[00:00:00] Speaker 00: Case number 23-3058, United States of America versus Lofonso Leonard Iriex appellant. [00:00:07] Speaker 00: Mr. Kramer, for the appellant, Mr. Leonard, respectfully. [00:00:15] Speaker 02: Mr. Kramer, we'll hear from you. [00:00:17] Speaker 03: Morning, Your Honors, and may it please the court. [00:00:20] Speaker 03: I don't think there's much dispute either about the facts of the case or the law applicable. [00:00:26] Speaker 03: In the district court, the government pursuant to the plea agreement had agreed [00:00:30] Speaker 03: that no upward, not specifically, but they agreed to recommend a sentence at the bottom third of the guidelines and they did so recommending a sentence of 32 months. [00:00:41] Speaker 03: And that obviously by implication, no upward variance or it was specifically agreed that no departures were applicable. [00:00:48] Speaker 03: And the only mention of variances was that Mr. Arax could argue for a variance below the guidelines, whatever the court determined the guidelines were. [00:00:58] Speaker 03: The probation report was quite clear when it said that it had examined all the factors and that no departure was warranted and specifically said the probation has not identified any factors that would warrant a variance from the applicable guideline range. [00:01:16] Speaker 03: So the probation report was also [00:01:18] Speaker 03: quite clear. [00:01:18] Speaker 01: Do you believe that when you have a agreement kind of on a sentence, even at the lower end of, let's say, the higher guideline, that when the guideline goes down, that proportionately your agreement kind of stands with placing yourself in that particular area of the guideline? [00:01:38] Speaker 03: I don't know about in general, but in this particular case, I think it depends on the wording of the plea agreement, but the plea agreement specifically said the government agrees to recommend a sentence in the lower third of whatever the district court determines the guideline range to be. [00:01:57] Speaker 03: So the district court, it could have been anywhere along the line, but whatever the final determination by the district court, the government was bound to recommend a sentence in the lower third, and they did. [00:02:07] Speaker 03: they recommended a sentence two months above the bottom of the guideline range. [00:02:12] Speaker 03: How it got to the and I recognize that the pre-sentence report in the recommendation of sentence recommended a 64-month sentence but that of course was before the district court determined that the guideline range used in that report was incorrect and then a much lower guideline range applied and how [00:02:33] Speaker 03: the district court transposed that 64-month sentence to then be a recommendation of an upward variance is not clear from the record. [00:02:43] Speaker 03: The only thing that's clear from the record is that every time we tried to call it to the district court's attention that that was not actually correct, the district court said no, that probation office is asking for an upward departure. [00:02:58] Speaker 03: At least three times it was pointed out [00:03:00] Speaker 03: to the district court that was not correct. [00:03:03] Speaker 03: Right at the beginning of the defense allocution after a little bit of discussion and then at the end when the defense also said wait there was no variance requested as we had been saying all along and the district court kept saying no there was a variance request and it was 64 months and [00:03:22] Speaker 01: Even if we take that aside, though, there seems to have been some emphasis on the prior involuntary manslaughter conviction that when the district court was comparing other sentences, when you just kind of look around the district to see, you know, how has this been handled before, there was at least some discussion and that seemed to be kind of prompting [00:03:43] Speaker 03: Her rationale at least for why this particular case that was concerning that there was an involuntary manslaughter prior conviction No, absolutely, but I kind of disagree with that what prompted her what seemed to prompt her was from the very beginning the district court said I took not that [00:04:01] Speaker 03: Pre-sentence report recommends a significant departure. [00:04:05] Speaker 03: And I took note of that. [00:04:06] Speaker 03: And that went through the entire, that was at the very beginning. [00:04:10] Speaker 03: And then, yes, it was almost as if, well, the probation officers