[00:00:00] Speaker 03:
We'll turn to our last argument of the day, 25-6082, US versus Knowles.

[00:00:08] Speaker 04:
Good morning, Your Honors.

[00:00:09] Speaker 04:
May it please the court, Bailey Tulloch for the appellant, Jerry Wayne Knowles.

[00:00:14] Speaker 04:
In United States v. Allen, this court made clear that even though a district court has discretion to consider a defendant's unadjudicated, non-relevant conduct during sentencing, a district court abuses its discretion

[00:00:27] Speaker 04:
when it gives undue weight to that conduct in fashioning an upward variance, particularly a major upward variance.

[00:00:33] Speaker 03:
So if you're going to cite Alan for that, tell us about the facts there, because that was a really extraordinary case, was it not?

[00:00:41] Speaker 04:
Yes, it was.

[00:00:43] Speaker 03:
The judge sentenced him for stuff that wasn't charged, totally unrelated offense.

[00:00:49] Speaker 03:
That's right.

[00:00:50] Speaker 03:
So you state a principle there, but it's pretty limited in that case, you agree?

[00:00:55] Speaker 04:
I would agree that the facts are different from this case, but the principle... Very different.

[00:01:00] Speaker 04:
I agree, yes.

[00:01:01] Speaker 04:
But the principle that applies from that case, which is the structural problem we have here, fundamentally, the district court imposing a major upward variance based primarily on Mr. Noll's unadjudicated and non-relevant conduct.

[00:01:16] Speaker 00:
In Allen, we said the problem was that the court abandoned consideration of the guidelines.

[00:01:22] Speaker 00:
So I think you're colloquy with Judge Hart to agree that the facts are different.

[00:01:27] Speaker 00:
But I think the holding is also quite narrow, or it applies to a specific kind of error.

[00:01:35] Speaker 00:
And why do we have that here?

[00:01:37] Speaker 04:
I think the holding applies to the broad principle.

[00:01:40] Speaker 04:
And the court was certainly troubled by the fact that the district court in that case discarded the guideline range completely.

[00:01:46] Speaker 04:
But we do have the district court in this case

[00:01:49] Speaker 04:
calling the advisory guideline range grossly inadequate or grossly understating the offensive conviction without identifying what exactly it was about the offensive conviction itself that was so serious that distinguished Mr. Knoll's case from a garden variety fraud case, except for this unadjudicated, non-relevant conduct.

[00:02:09] Speaker 04:
So that's the issue here.

[00:02:11] Speaker 04:
And that's the principle that we draw from Allen.

[00:02:14] Speaker 03:
And you're saying the amount of the loss

[00:02:17] Speaker 03:
was non-adjudicated, totally irrelevant?

[00:02:21] Speaker 03:
You don't think it was part of the same scheme, same effort by the defendant?

[00:02:26] Speaker 04:
Are you referring to the amount of loss that was incurred as a result of the non-relevant conduct?

[00:02:32] Speaker 03:
I'm asking what you're referring to, and I think you're referring to the amount of the loss, the half million or million dollar loss.

[00:02:41] Speaker 04:
Yes.

[00:02:41] Speaker 04:
The amount of loss that I'm referring to is what was calculated in the guideline range.

[00:02:46] Speaker 04:
which was the 129, which accounted for all of the loans, but it did account for the collateral that Mr. Knowles sold.

[00:02:54] Speaker 04:
And under the guidelines, that's how that intended loss is calculated.

[00:02:58] Speaker 00:
I thought your argument was that even though you prevailed on the application of the gross receipts enhancement, you didn't get the gross receipts enhancement, that the court still considered the underlying conduct

[00:03:16] Speaker 00:
for that enhancement in its 3553A analysis.

[00:03:20] Speaker 00:
I thought you were contending that that was the over-reliance.

[00:03:24] Speaker 04:
No, Your Honor.

[00:03:25] Speaker 04:
The over-reliance, the gross receipts enhancement referred to the relevant conduct.

[00:03:30] Speaker 04:
So as to that particular enhancement, the district court did not look to non-relevant conduct.

[00:03:35] Speaker 04:
All of those objections had been resolved prior to the court's ruling on that issue.

