area of litigation,

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that even though we're under more likely than not, there's reference to the notion that the district court would have been required to apply the residual clause at the time.

[00:07:36] Speaker 02:
What do we do with that language?

[00:07:38] Speaker 04:
Your Honor, I think you go back to the rule as it was announced in the earlier case and recognize that the more likely than not standard has to mean what it means in common legal parlance.

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And that was the rule that was established.

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And the fact that in later cases, panels may have used

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looser language to describe what was required rather than the actual legal standard that we know and use, which is more likely than not.

[00:08:02] Speaker 04:
If the court had meant when it established the rule to say that a defendant must show that the only way that the crime would qualify or equivalent to that or something more than more likely than not, it would have established that rule.

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And there's been no overruling of the more likely than not standard.

[00:08:19] Speaker 02:
Well, we also haven't overruled those cases that use the language which I'm not going to refer to as loose, but the language that says that the district court would have been required to apply the residual clause in a certain situation.

[00:08:32] Speaker 02:
And that would be how you would make your showing of proof.

[00:08:36] Speaker 02:
I mean, you look quizzical.

[00:08:39] Speaker 02:
Do you follow where I'm coming from?

[00:08:41] Speaker 04:
I understand, Your Honor.

[00:08:42] Speaker 04:
I guess I'm focused on the concept

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an earlier panel decision would have bind a subsequent decision.

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And so the articulation of the rule, absent an en banc panel overturning it, would remain the same.

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And to elevate more likely than not to the court would have to use a standard, to me, seems like it would be a fundamental change to the court's precedent.

[00:09:03] Speaker 02:
Well, I won't belabor the point.

[00:09:05] Speaker 02:
But I mean, the issue of an interest, I'm familiar with the interest circuit conflict rule.

[00:09:12] Speaker 02:
The question is really whether there is a conflict and whether those two things can be harmonized and whether our subsequent cases have attempted to do that.

[00:09:21] Speaker 02:
But let's just for the moment, so that we can pursue the argument, let's stick with this more likely than not formulation divorce from this other stuff and why in light of the cases that focus on the child

[00:09:38] Speaker 02:
component of this, the disparity in power, why would that not have some resonance in this context?

[00:09:47] Speaker 04:
Your Honor, both because of the prior decisions of the Court recognizing that these are residual clause cases, but also because as the Fourth Circuit recognized when it overturned Pierce, those are really talking about a substantial risk of force in a different language.

[00:10:02] Speaker 04:
Implied force, constructive force,

[00:10:03] Speaker 04:
That's very different than the type of force that's required to qualify as a crime of violence.

[00:10:08] Speaker 04:
And so when the court decided v Hill, it looked at this concept in the alternative, having already determined that it would have qualified as a residual clause case.

[00:10:21] Speaker 04:
And you have this concept of force that both doesn't survive under today's law and doesn't make sense that it would have been the route Judge Parker

[00:10:29] Speaker 04:
would have chosen to take.

[00:10:30] Speaker 04:
It's more likely that he would have taken the obvious path, which would be substantial risk of harm.

[00:10:35] Speaker 02:
And even divorced from the required to formulation, which does exist, VHIL applied it in the alternative.

[00:10:44] Speaker 02:
Well, in the alternative doesn't get you over the hump.

[00:10:47] Speaker 02:
And I know it's a subsequent case, but the point I'm getting at is if the concept

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is as such that the court could have said in the alternative, I would apply the elements clause, you've got to show us that it would not have been, in essence, a viable alternative.

[00:11:04] Speaker 02:
It would have been more likely that the court would have chosen to do one over the other.

[00:11:08] Speaker 02:
If they're in equipoise, you lose, right?

[00:11:11] Speaker 02:
Equipoisin are more likely than not, I would lose.

[00:11:14] Speaker 02:
OK.

[00:11:15] Speaker 02:
So why does the analysis in Vigil not suggest that they were in equipoise and they were just

[00:11:21] Speaker 02:
alternatives that the court could have chosen.

[00:11:23] Speaker 04:
Both because the court had previously so clearly articulated that the cleanest route to categorize a criminal sexual contact statute as a crime of violence was through the residual clause.