recommend this very large departure. [00:04:16] Speaker 03: And I took note of that. [00:04:17] Speaker 03: And now I'll tailor the sentence to justify that departure. [00:04:23] Speaker 03: But the facts, I'm sorry. [00:04:24] Speaker 01: No, I was just going to say one thing that [00:04:27] Speaker 01: I'd just like to put this on the record. [00:04:29] Speaker 01: I'm sure as counsel, you know, if we were to vacate the sentence, it just goes back and then you risk undoing all of, you know, what your potential agreement was as well. [00:04:40] Speaker 03: If you send it back, yes, I don't think it, all it sent back for is re-sentencing. [00:04:46] Speaker 01: But that's my point, that you start over. [00:04:48] Speaker 01: You re-present the case and there's a chance that you could be right back to the same sentence. [00:04:56] Speaker 03: That's true. [00:04:57] Speaker 03: But the district court would at that point have been disabused of the notion that the probation office had recommended a substantial upward departure. [00:05:07] Speaker 03: So the whole point of it is the district court was operating under an erroneous [00:05:13] Speaker 03: a view of the facts or mistaken view of the facts and yes, but if it goes back to the district court, the government will be bound by the same agreement. [00:05:22] Speaker 03: They'll recommend the 32 months again. [00:05:24] Speaker 03: The probation office will make it clear that they recommended no variance. [00:05:28] Speaker 03: And this could have been avoided had either the probation officer or the government said to the district court, yes, that's correct what the defense is saying to you, that there was no, there is no, [00:05:41] Speaker 02: Request for an upward variance, but I'm looking at the transcript and correct me if I'm wrong at j127 So the first time variance is mentioned by this record is at j123 and [00:06:01] Speaker 02: At least I think that's the first time. [00:06:04] Speaker 03: The district court said, yes. [00:06:05] Speaker 03: Earlier the district court had said, I'll talk about variance later. [00:06:11] Speaker 02: No specifics. [00:06:12] Speaker 02: But then, so that's first, I think that's like page six or something. [00:06:16] Speaker 02: Page 10 of the sentencing transcript, K123, the district court says the probation office has recommended a sentence of 64 months. [00:06:27] Speaker 02: That is a variance upward. [00:06:29] Speaker 02: Yes. [00:06:30] Speaker 02: And so then later at 127, the district court says that I don't see probation coming in here recommending such variances very often. [00:06:44] Speaker 02: Yes. [00:06:45] Speaker 02: And then the defense attorney has an opportunity to speak immediately after that. [00:06:53] Speaker 02: And I don't see the defense attorney say at that point, well, no, your honor, you're wrong about that. [00:07:02] Speaker 02: The probation officer did not request an upwards variance. [00:07:11] Speaker 03: So two things. [00:07:12] Speaker 03: Right before that is when the defense said, just before on page 127, the defense said, I'd like to start by pointing out that it was based on a guideline range of 57 to 71 months. [00:07:26] Speaker 03: And then that's when the district court said, yeah, but I don't see. [00:07:29] Speaker 03: And you're right. [00:07:30] Speaker 03: Nothing was said after that, but I'm not sure what would have been said. [00:07:34] Speaker 03: It was pointed out to the district court that, [00:07:38] Speaker 03: The earlier statement that probation had recommended 64 months was made under the incorrect guideline range. [00:07:46] Speaker 03: And the district court's response was that I don't see them coming under and recommending such significant variances. [00:07:54] Speaker 03: I don't think there was any, it had already been said right before that, that that 64 months was not the recommend, well, that was the recommendation under an incorrect guidelines range. [00:08:05] Speaker 03: So I'm not sure what else could have been said at that point. [00:08:09] Speaker 03: There's nothing there. [00:08:10] Speaker 03: It was called to the district court's attention. [00:08:13] Speaker 03: It was called to the district court's attention later, and the district court said the same thing. [00:08:20] Speaker 03: So it seems like it would have been futile at that point to say anything else. [00:08:25] Speaker 03: And also, you're starting to ask a district court is going to be sentencing your client, and you've already pointed out that [00:08:32] Speaker 03: that range is not the that the there is no request for the variance and that that range was the incorrect range and then you've said that you've made your record and then the district court says um but i don't mr kramer i've had defense lawyers argue with me lots of times and i argued with judges lots of times when i was a defense lawyer [00:08:58] Speaker 02: So take your point, but I think it only gets you so far. [00:09:02] Speaker 02: I mean, my district court said, well, later after the court announced its sentence, the defense lawyer said, we received no notice of an upward variance [00:09:28] Speaker 02: And then the district court said, well, your objection is noted for the record. [00:09:32] Speaker 02: I'd note that the probation office did recommend an upward variance. [00:09:36] Speaker 02: And then defense lawyer said they recommended the guidelines sentence, not an upward variance. [00:09:44] Speaker 02: And the court said, right. [00:09:46] Speaker 02: Okay. [00:09:48] Speaker 02: Your objection is noted for record. [00:09:51] Speaker 02: And so [00:09:53] Speaker 02: I mean, how are we supposed to interpret what it meant for the district court to say, right, okay. [00:10:01] Speaker 02: The district court didn't say, no, you're wrong. [00:10:04] Speaker 02: They did request an upward variance. [00:10:08] Speaker 02: They said, this report said, right. [00:10:11] Speaker 02: So isn't that an acknowledgement by the district court that the probation office didn't request an upward variance? [00:10:19] Speaker 03: A couple of things. [00:10:21] Speaker 03: No, I think the answer is no. [00:10:22] Speaker 03: And a couple of things. [00:10:23] Speaker 03: The government has not argued that, nor did the government argue. [00:10:26] Speaker 03: The government mentioned in their brief that on page 127, when the district court said, yeah, but I don't see probation coming in here, they said in their brief that [00:10:38] Speaker 03: Defense said nothing after that, but they didn't argue that that meant the district court understood that the district court was incorrect. [00:10:46] Speaker 03: Nor did they argue that changed the standard of review. [00:10:49] Speaker 03: Nor did they make any such argument about page 144. [00:10:52] Speaker 03: The district court had just said, your objection is noted for the record. [00:10:58] Speaker 03: I'd note that they did recommend an upward variance. [00:11:01] Speaker 03: And the district, I mean, [00:11:04] Speaker 03: To interpret that right, well, and then the defense says, well, no, that's not correct. [00:11:10] Speaker 03: And they say the district court says, right, OK. [00:11:14] Speaker 03: That's, I mean, you had to be there to hear the intonation of that. [00:11:18] Speaker 03: It was like, yeah, you've said this, and right, OK. [00:11:22] Speaker 03: But that's not an acknowledgment. [00:11:24] Speaker 03: The district court never acknowledged, let me put it that way, that the, and said your objection is noted for the record. [00:11:31] Speaker 03: There would be no reason to note an objection if the district court understood that there was, in fact, no. [00:11:38] Speaker 02: Well, the objection that was made was that we didn't get notice [00:11:44] Speaker 02: an upward variance was on the table. [00:11:48] Speaker 02: I mean, that was the previous objection that was made at the top of that page. [00:11:55] Speaker 02: And so the court responded to that by saying, well, probation requested an upward variance. [00:12:03] Speaker 02: And then the defense said, no, they didn't. [00:12:07] Speaker 02: And then the court said, right, OK. [00:12:12] Speaker 02: Your objection is noted for the record. [00:12:15] Speaker 02: Well, the objection that had been made was that you imposed an upward variance without anyone giving us notice that an upward variance was on the table. [00:12:27] Speaker 02: So again, but that issue isn't being raised on appeal, right? [00:12:31] Speaker 03: No. [00:12:32] Speaker 03: So again, no, that's correct. [00:12:33] Speaker 03: Again, I would stow the, but you have to read the sentence again, you have to read the sentence in between there where it says, well, they recommended a guideline sentence, right? [00:12:42] Speaker 03: Okay. [00:12:43] Speaker 03: Your objection is noted. [00:12:44] Speaker 03: That's not an acknowledgement that nor does the government argue that I would note again, that that's an acknowledgement that government, uh, [00:12:54] Speaker 03: The government's argument acknowledges that the district could, they go so far as to say incorrectly characterized it, but they never say that the district court understood that the probation office had never recommended a variance and that the 64 month sentence was a recommendation under the [00:13:16] Speaker 03: And furthermore, I think that I don't think Your Honor's interpretation of it is correct. [00:13:23] Speaker 03: But even if it was, that doesn't change the standard of review here, where there was an objection to the district court's incorrect assumption that the probation office had incorrect fact that the probation office had recommended an upward departure. [00:13:42] Speaker 03: And that doesn't change the standard of review. [00:13:45] Speaker 03: this little bit at the end. [00:13:46] Speaker 03: If anything, it reinforces that the district court had thought there was an upward departure or variance request in the pre-sentence report and reflects that it affected the district court's sentence. [00:14:01] Speaker 02: Under call, there still has to be a showing that the procedural error was prejudicial, right? [00:14:09] Speaker 02: Yes. [00:14:11] Speaker 02: And so if the district court [00:14:15] Speaker 02: did not cite or refer to this upward variance that the district court, let's assume you're right, that the district court mistakenly believed that probation had requested an upward variance. [00:14:34] Speaker 02: But if the district court didn't refer to that as a reason for the upward variance, [00:14:41] Speaker 02: How do we know that that procedural error that the erroneous fact that the district court had in its mind, how do we know that that really contributed to the sentence? [00:14:56] Speaker 02: In other words, how do you show that that's prejudicial? [00:15:00] Speaker 03: Well, this court's test is that the burden is on the government to show that the district court, that it did not affect the government's sentence. [00:15:08] Speaker 03: And I think in [00:15:11] Speaker 03: In Parks, in Mack, and especially in a case called Parks, I think, was written by Your Honor, and Mack was written by Judge Edwards. [00:15:22] Speaker 03: But in a case called Macklewane, 931 F3rd 1176, this court judge, then Chief Judge Garland, wrote that the government bears the burden of showing that the government, that there was no error, that the district court did not rely on this fact. [00:15:40] Speaker 03: And if the party, they have to persuade you that the district court would have imposed the same sentence absent the erroneous factor. [00:15:51] Speaker 03: And I think that this is the government's argument that the district court didn't mention that. [00:15:56] Speaker 03: But the district court began the sentencing by saying that the probation officer recommended a substantial upward variance [00:16:05] Speaker 03: a significant upward variance, and I took note of that. [00:16:08] Speaker 03: And that colored the whole sentencing that took place afterwards. [00:16:12] Speaker 03: And then at the end, when the district court was another time, the defense said, wait a minute, there was no upward variance recommendation. [00:16:21] Speaker 03: And the fact that there was no notice of an upward variance included the fact, because the probation office had specifically said, no upward variance is warranted in this case. [00:16:34] Speaker 03: and the district court said okay I note your objection and then when it said but the right okay that's just the throwaway line I don't think that's an acknowledgement that there was that the district court acknowledged that the probation office ever realized that the probation office had recommended this because throughout the sentencing and I don't see how you can say that the [00:16:59] Speaker 03: When the district court starts off its sentencing by saying this is a significant request for a variance and then gave reasons, all of which are covered in the guidelines. [00:17:10] Speaker 03: And then it says at the end, yes, there was this argument in the probation report for significant upward variance. [00:17:17] Speaker 03: How that didn't you say that sentence? [00:17:20] Speaker 01: The district court was aware that the range was 30 to 37 months, though. [00:17:24] Speaker 01: You acknowledged that. [00:17:25] Speaker 03: Yes. [00:17:26] Speaker 03: Initially, the district court had said a different range, lower even. [00:17:29] Speaker 03: But at the time, yes. [00:17:32] Speaker 01: But at the time of the sentence