[00:03:39] Speaker 00:
So you agree the court could look at that?

[00:03:41] Speaker 00:
The loss you're talking about is for what?

[00:03:44] Speaker 04:
Yes, it could.

[00:03:45] Speaker 04:
But the district court did not refer to that loss in its explanation.

[00:03:49] Speaker 04:
And this court has made clear that when we review for substantive reasonableness, we look to the district court's explanation.

[00:03:56] Speaker 04:
And that factor is missing in the explanation.

[00:03:59] Speaker 03:
I'm still confused.

[00:04:01] Speaker 03:
What did the court consider that it shouldn't have?

[00:04:05] Speaker 03:
Be very specific, not just say non-relevant conduct.

[00:04:10] Speaker 03:
What was the conduct that the court considered that it should not have considered?

[00:04:15] Speaker 04:
Absolutely, Your Honor.

[00:04:15] Speaker 04:
It's the conduct that was dismissed from the indictment, which the court, and I'll walk the court right now through the different instances where we see that.

[00:04:22] Speaker 03:
The conduct that he was charged with in the indictment but pursuant to the plea agreement was not charged.

[00:04:30] Speaker 03:
That's right.

[00:04:31] Speaker 03:
Those charges were dismissed.

[00:04:34] Speaker 03:
Well, certainly courts can consider dismissed counts.

[00:04:41] Speaker 03:
Absolutely, Your Honor.

[00:04:42] Speaker 03:
Yes.

[00:04:44] Speaker 03:
What made this different?

[00:04:46] Speaker 04:
What made this different is the weight afforded to that conduct.

[00:04:49] Speaker 04:
So it's certainly not the consideration of that conduct.

[00:04:52] Speaker 04:
It's the weight and the proportionality of the use of that conduct that's the problem here.

[00:04:58] Speaker 03:
Okay.

[00:04:58] Speaker 03:
And what was the use of it?

[00:04:59] Speaker 03:
What was the proportion?

[00:05:01] Speaker 03:
Explain very concretely what it was.

[00:05:04] Speaker 04:
Absolutely.

[00:05:05] Speaker 04:
So I'll just walk the court through where in the record we're seeing that excessive reliance.

[00:05:10] Speaker 04:
And so first, when the district court frames the nature and circumstances of the offense, it starts by talking about the indicted conduct.

[00:05:17] Speaker 04:
And it talks about the span of conduct.

[00:05:20] Speaker 03:
What conduct?

[00:05:21] Speaker 03:
Please don't just say the indicted conduct.

[00:05:23] Speaker 03:
I'm totally missing what you're referring to.

[00:05:26] Speaker 04:
OK, sure.

[00:05:27] Speaker 04:
What I'm referring to specifically are the counts in the indictment that refer to the PPP loan fraud and the bankruptcy fraud.

[00:05:34] Speaker 03:
And you're saying that's just totally unrelated to his culpability.

[00:05:38] Speaker 04:
Under the guidelines, yes.

[00:05:40] Speaker 04:
And Alan talks about that relatedness principle.

[00:05:43] Speaker 04:
And this was actually something that the probation officer discussed, this concept of expanded relevant conduct, where you still have to have, in order for it to be relevant under the guidelines and contribute or be contemplated as part of the defendant's culpability, it still needs to have a similar motive, similar accomplice, similar victim.

[00:06:04] Speaker 04:
And the probation officer and the district court affirmed that those factors were not present

[00:06:09] Speaker 04:
And I don't believe the government has disputed this.

[00:06:11] Speaker 03:
It wasn't contact in which he obtained money through fraud?

[00:06:14] Speaker 04:
Yes, Your Honor.

[00:06:15] Speaker 03:
But that's clearly irrelevant to conviction for obtaining money through fraud?

[00:06:20] Speaker 04:
Under the guidelines, yes.

[00:06:21] Speaker 04:
It's non-relevant conduct.

[00:06:23] Speaker 04:
And I don't know that anybody, that the government or the district court dispute that fact.

[00:06:27] Speaker 03:
OK.

[00:06:27] Speaker 03:
That's a lot more closely related than a dreamed-of sex offense in Allen, which had nothing to do with the

[00:06:39] Speaker 03:
charges on which he had been convicted.