[00:11:36] Speaker 04:
And if, assume Judge Parker's going into sentencing and he looks at the state of the law and he sees Reyes Castro, Coronado Cervantes, and Reyes, Marina, maybe

[00:11:51] Speaker 04:
getting the last name wrong, those are all going to point to what common sense would tell you in this area if you looked at section 16.

[00:11:59] Speaker 04:
Why would you force it into the elements clause when you have a substantial risk of physical force?

[00:12:04] Speaker 04:
Because the substantial risk of physical force route, if you had no precedent, it's a much more straightforward route.

[00:12:11] Speaker 04:
I mean, it's muddied by the fact that we're dealing with a conviction here and we're on habeas, but the reality is that's a very straightforward

[00:12:19] Speaker 04:
application of Section 16 to the New Mexico statute.

[00:12:24] Speaker 04:
There's nothing about that statute that says physical force is the least of the acts criminalized.

[00:12:29] Speaker 04:
And so you'd say, well, I don't need to belabor that point because Section B says that as long as there's a substantial risk, and in criminal sexual contact, there is a substantial risk.

[00:12:38] Speaker 04:
And so when you're looking at more likely than not, assuming that they would be in equal poise under the state of the law as it existed or under the language of the statute,

[00:12:48] Speaker 04:
I just don't see how it would get you to equal poison that area.

[00:12:52] Speaker 04:
Can I ask you to focus on the Boosley issue also?

[00:12:54] Speaker 04:
Yes.

[00:12:55] Speaker 04:
And on that, Your Honor, the most important thing I'd like to focus on is the open question of the method of determining seriousness.

[00:13:04] Speaker 04:
Because this court hasn't done it, and the other circuits are coming at it at Boosley from a range of different perspectives.

[00:13:14] Speaker 01:
You lose unless we measure severity using the guidelines, don't you?

[00:13:22] Speaker 04:
Not necessarily, Your Honor, because then the second question would be, do you apply Boosley to equally serious?

[00:13:28] Speaker 01:
Well, right.

[00:13:29] Speaker 01:
OK.

[00:13:30] Speaker 01:
You don't have to reach that question if we go your route.

[00:13:34] Speaker 04:
Right.

[00:13:34] Speaker 04:
And I think the correct way to read Boosley would be, you start out and you determine where their dismiss charge is as part of the plea.

[00:13:41] Speaker 04:
We have that here.

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Then you evaluate the seriousness of them.

[00:13:45] Speaker 04:
Judge Garland's decision in CASO articulates the only principles that really would make the Boosley rule make sense.

[00:13:51] Speaker 04:
It's a difficult case because there's not a lot of explanation to Justice Rehnquist's imposition of the more serious charges.

[00:13:58] Speaker 04:
But the guidelines are the only metric that provides you information about what would have dictated the negotiations around a plea.

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And there has to be some compelling reason to require a defendant

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to show innocence of a crime to which he's neither pleaded guilty nor been convicted.

[00:14:17] Speaker 04:
And so you have to be looking at what was the nature of the agreement that was reached.

[00:14:21] Speaker 04:
I think it's difficult to understand why you're making people show innocence of charges for which they haven't been convicted.

[00:14:28] Speaker 04:
But the guidelines are the metric that give you information that would have been relevant.

[00:14:32] Speaker 04:
Congress's statutory maximums and even statutory minimums, which are incorporated into the guidelines analysis,

[00:14:39] Speaker 04:
don't give you any relevant information.

[00:14:41] Speaker 04:
And so before adopting that metric, I would ask the court to very seriously consider, what's the principle that motivates Boosley?

[00:14:49] Speaker 04:
And then determine what the rule is that actually furthers that purpose.

[00:14:54] Speaker 04:
And that would point to the guidelines.

[00:14:57] Speaker 03:
Did Mr. Hahn make the guidelines argument in the district court?

[00:15:02] Speaker 04:
Your Honor, he did not expressly articulate

[00:15:05] Speaker 04:
This far down in the analysis, I'm out of time.

[00:15:08] Speaker 04:
Can I answer?

[00:15:09] Speaker 04:
Of course.

[00:15:11] Speaker 04:
He didn't say the better metric is the guidelines.

[00:15:13] Speaker 04:
But what he did do is he cited CASO.

[00:15:16] Speaker 04:
He consistently argued that the district court needed to consider these less serious charges.