being pronounced, you all were on the same page that it was 30 to 37. [00:17:37] Speaker 01: Yes. [00:17:38] Speaker 01: OK. [00:17:38] Speaker 01: Yes. [00:17:39] Speaker 01: Then she gets the opportunity to go through the sentencing factors. [00:17:43] Speaker 01: Yes. [00:17:43] Speaker 01: And one of which included, as I referenced earlier, the manslaughter conviction. [00:17:48] Speaker 01: which apparently was part of her rationale and she cited to that. [00:17:55] Speaker 01: Because even in comparing other sentences that she acknowledged, she felt like this one was different because of that manslaughter conviction and it involved a gun. [00:18:06] Speaker 03: Yes, and a couple of things. [00:18:08] Speaker 03: First of all, in her written statement of reason, she said a slight upward variance because the circumstances of the involuntary manslaughter offense and the seriousness of dealing PCP. [00:18:21] Speaker 03: Now, the PCP is taken account of in the guidelines. [00:18:25] Speaker 03: The manslaughter offense was actually argued by the defense as a mitigating fact. [00:18:30] Speaker 03: It was a gun that did not belong to Mr. Arax. [00:18:34] Speaker 03: It was handed to him. [00:18:35] Speaker 03: during the filming of a music video he thought the gun was unloaded or had blanks and he fired the gun and someone was killed eerily reminiscent of a movie. [00:18:47] Speaker 01: She says so you know firsthand the damage that guns are doing in this city. [00:18:53] Speaker 03: Yes, I think she did say that. [00:18:55] Speaker 03: And that's true of anybody. [00:18:58] Speaker 03: But at the same time, she acknowledged that there were reasons. [00:19:00] Speaker 01: But I just say that to say she's supporting her rationale by using the 3553A factors as to this defense. [00:19:08] Speaker 03: Yes, but that's all taken account of in the guide. [00:19:10] Speaker 03: Well, two things. [00:19:11] Speaker 03: First of all, had she not been under the misconception that probation had recommended an upward variance, there's no indication that [00:19:20] Speaker 03: an upward variance would have been considered for those reasons. [00:19:23] Speaker 03: And second of all, in fact, that manslaughter conviction had mitigating circumstances to it. [00:19:32] Speaker 03: The victim's mother came in then and asked for a lenient sentence for Mr. Arax because of that, the circumstance. [00:19:39] Speaker 01: But you're presenting medication, and she does not, or he or she, as a district judge, does not have to take into account [00:19:48] Speaker 01: all of your arguments. [00:19:49] Speaker 01: You know, as Judge Wilkins says, you know, he's arguing many cases in front of the court. [00:19:54] Speaker 01: And then, you know, we all hear lawyers argue. [00:19:57] Speaker 01: I've been a district judge as well, but it doesn't mean that we have to accept everything you all say. [00:20:01] Speaker 01: We're looking at the balance of the entirety of the record and then make a decision as long as we justify it, you know, through the factors. [00:20:09] Speaker 03: I agree with that. [00:20:10] Speaker 03: You obviously don't have to. [00:20:12] Speaker 03: I'm well used to not having everything, I argue, being accepted. [00:20:16] Speaker 03: But it has to be considered by the district court when you make an argument, a non-frivolous argument. [00:20:25] Speaker 01: And do we know that doesn't mean considered? [00:20:29] Speaker 03: Well, when. [00:20:32] Speaker 03: But first, and second, well, there is nothing in the record where she talked about another sentencing at the beginning, but it's unclear what that was about. [00:20:43] Speaker 03: But when she says this makes the case different, first of all, the average sentence for these cases, she said, was 33 months, and the mean sentence was 30 months. [00:20:54] Speaker 03: But there was nothing she cited that made this different other than the manslaughter conviction. [00:20:59] Speaker 03: There's no evidence of how many other of these cases had a manslaughter conviction or even a murder conviction in their background. [00:21:06] Speaker 03: So when she said this makes it different, there was nothing to base that on. [00:21:11] Speaker 03: offense though yes yes again because not his gun um given to him and he thought it was empty um but yes it's clearly but there's no indication when she said that makes it different than anybody else sentenced under 2k 2.1 there's no indication of how many other of those people sentenced under