[00:06:41] Speaker 04:
That's right, Your Honor.

[00:06:42] Speaker 04:
But I think that Allen is concerned with the weight, not necessarily the relevant.

[00:06:47] Speaker 04:
So again, we do agree that the district court could consider that conduct, but it's the weight afforded to that conduct that's the problem.

[00:06:54] Speaker 03:
OK, so you're starting to go through how the judge gave it too much weight.

[00:06:58] Speaker 03:
Go ahead.

[00:06:59] Speaker 03:
Sure.

[00:07:00] Speaker 04:
So I think I'd started with the nature and circumstances of the offense.

[00:07:04] Speaker 04:
The district court framed the nature and circumstances of the offense.

[00:07:07] Speaker 04:
using that indicted conduct.

[00:07:09] Speaker 04:
And it did then talk about the specifics of the offense of conviction, but it didn't identify anything aggravating when it discussed the offense of conviction.

[00:07:18] Speaker 02:
So this first reference is when Judge Dishman refers to the facts of the case.

[00:07:25] Speaker 02:
Yes.

[00:07:27] Speaker 04:
OK.

[00:07:27] Speaker 04:
But the district court does come back to that when the sentence is ultimately issued, saying, I believe the nature and circumstances of this offense grossly understate

[00:07:37] Speaker 04:
the advisory guideline range.

[00:07:39] Speaker 04:
So referring back to that span of conduct, which at any point where we see the district court sort of grappling with these factors and having pause.

[00:07:48] Speaker 04:
And in fact, there's an instance, I'm looking at volume two, page 76, where the district court is discussing deterrence and protection of the public.

[00:07:57] Speaker 04:
And the district court talks at length about many mitigating factors.

[00:08:01] Speaker 04:
Mr. Noll's age, his lack of criminal history, his performance on bonds.

[00:08:05] Speaker 04:
But it's specifically not the offense of conviction, but it's the unadjudicated conduct, which she calls the span of criminal conduct indicted but not pled guilty to.

[00:08:15] Speaker 04:
The district court says this is what's giving me pause as weighed against these mitigating factors.

[00:08:21] Speaker 04:
So I think that's particularly important here because we're seeing that it is this unadjudicated conduct

[00:08:26] Speaker 04:
that the district court is grappling with, not the seriousness of the offensive conviction.

[00:08:31] Speaker 04:
And when we read the explanation as a whole, we do see that the only feature of this case that really does distinguish it from a typical fraud case is that unadjudicated conduct, which, again, can be considered.

[00:08:44] Speaker 04:
But in this case, we have a significant upward variance, a 122% upward variance.

[00:08:51] Speaker 04:
And that requires more.

[00:08:54] Speaker 04:
Yes, go ahead.

[00:08:54] Speaker 04:
You finished your sentence.

[00:08:56] Speaker 04:
I was just going to say, it stems from the Supreme Court's holding in Gala that a major upward variance requires a more significant justification.

[00:09:03] Speaker 04:
OK.

[00:09:04] Speaker 02:
Now, I was trying to find it, and I couldn't.

[00:09:07] Speaker 02:
So I'm going to go by my very dim memory.

[00:09:10] Speaker 02:
I thought Judge Dishman was, she does make three comments that you point to in your briefing.

[00:09:16] Speaker 02:
But she also, in a few places, says, but I'm not sentencing you for those things.

[00:09:23] Speaker 02:
And what she says is that there is a victim, and the victim lost a lot of money.

[00:09:31] Speaker 02:
And now you have a good argument, I think, in your reply brief that, well, that's what fraud does.

[00:09:37] Speaker 02:
Fraud victimizes people, and so why would that be an aggravating factor?

[00:09:42] Speaker 02:
But that's a little different from your Allen argument that she's varying upward.

[00:09:49] Speaker 02:
because of these other unadjudicated offenses, because she is very specific about what she is relying on.

[00:10:01] Speaker 02:
And it's not those unadjudicated offenses.

[00:10:03] Speaker 02:
It's the fact that there was a victim, and the victim lost a lot of money.

[00:10:08] Speaker 04:
Well, I think two things.