[00:15:21] Speaker 04:
And if you look at the, I've got a district court page reference, DNM 103 and 104, gives you a view of the lengths he went to as an unrepresented party to articulate the issues.

[00:15:33] Speaker 04:
As a prisoner, he doesn't even have access to his pre-sentence investigation report.

[00:15:38] Speaker 04:
It was required for me to do what may not have even been an entirely perfect analysis of the guidelines, but they do show there's a dramatic disparity between the 841 charges and what would have happened if you substituted the 2251 charges.

[00:15:52] Speaker 01:
And what about our COA that we granted?

[00:15:55] Speaker 01:
It doesn't mention this particular issue either in terms of the distinction between the guidelines and the statutory limits.

[00:16:04] Speaker 04:
The COA does not, Your Honor, but it's implicit in the rule, in the COA granting Mr. Hahn the opportunity to pursue a claim that the district court erred in applying Boosley.

[00:16:19] Speaker 04:
And I don't remember the exact language.

[00:16:21] Speaker 04:
But the district court got it wrong in that.

[00:16:23] Speaker 04:
Moreover, I would ask the court to look at United States versus Baker before shutting the door, because that case allows an expansion of the COA if there's room for reasonable debate among jurists.

[00:16:35] Speaker 04:
And I think there certainly would be here.

[00:16:38] Speaker 04:
And as I predicted, I failed to preserve time for rebuttal, but I appreciate your time here this morning.

[00:16:43] Speaker 04:
We'll give you a minute, counsel.

[00:16:45] Speaker 04:
Oh, thank you.

[00:16:47] Speaker 00:
Good morning, Your Honors.

[00:16:48] Speaker 00:
May it please the court, Tiffany Walters for the United States.

[00:16:52] Speaker 00:
I'd like to start by refocusing on the procedural posture in which Han finds himself.

[00:16:56] Speaker 00:
He faces two threshold inquiries in this case.

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First, he needs to show to overcome his second or successive bar that his claim is grounded, is based on Demiah.

[00:17:07] Speaker 00:
But also, because his claim is untimely, even if he were able to do that, he would also have to show that he could satisfy the extremely demanding and rarely satisfied actual innocence exception.

[00:17:22] Speaker 00:
This appeal presents the question, actual innocence of what?

[00:17:26] Speaker 00:
In this case, Han made a bargain.

[00:17:28] Speaker 00:
He pleaded guilty to seven counts, and in exchange, the government dismissed nine counts that he would have otherwise had to face trial on.

[00:17:39] Speaker 00:
And two of those counts carried a 10-year mandatory minimum, which is really a pivotal driver in how parties plea bargain.

[00:17:49] Speaker 00:
In the context of the guilty plea, Boosley tells us that at a minimum, Han must demonstrate that he is actually innocent of his 841 counts plus any more serious counts.

[00:17:58] Speaker 00:
And here, because of the mandatory minimum in the 2251 charges, those are the most serious counts, and considered cumulatively with the seven counts.

[00:18:08] Speaker 01:
We're trying to basically recreate the plea bargaining process with the charges dropped now that he was actually pled to, and in recreating it,

[00:18:24] Speaker 01:
We don't really recreate it by focusing on the statutory limitations.

[00:18:30] Speaker 01:
That's not the focus of please.

[00:18:34] Speaker 01:
And why would it be the focus here?

[00:18:36] Speaker 01:
Why wouldn't we look at what the guideline calculation would have been on the more serious offenses, just as Bowsley told us to do?

[00:18:47] Speaker 01:
That's what would have happened had these charges not been there, had they not been part of the

[00:18:53] Speaker 01:
plea negotiation process.

[00:18:56] Speaker 00:
I would respectfully disagree on mandatory minimums because I believe even with the guidelines, mandatory minimums control and they would control the district court's discretion in sentencing.

[00:19:05] Speaker 00:
And so those actually play quite a strong role in negotiations.

[00:19:11] Speaker 01:
They control, but they don't determine the sentencing guideline range, which is what the parties generally, both the government and the defendant rely on in considering whether to plea.

[00:19:22] Speaker 01:
What's that sentencing guideline range going to be?

[00:19:26] Speaker 00:
Certainly that is one factor, but I do think... It's a huge factor.

[00:19:29] Speaker 00:
It's a huge factor.