that guideline had a similar incident that i would ask you [00:21:36] Speaker 01: We talked earlier about re-sentencing if this was to go back. [00:21:39] Speaker 01: Yes. [00:21:40] Speaker 01: What's the real legal principle that you're asking us to expound upon? [00:21:44] Speaker 01: Like, what's the lesson here that you would want us to give a district court judge? [00:21:48] Speaker 03: Well, that comes from the Gall case and numerous cases of this circuit, where the district court not bases the sentence on an erroneous, but there's an erroneous fact that affects the district court's decision. [00:22:06] Speaker 03: And it's the government that has the burden to show that it did not. [00:22:09] Speaker 03: When there's an erroneous fact upon which the district court relied, and I don't mean solely relied, [00:22:16] Speaker 03: but that affected it. [00:22:18] Speaker 03: And this court, like I said, said one of the ways you can show that it didn't affect is if the district court says, I would have imposed this sentence no matter what. [00:22:30] Speaker 03: Whether probation recommended an upward variance or not, I would impose the sentence. [00:22:35] Speaker 03: But a couple of the court's cases have that actual link. [00:22:39] Speaker 03: But the district court said nothing like that. [00:22:41] Speaker 03: And this court has said that one way to do that is if the district court says, [00:22:46] Speaker 03: that I would have imposed the same sentence in any event. [00:22:51] Speaker 03: So the lesson would be the district court can't rely on an erroneous fact in sentencing someone, and if they do, it has to be resentenced. [00:23:04] Speaker 04: And your erroneous fact, when you keep saying that, the erroneous fact in your mind is misunderstanding about probation. [00:23:13] Speaker 03: Yes, if the probation officer recommended a 64-month sentence, there was a significant departure according to the district court. [00:23:21] Speaker 02: Variance. [00:23:22] Speaker 03: Variance. [00:23:22] Speaker 03: I'm sorry. [00:23:23] Speaker 03: A significant variance according to the district court. [00:23:26] Speaker 03: And they took note of that at the very beginning. [00:23:29] Speaker 03: So yes, the erroneous. [00:23:30] Speaker 03: And the government hasn't disputed that, I might add, that that was not correct and that the district court kept saying. [00:23:38] Speaker 04: Do you think the record is clear that the district court was saying, [00:23:41] Speaker 04: that I would not have done this but for my perception of what probation is recommended. [00:23:48] Speaker 04: I think that's not... Does the record really support that? [00:23:52] Speaker 03: I don't think that's specifically... That's really the thrust of your art. [00:23:55] Speaker 03: Well, I don't think that's specific in the record, but it's implied, but that's not the showing we have to make. [00:24:00] Speaker 03: The showing we have to make, the government has to show that it did not affect the sentence. [00:24:06] Speaker 03: We don't have to show the district court's mistaken. [00:24:10] Speaker 04: But that's my whole point. [00:24:11] Speaker 04: We're going around in circles. [00:24:13] Speaker 04: So you're saying the record clearly shows. [00:24:16] Speaker 04: Well, I think the record clearly shows that it did. [00:24:18] Speaker 03: But it's not our burden. [00:24:21] Speaker 04: Well, but if you're going around in circles, you're saying the burden of the government is to show the record may show that. [00:24:25] Speaker 04: But district court did not rely on that. [00:24:30] Speaker 03: Right. [00:24:31] Speaker 03: The district court didn't have that in mind when it imposed the sentence. [00:24:38] Speaker 02: So what do you think are the best cases from our circular Supreme Court in support of the proposition that a mistake of fact [00:24:52] Speaker 02: um, requires a remand for re sentencing even when the district court didn't mention that mistake of fact when pronouncing the sentence. [00:25:05] Speaker 03: Well, when you say pronouncing the sentence, the district court says nothing other than, I sentence you to, I mean, you have to look at the whole sentencing. [00:25:15] Speaker 03: It's not an isolation of, I sentence you to 41 months. [00:25:19] Speaker 03: That's pronouncing the sentence. [00:25:20] Speaker 02: I mean, when the district court set forth the explanation of the application of the 3553A fact, [00:25:28] Speaker 03: Well, but that was prefaced by and ended by the