[00:10:09] Speaker 04:
I think that that reference to the victim, that's as part of the district court's initial discussion of the offense of conviction.

[00:10:16] Speaker 04:
So it is noted, but it's a very brief

[00:10:19] Speaker 04:
reference and it's not mentioned again in the explanation of the sentence and as to your other point which is I think you're referencing when she says I'm careful not to overweight criminal conduct well she says yeah that's one of them but there's another place that I can't find it that that's the one that I recall and that's the one where she follows within that same sentence but it is this span of indicted conduct that's really giving me pause and

[00:10:43] Speaker 04:
So I think that disclaimer kind of follows with the idea that labels don't control.

[00:10:47] Speaker 04:
We look to the substance of what's being said.

[00:10:49] Speaker 04:
So even though there was this statement, well, I'm not overweighing it.

[00:10:54] Speaker 04:
When we look at the substance of what was actually considered, that is what happened.

[00:11:00] Speaker 02:
I'm going to ask you a very unfair question, but it's bothering me.

[00:11:05] Speaker 02:
And it is following up on what my colleague has asked you about Alan.

[00:11:11] Speaker 02:
And Alan, I think Judge McConnell is saying, not only did the district court rely on these, you know, imaginary or real fantasies about killing and raping and murdering young girls, but the district court actually applied the guideline range that would apply for offenses that he wasn't ever charged with.

[00:11:37] Speaker 02:
I think we've distinguished Allen in six presidential opinions.

[00:11:40] Speaker 02:
We've never relied on it to my knowledge in saying that in any situation, short of that we haven't had a case yet where they've applied the guideline range for unadjudicated offenses, but to say that, well, Judge Dishman said a couple of times that, you know, she is, you know, putting, she's considering these unadjudicated, these dismissed charges, but she's careful not to overweigh that.

[00:12:08] Speaker 02:
My unfair question is, how do we say that for the very first time when we've never ever relied on Alan in anything short of the charge?

[00:12:17] Speaker 02:
I have to really point out the extraordinary reliance on a guideline range for something the guy was never even charged with.

[00:12:24] Speaker 04:
Yeah, I think that's a fair question, Your Honor.

[00:12:26] Speaker 04:
And my response would be, this court hasn't been presented with a factual scenario like this one before, where we have both unadjudicated and non-relevant conduct at issue.

[00:12:36] Speaker 04:
and the district court doesn't identify anything specific to the offensive conviction that aggravates it.

[00:12:42] Speaker 04:
So this is the first example we have where there is only one example in the district court's explanation that points to that conduct.

[00:12:51] Speaker 04:
And I think I want to address one point, too, real quickly, that this court in Guevara Lopez and Cookson has said that a sentence that is deemed substantively unreasonable at the Court of Appeals may, in fact, be reasonable on remand

[00:13:04] Speaker 04:
if the district court provides an adequate explanation.

[00:13:07] Speaker 04:
And I think that's really important here because it shows the district court's explanation is really what matters, and that's what we're looking for on review.

[00:13:15] Speaker 00:
Well, so inadequate could mean insufficient explanation.

[00:13:18] Speaker 00:
I mean, I think that's what Gall talks about.

[00:13:19] Speaker 00:
So you can't even assess substantive reasonableness because you don't know what the court cared about.

[00:13:25] Speaker 00:
Here, your argument seems to be that it was an

[00:13:28] Speaker 00:
not an insufficient.

[00:13:29] Speaker 00:
So I don't think you fall within the... That's right.

[00:13:32] Speaker 00:
Okay.

[00:13:33] Speaker 00:
So your argument is squarely under the principles that you're asking us to extract from Alan.

[00:13:39] Speaker 00:
Is that correct?

[00:13:39] Speaker 04:
That's correct.

[00:13:40] Speaker 04:
But we also do have the failure to address the unwarranted sentencing disparities, which kind of goes hand in hand with that argument.

[00:13:49] Speaker 04:
Now, I know I'm running out of time, so I'll touch on that very briefly.

[00:13:52] Speaker 04:
In Guevara-Lopez, this court said that when the court issues an upward variance of such significant magnitude, that addressing the unwarranted sentencing disparity that that sentence creates is a critical factor.