[00:19:30] Speaker 00:
But as our mandatory minimums, because even within that sentencing guidelines, the district court cannot go below that.

[00:19:37] Speaker 00:
The defendant cannot ask for a downward variance.

[00:19:40] Speaker 00:
And because of that, I mean, we see this in a number of these cases.

[00:19:44] Speaker 00:
They're revolving around 924C cases where there is a mandatory minimum in the Sixth Circuit case, the Seventh Circuit case.

[00:19:51] Speaker 00:
So these are really significant issues.

[00:19:54] Speaker 00:
In addition to the waiver issue, which I'll come back to and we still maintain that, I think guidelines present a real challenge because what we have is a situation like here.

[00:20:03] Speaker 00:
We're two decades down the road.

[00:20:05] Speaker 00:
We're trying to recreate what the sentencing guideline calculation would have been.

[00:20:09] Speaker 00:
Did anybody challenge that?

[00:20:10] Speaker 01:
Do you challenge what that would have been here?

[00:20:13] Speaker 01:
I didn't get the impression it was all that difficult here.

[00:20:17] Speaker 01:
And everybody seems to agree on what it would have been.

[00:20:20] Speaker 00:
I don't disagree that it likely would have been lower, but I think then we have to put ourselves back on it.

[00:20:26] Speaker 01:
Well, you're suggesting that it's going to be so complicated to determine this guideline range.

[00:20:30] Speaker 01:
I'm not sure that generally that's going to be true.

[00:20:33] Speaker 00:
I think in this case, first you would be able to get the base offense level, but you'd have to figure out specific offense characteristics.

[00:20:39] Speaker 01:
In this case, perhaps we can, but that's not going to be true in all cases because it's not going to be covered in the PSR if the defendant didn't... And if we're trying to recreate the... I guess I'm not sure why that even... I understand that's a point that you make in your brief, that it could be a complex process, it could be a difficult process in some cases, but I'm not sure

[00:20:56] Speaker 01:
that should be guiding our decision when we're trying to put this defendant back in the place.

[00:21:05] Speaker 01:
that he would have been.

[00:21:06] Speaker 01:
We're going to say, oh, well, it's too difficult for us to do that.

[00:21:11] Speaker 01:
So we're going to bypass it.

[00:21:12] Speaker 00:
Well, and I think if we went back to where the defendant would have been in this case, we don't know whether or not the court would have departed.

[00:21:18] Speaker 00:
If we look to the sentencing transcript, we hear the court talking about, and in this case, there was a second case involving drug and guns.

[00:21:24] Speaker 00:
The court was heavily focused on the fact that it believed that the defendant would be in prison for the rest of his life.

[00:21:30] Speaker 00:
And that's how it placed the sentence within the guideline range that it did.

[00:21:35] Speaker 00:
So it's hard to say how that would have played out.

[00:21:38] Speaker 00:
Had the court believed that it was looking at a guideline range that went down as low as 12 and a half years for the sexual assaults of seven children, would the court have departed?

[00:21:48] Speaker 00:
I don't think we can know that.

[00:21:50] Speaker 00:
There's so many variables.

[00:21:51] Speaker 00:
And in the context of the 2255s, we're in collateral review.

[00:21:55] Speaker 00:
The concepts of finality and judicial efficiency are important.

[00:21:59] Speaker 00:
So the court is looking at this just to determine whether or not it should even hear an untimely motion.

[00:22:04] Speaker 00:
And so to require the district court to conduct basically a mini-sentencing to even determine whether or not it can get in the position

[00:22:12] Speaker 00:
of looking at the claim is a significant burden on the district court.

[00:22:18] Speaker 00:
And so that's another reason why looking at least at the mandatory minimums would provide a much more administrable standard for the court to look at.

[00:22:28] Speaker 00:
In addition, we have the complication of the situation here, where we have a whole number of counts that he pled guilty to, as well as a number of counts that were dismissed.

[00:22:37] Speaker 00:
The Fifth Circuit decision in Scruggs provides another example of how the court might look at dealing with this cumulative effect of the charges.

[00:22:46] Speaker 00:
So in this case, we had

[00:22:49] Speaker 00:
seven counts which were foregone.

[00:22:51] Speaker 00:
And at some point, I mean, it might not make sense to just compare the top statutory maximum on one side with the top statutory maximum of the foregone charges.