[00:14:07] Speaker 04:
And so here we have the magnitude of the variance paired with we did provide the adjacent data, which this court can take judicial review of or just judicial notice of if it so chooses.

[00:14:17] Speaker 04:
Well, you provided it to us, not the district court.

[00:14:19] Speaker 04:
That's correct, yes.

[00:14:21] Speaker 04:
But in Guevara-Lopez, this court made clear that that data can just be used to inform this court's reasonableness inquiry.

[00:14:26] Speaker 04:
It can be.

[00:14:28] Speaker 04:
It does not have to be.

[00:14:29] Speaker 04:
That's correct, yes.

[00:14:32] Speaker 04:
So here, the district court's cursory explanation of that factor mirrors the one provided in Guevara-Lopez, which this court deemed perfunctory.

[00:14:41] Speaker 04:
It just said, and I'm looking at page 77 on volume 2,

[00:14:44] Speaker 04:
I've considered the need to avoid unwarranted sentencing disparities, but I'm not concerned that they will create unwarranted disparities.

[00:14:52] Speaker 04:
So just as a final point, like in Guevara-Lopez, the lack of explanation is compounded by the fact that the district court relied on unadjudicated, non-relevant conducts.

[00:15:02] Speaker 04:
I see I'm out of time.

[00:15:03] Speaker 04:
Thank you.

[00:15:04] Speaker 03:
Ms.

[00:15:09] Speaker 03:
Barry?

[00:15:23] Speaker 01:
Thank you, Your Honors.

[00:15:24] Speaker 01:
May it please the court?

[00:15:25] Speaker 01:
I am still Julia Berry for purposes of the record.

[00:15:29] Speaker 01:
This court should affirm the district court's sentence in this case.

[00:15:33] Speaker 01:
First, as this court recognized in McComb, there are few arenas where the realm of rationally available choices is as large as it is at sentencing.

[00:15:43] Speaker 01:
And Mr. Knowles's 40-month sentence, which this court reviews under the deferential abuse of discretion standard, was substantively reasonable.

[00:15:52] Speaker 00:
Why shouldn't we look at it?

[00:15:53] Speaker 00:
Allen certainly is different in so many ways factually.

[00:15:57] Speaker 00:
But why shouldn't we be comfortable extracting the principle that the appellant urges us to extract from it and apply it here?

[00:16:06] Speaker 01:
Your Honor, one, for the reasons that I set forth in my briefing, which is the clear factual distinction between them.

[00:16:12] Speaker 01:
But I understand your point about the principle.

[00:16:15] Speaker 01:
Repeatedly, this court has limited Allen to its facts.

[00:16:19] Speaker 01:
And repeatedly, this court has emphasized that Allen

[00:16:23] Speaker 01:
does not eliminate this court's ability to consider even uncharged conduct.

[00:16:29] Speaker 01:
Here we had conduct that was found by probable cause.

[00:16:33] Speaker 01:
But also importantly, as this court notes in Lucero, in Cortez, in Mateo, in Bright, Mr. Knowles did not factually object to the pre-sentence investigation report setting forth this non-relevant conduct in great detail.

[00:16:51] Speaker 01:
It is well established in this circuit that in order to trigger the district court's Rule 32i fact-finding, a very specific factual objection must be waived.

[00:17:02] Speaker 01:
Defense counsel was given multiple opportunities, and I believe actually waived this objection because he indicated in his objections that he acknowledged the court could consider this relevant conduct, which it can under 3661.

[00:17:16] Speaker 01:
and under 3553A factors.

[00:17:18] Speaker 00:
Well, I don't think the argument that Pellin is making is that it's off limits, that it was over relied on to impose the variance.

[00:17:26] Speaker 01:
And I don't think that there is, first of all, I don't think that happened.

[00:17:30] Speaker 01:
And second of all, I don't think that there is anything stating, and I think that there is actually precedent to the contrary, indicating that it is not up to this court to reweigh the district court's factual determinations.

[00:17:43] Speaker 00:
The fact of the matter is... Well, we review weighing, which is... Correct.

[00:17:47] Speaker 00:
It's sort of strange.

[00:17:48] Speaker 00:
That is correct.

[00:17:48] Speaker 00:
But that's what we do.

[00:17:49] Speaker 00:
And so if we review the way in which the district court weighed the factors without reweighing them ourselves, why shouldn't we conclude that what mattered really the most to this judge was the charged conduct that was ultimately not prosecuted here?

[00:18:09] Speaker 01:
Well, a few things.

[00:18:10] Speaker 01:
I don't believe that is what mattered the most to the judge.

[00:18:13] Speaker 01:
And two, even if it had, I do think that would be OK, given the full nature of her explanation.

[00:18:20] Speaker 01:
So Judge Dishman noted the nature and circumstances of the offense.

[00:18:24] Speaker 01:
And though she didn't use the magic words, history, and characteristics of the defendant, that is what those other charges in the indictment were relating to.

[00:18:33] Speaker 01:
She illuminated several facts in addition to her disclaimer that she was very careful not to overweigh conduct for which Mr. Knowles had actually been convicted.

[00:18:45] Speaker 01:
The existence of a victim, I recognize that the appellant states that this is garden variety fraud, but respectfully I've been doing this for over a decade and not every case has a clear victim.

[00:18:57] Speaker 01:
The fact that the defendant personally benefited from the fraud and that he was motivated by greed and deception.

[00:19:03] Speaker 01:
Not every case is motivated by greed and deception.

[00:19:06] Speaker 01:
We routinely have bank fraud cases in which a defendant is caught up in a series of lies and doesn't personally financially benefit to the tune of millions of dollars.

[00:19:18] Speaker 01:
The serious nature of the conspiracy that implicated Mr. Knowles's wife, the significant benefit of the plea deal that he received,

[00:19:26] Speaker 01:
the need to promote respect for the law and provide just punishment for the offense.

[00:19:31] Speaker 01:
I read the appellant's argument as a disagreement with the emphasis on the nature and circumstances of the offense and a need to reflect the seriousness of the offense, promote respect for the law, and promote just punishment for the offense.

[00:19:45] Speaker 01:
But that is well within the district court's purview to consider.

[00:19:48] Speaker 01:
I think a helpful exercise would be to examine

[00:19:52] Speaker 01:
what would happen if the district court had done what the district court did in Allen.

[00:19:58] Speaker 01:
Mr. Knowles was charged in a 13-count speaking indictment with a large subset of those charges, and those charges involve millions and millions of dollars.

[00:20:09] Speaker 01:
The advisory guideline range, if he'd been convicted of those alternative charges, would have been

[00:20:15] Speaker 01:
approximately 80 months, and I don't think there's any dispute if you do the math under 2B1.1.

[00:20:21] Speaker 01:
If the district court here, perhaps, had said, you know what, I'm going to disregard everything about this conspiracy to commit bank fraud, and I'm going to charge you based upon the $20 million, $10 million, whatever the case may be, in the bankruptcy fraud, and I'm going to substitute that alternative guideline range, and I'm going to say that

[00:20:44] Speaker 01:
You should be held accountable for that alternative guideline range.

[00:20:48] Speaker 01:
Then, maybe then, we have an Allen problem.

[00:20:51] Speaker 01:
But we are far from Allen's purview.

[00:20:53] Speaker 02:
Well, can I probe that a little bit, Ms.

[00:20:56] Speaker 02:
Berry?

[00:20:57] Speaker 02:
Sure.

[00:20:57] Speaker 02:
So hypothetically, let's say the defendant says, look, Judge Dishman, you should at least consider the fact that I waived the statute of limitations on this charge.

[00:21:11] Speaker 02:
And the district court says,

[00:21:12] Speaker 02:
Yeah, you just waived the statute of limitations because of what you just quoted.

[00:21:18] Speaker 02:
You got a favorable deal on this plea deal.

[00:21:22] Speaker 02:
And the defendant says, it wasn't favorable.

[00:21:25] Speaker 02:
I had a great defense.

[00:21:28] Speaker 02:
Judge Dishman doesn't know if it's a great defense.

[00:21:30] Speaker 02:
It never went to trial.