[00:23:01] Speaker 00:
It doesn't take into account the number of other charges that were dismissed.

[00:23:06] Speaker 00:
But accumulating them would.

[00:23:07] Speaker 00:
And so that's another perspective the court could take to find that the charges that were foregone were more serious in this case.

[00:23:16] Speaker 01:
Yeah, I guess I still question

[00:23:18] Speaker 01:
I mean, Bowsley tells us we've got to recreate the outcome.

[00:23:22] Speaker 01:
And they don't say you have to recreate it in every single possible scenario that might have come up.

[00:23:29] Speaker 01:
You've got to do the best you can in this scenario.

[00:23:31] Speaker 01:
And I think if you're going to anticipate that any possible issue that might have arisen, I don't think that's what Bowsley's talking about.

[00:23:41] Speaker 00:
I think that Bowsie doesn't give us a ton of guidance.

[00:23:43] Speaker 00:
They don't.

[00:23:44] Speaker 00:
That's sort of the difficulty.

[00:23:45] Speaker 01:
But can recreate the outcome, which they explicitly said they're trying to do, I just don't think it's possible to take the approach you're taking and do that.

[00:23:58] Speaker 00:
I think there's challenges to recreating the outcome, regardless of what path this court chooses.

[00:24:02] Speaker 00:
And none of them are going to be perfect.

[00:24:03] Speaker 00:
I think looking at least to mandatory minimums, which truly do drive a lot of plea bargains, is a

[00:24:10] Speaker 00:
fair place to look in terms of evaluating what is the most serious charge.

[00:24:16] Speaker 00:
So I think that that is a place that the court can consider.

[00:24:19] Speaker 00:
And then in this case, we have the additional issue with the guidelines that it truly was waived.

[00:24:24] Speaker 00:
And we're in the context of a 2255.

[00:24:26] Speaker 00:
This is not plain error review.

[00:24:28] Speaker 00:
As Judge Holmes discussed in his concurrence in Harmon v. Sharp

[00:24:32] Speaker 00:
this is a situation where the court doesn't consider it at all.

[00:24:37] Speaker 00:
And here, not only did the defendant not raise the guidelines issue, he specifically told the district court to look to the statutory penalties in his argument.

[00:24:45] Speaker 00:
He said, look to the presence or absence of a fine.

[00:24:49] Speaker 00:
And so for the district court, the district court did not have the guideline issue before it and had no way to know that it should have created this argument for the pro se

[00:24:59] Speaker 00:
movement in that situation.

[00:25:01] Speaker 00:
So it's really, in the context of a 2255 on collateral review, the court should not reach that question simply because it is waived and the court cannot consider it.

[00:25:16] Speaker 00:
I guess I would like to move to the actual demyah issue if the court doesn't have any other questions on actual innocence.

[00:25:23] Speaker 03:
And could you comment on whether we should excuse the statute of limitations here?

[00:25:29] Speaker 03:
or your rebuttal on that?

[00:25:32] Speaker 00:
The United States does not believe that this court should excuse statute of limitations because that turns on the actual innocence issue.

[00:25:40] Speaker 00:
Here we believe that the defendant

[00:25:44] Speaker 00:
Even if he can show that he's actually innocent of the 841 charges that are subject to the Demya claim, he cannot show that he's actually innocent of the 2251s that were dismissed in exchange for his plea of guilty.

[00:25:55] Speaker 00:
And those carry a mandatory minimum of 10 years and a maximum of 20 years, while the 841s have no mandatory minimum.

[00:26:03] Speaker 00:
In addition to that, there's the total of seven charges that were dismissed, which I think cumulatively is something like 90 years if you total up the statutory max.

[00:26:12] Speaker 00:
compared to the 60 years with the three 841s that are challenged.

[00:26:18] Speaker 00:
And unless the defendant can pass through that actual innocence portal both as to the 841s and any more serious charges, he cannot have his untimely claim heard.

[00:26:31] Speaker 00:
And even if this court were to find that they were equally serious, the United States would urge the court to adopt the rule that both the Sixth and the Seventh Circuit has, and of which the D.C.

[00:26:40] Speaker 00:
Circuit has approved,

[00:26:42] Speaker 00:
and find that this applies equally to equally serious charges.