[00:21:32] Speaker 02:
But I wonder if what Judge Dishman did was different but not qualitatively any better

[00:21:42] Speaker 02:
than what the district court did in Allen because she arguably credited the assumption that it wasn't gratuitous.

[00:21:56] Speaker 02:
It wasn't just out of the kindness of his heart.

[00:21:59] Speaker 02:
He waived the statute of limitations because he had a great deal because he was guilty of these other charges.

[00:22:07] Speaker 02:
And the only reason that he waived the statute of limitations was he got this favor

[00:22:11] Speaker 02:
Isn't the fact that she quoted, that she said that this was a favorable plea deal, that you just quoted that language, doesn't that indicate an assumption that she credited the government's ability to prove those charges beyond a reasonable doubt and the defendant never had the benefit of it?

[00:22:31] Speaker 01:
It means that she credited the ability of the United States to prove those additional charges by a preponderance of the evidence, which is the standard at sentencing, and which the United States could have handily done.

[00:22:47] Speaker 01:
I recognize that's not in the record.

[00:22:49] Speaker 02:
So how did Judge Deshpande know that?

[00:22:50] Speaker 01:
Because the defense did not object.

[00:22:53] Speaker 01:
And when we were actually at the hearing, she indicated that she had reached out to counsel for both parties in advance.

[00:23:01] Speaker 01:
and to determine what objections were still alive, and had discerned from those conversations via email.

[00:23:09] Speaker 01:
So this is not part of the record, but this is how it happened, because I'm just indulging the court's point here for a minute.

[00:23:16] Speaker 01:
She then, in court, asked on the record both the government and defense counsel whether that was the case.

[00:23:23] Speaker 01:
And defense reiterated that he had no objections.

[00:23:28] Speaker 01:
Now, at that point, you have had

[00:23:30] Speaker 01:
Three opportunities to raise an objection to the ample robust section of the pre-sentence investigation report that details offense behavior not part of relevant conduct, but it has not been done so.

[00:23:44] Speaker 01:
It is unfair, and this court has said that repeatedly, to expect the district court to unilaterally engage in Rule 32i fact finding when there is not any sort of objection despite multiple checks along the way.

[00:24:04] Speaker 01:
If there are no further questions, I want to just respond to a couple of points here.

[00:24:09] Speaker 01:
One.

[00:24:33] Speaker 01:
the use of JSON data.

[00:24:35] Speaker 01:
I think it is very clear under Guevara-Lopez that the court will not substitute evidence lacking specific comparators for an otherwise adequate explanation.

[00:24:48] Speaker 01:
And I believe that the district court gave a very adequate explanation here.

[00:24:52] Speaker 01:
I'd also like to highlight that in Doty, I believe Judge Baccarat, it was you who noted that

[00:24:59] Speaker 01:
It is unfair to consider the district court to have abused its discretion if this JSON data was in no way before the district court.

[00:25:08] Speaker 01:
Now, certainly this court can consider it where there are other concerns about the length of the sentence.

[00:25:14] Speaker 01:
And there's concerns that there may be a substantive reasonable in this challenge.

[00:25:18] Speaker 01:
But this court does not wholesale go back and reconsider data that was never presented to the district court.

[00:25:26] Speaker 01:
I mean, don't we generally consider disparities based on the guidelines themselves?

[00:25:30] Speaker 01:
We do, and the district court explicitly considered the guidelines in this case and determined that based upon the 3553A factors, they were insufficient.

[00:25:42] Speaker 01:
In addition, she did note that under Section 3553A6, she had considered the need to avoid unwanted sentencing disparities, but that she was not concerned because she was

[00:25:54] Speaker 01:
in fact, sentencing Mr. Knowles for the conduct that he was responsible for.

[00:26:00] Speaker 01:
I would also note, just to respond to the appellant's point about that being a very perfunctory remark, this court has affirmed sentences containing similar upward variances or greater upward variance, where the address of 3553A6 is similarly limited.

[00:26:20] Speaker 01:
Valdez comes to mind, Cortez,

[00:26:23] Speaker 01:
Lucero, Doty, over and over this court has affirmed sentences that are well above the advisory guideline range.

[00:26:32] Speaker 01:
What matters is that the court explains its sentence and I believe that the court did so here.

[00:26:37] Speaker 01:
If there are no further questions, I will touch briefly upon the breach of the plea agreement issue because I do think that that is something that is important because the United States takes its plea obligations very seriously.

[00:26:55] Speaker 01:
The United States' obligation not to further prosecute Mr. Knowles meant that it would not seek further charges or convict Mr. Knowles of charges that related to the additional conduct set forth in the indictment, not that his conduct could not and would not be used against him in sentencing.

[00:27:11] Speaker 01:
This was made clear in several portions of the plea agreement.

[00:27:15] Speaker 01:
First, in the promise itself.

[00:27:17] Speaker 01:
The promise itself clearly linked the dismissal of charges to the indictment itself, making it clear that the

[00:27:24] Speaker 01:
would prosecute contemplated charges, not sentencing considerations.

[00:27:29] Speaker 01:
Second, and I think most importantly, the penultimate paragraph of the plea agreement explicitly reserved the right to inform the court and probation of any conduct that the United States deemed relevant to sentencing.

[00:27:44] Speaker 01:
And that's important because the United States cannot override the district court's need to consider

[00:27:49] Speaker 01:
the 3553A factors, and that includes section 3553A1, the nature and circumstances of the offense and history and characteristics of the defendant.

[00:27:59] Speaker 01:
And to do otherwise would be impeding upon the district court's purview.

[00:28:04] Speaker 01:
And in addition, and finally, an earlier provision explicitly stated that the allegations contained in the indictment could be used to prepare for sentencing, and it used the word sentencing.

[00:28:16] Speaker 01:
even assuming for the sake of argument that the United States had somehow breached that agreement, it can certainly not have been said to do so plainly absent a uniform definition of the word prosecute.

[00:28:28] Speaker 01:
And certainly this conduct for plain error purposes was well before the district court, both in the 17-page speaking indictment and the very robust section of the pre-sentence investigation report, to which Mr. Knowles did not object.

[00:28:45] Speaker 03:
Guidelines 6B1.2A apply here.

[00:28:49] Speaker 01:
Excuse me?

[00:28:50] Speaker 03:
Does Guidelines 6B1.2A apply here?

[00:28:53] Speaker 01:
6B1.2A, if you could enlighten me, Your Honor.

[00:28:58] Speaker 03:
It says a plea agreement that includes the dismissal of a charge or a plea agreement not to pursue a potential charge shall

[00:29:06] Speaker 03:
not preclude the conduct underlying such charge from being considered under provisions of Section 1B1.3 in connection with the counsel of which the defendant is convicted.

[00:29:18] Speaker 03:
I did not know that provision from memory, Your Honor, but given that... Since you didn't say, I thought maybe there was a reason it wasn't.

[00:29:25] Speaker 01:
No, Your Honor, that was not a deliberate omission on our part.

[00:29:29] Speaker 01:
It was simply the fact that

[00:29:32] Speaker 01:
We believe the language of the plea agreement was clear, even rendering it in the defendant's favor, given the context of the agreement, and certainly given the context of the district court's considerations at sentencing.

[00:29:43] Speaker 01:
Thank you.

[00:29:49] Speaker 03:
You used your time.

[00:29:51] Speaker 03:
I'd generally like to give a little time for rebuttal.

[00:29:53] Speaker 03:
If there's something you want to say, you don't have to speak at all.

[00:29:58] Speaker 03:
Do you want 30 seconds?

[00:30:01] Speaker 03:
But I'm going to cut you off immediately at 30 seconds.

[00:30:04] Speaker 03:
That's totally fine.

[00:30:05] Speaker 03:
Thank you.

[00:30:07] Speaker 04:
The first point I just want to touch on, first, as to the substantive reasonability of the sentence, I know the government mentioned a few cases where the sentence was much higher or the variance was higher.

[00:30:19] Speaker 04:
But in those cases, the court found that the district court's explanation of the sentence was otherwise adequate.

[00:30:25] Speaker 04:
And that was why the explanation of the A6 factor

[00:30:29] Speaker 04:
As perfunctory was permissible because the rest of the explanation supported it and I was going to touch on breach for the amount of time Thank you Thank you counsel the case is admitted counsel are excused