[00:26:47] Speaker 00:
And I think that makes a lot of sense in this context because, as the court has highlighted, it is a difficult inquiry.

[00:26:53] Speaker 02:
Well, let me be clear on that.

[00:26:54] Speaker 02:
You're saying one of the COA issues related to equally serious charges, but it was framed, as I understand it, as a question.

[00:27:05] Speaker 02:
Boosley speaks of more serious.

[00:27:08] Speaker 02:
So are you conceding that equally serious charges should be in the mix too, or are you saying they should be?

[00:27:15] Speaker 00:
The United States position is that there are more serious charges in this case, but if the court once believes that they are instead equally serious, that then the court should extend the Boosley rule to equally serious charges as the Sixth and Seventh Circuit have done.

[00:27:28] Speaker 02:
Understand.

[00:27:31] Speaker 00:
And equally serious charges, it makes sense to extend it in that context because

[00:27:35] Speaker 00:
We have a situation where had the United States known of the infirmity and the charges, it would have switched to the equally serious charge.

[00:27:41] Speaker 00:
The defendant would be facing the same situation.

[00:27:44] Speaker 00:
There's no reason for the defendant to benefit from the bargain, which he's now seeking to get out from under by escaping any punishment on the equally serious charges that he would have otherwise had to face trial on.

[00:27:58] Speaker 02:
conceive of this case or at least the barriers that the defendant moving faces.

[00:28:05] Speaker 02:
One, you have to deal with the De Maia issue.

[00:28:07] Speaker 02:
Did the court in fact rely on the residual clause?

[00:28:11] Speaker 02:
Two, you have to deal with the Boosley issues or Bowsley issues.

[00:28:14] Speaker 02:
which would be one, the question of the more serious charges, and two, under your view, the equally serious charges.

[00:28:23] Speaker 02:
So there are three gates, at least, the defendant has to go through before he gets relief, right?

[00:28:27] Speaker 02:
Because he has to do the actual innocence as it relates to the statute of limitations.

[00:28:34] Speaker 00:
Correct.

[00:28:35] Speaker 00:
And perhaps even a fourth step, because you would have to show that he's actually innocent of 841 charges, which sort of

[00:28:40] Speaker 00:
is the same issue as the Demaya issue.

[00:28:42] Speaker 02:
Yeah, it's the same issue, so those are conflated.

[00:28:45] Speaker 02:
Right.

[00:28:45] Speaker 02:
Okay.

[00:28:49] Speaker 00:
If the Court has no further questions on the Demaya issue, then the United States would rest on its brief.

[00:28:55] Speaker 00:
Thank you for your time.

[00:28:57] Speaker 02:
Thank you, Counsel.

[00:29:07] Speaker 04:
Briefly, I'd like to touch on Judge Moritz's questions regarding the

[00:29:11] Speaker 04:
back and forth on the sentencing guidelines and whether they could be difficult.

[00:29:14] Speaker 04:
As a habeas petitioner, if there's difficulty in calculating the guidelines, that falls on the petitioner.

[00:29:20] Speaker 04:
And so in this case, it's straightforward.

[00:29:24] Speaker 04:
If you imagine some hyper-complicated sentencing where the guidelines are a mess, you still end up in a circumstance where it doesn't put the court adrift, it just means that the burden for the petitioner in a habeas context is higher.

[00:29:37] Speaker 04:
And so I think that resolves that issue.

[00:29:39] Speaker 04:
then I would ask the court again to just focus on, what is the principle motivating Boosley?

[00:29:45] Speaker 04:
Because you have to tie whatever the imposition is.

[00:29:48] Speaker 04:
This is an unusual circumstance where you are asking a defendant to show, having already met the requirement of showing actual innocence of charges that are underlying their sentence and leaving them in prison, to also show innocence of dismissed charges.

[00:30:03] Speaker 04:
And so there's got to be a tie between A and B. And I didn't hear the government articulate that.

[00:30:10] Speaker 02:
Thank you, counsel.

[00:30:11] Speaker 02:
Case is submitted.

[00:30:14] Speaker 03:
I need to comment.

[00:30:16] Speaker 03:
Maybe the first case I ever sat on involved Mr. Hahn back in 2003.

[00:30:20] Speaker 03:
So here we are.