district courts saying this is a significant recommendation of a variance that I took note of because that doesn't happen very often. [00:25:41] Speaker 03: That prefaced the entire sentencing. [00:25:44] Speaker 03: And at the end, when it was pointed out that that was not correct, the district court said no, they did recommend this. [00:25:50] Speaker 03: So to separate that out and say that that didn't affect the sentence, I just think would be an unrealistic view. [00:25:57] Speaker 03: And I would cite to your honor the Brown case, 892 Fed 3rd, 385, where the court said the government misstates the standard for prejudice. [00:26:08] Speaker 03: A defendant need not show that the sentence would have issued differently, but for the district. [00:26:14] Speaker 03: And this was a plain error case, Brown, but for the plain error. [00:26:17] Speaker 03: He need demonstrate only [00:26:19] Speaker 03: a reasonable likelihood that the sentencing court's obvious errors affected his sentence. [00:26:25] Speaker 03: I think it's just impossible to say that the district court having in mind and repeating from the beginning to the end of the sentencing that there was a significant upward variance recommended by probation would not have a reasonably likelihood that that didn't affect the sentencing. [00:26:45] Speaker 02: All right. [00:26:46] Speaker 02: If there are no other questions at this time, we'll give you some time. [00:26:49] Speaker 02: Thank you. [00:26:49] Speaker 05: Thank you. [00:27:04] Speaker 05: Good morning and may I please the court, Dan Lenners for the United States. [00:27:08] Speaker 05: The district court appears to have been under the misimpression that the probation's recommended 64-month sentence was an upward variance. [00:27:17] Speaker 05: But that was not procedural error because the court did not rely on that fact when imposing sentence. [00:27:25] Speaker 05: And I'd like to begin, if I may, by addressing Judge Wilkins' questions about the burden and Mr. Kramer's arguments, because they're incorrect. [00:27:34] Speaker 05: The defense has the burden of establishing procedural error. [00:27:39] Speaker 05: It is a procedural error to sentence a defendant based upon erroneous facts. [00:27:44] Speaker 05: Therefore, the defense bears the burden of establishing that Judge Chutkin sentenced this defendant based upon erroneous facts. [00:27:55] Speaker 05: If Judge Chutkin did so, then the government bears the burden of proving that error was harmless. [00:28:03] Speaker 05: We aren't in that second box here. [00:28:05] Speaker 05: We're in that first box because the defendant has not shown that Judge Chutkin based her sentence upon erroneous facts. [00:28:14] Speaker 05: She may have had an erroneous fact in her mind. [00:28:18] Speaker 05: She may have misunderstood the nature of probation's recommended sentence. [00:28:22] Speaker 05: But she didn't base her sentence upon that. [00:28:25] Speaker 05: And you know that by reading her recitation and discussion of the 3553A factors. [00:28:31] Speaker 05: At no point in that relatively lengthy discussion did she mention probation's recommendation at all. [00:28:38] Speaker 05: She focused on the defendant's specific facts and circumstances, most significantly the fact that he had gone to prison [00:28:47] Speaker 05: for six years for involuntary manslaughter that involved him killing someone with a gun. [00:28:54] Speaker 05: And then within 10 months of getting out of prison on that sentence and while still on supervision, possessed a gun. [00:29:01] Speaker 05: She focused on the fact that he of all people knew the harm that guns could do. [00:29:06] Speaker 05: He had been shot himself and he had accidentally killed someone with a gun. [00:29:12] Speaker 05: And so those factors are what she based her sentence on, not any misunderstanding of the nature. [00:29:18] Speaker 02: Let me ask you something about the law of sentencing generally. [00:29:23] Speaker 02: Isn't it the case in the precedent from our court that let's suppose a defendant makes five non-frivolous arguments in favor of mitigation. [00:29:40] Speaker 02: So they are five, you know, decent arguments for mitigation. [00:29:49] Speaker 02: In the district court, when going through the 3553A factors, refers to, you know, three of the five and says, well, you know, the defense has made lots of arguments in favor of mitigation, but I don't think any of them persuade me [00:30:10] Speaker 02: not to give an upward variance. [00:30:14] Speaker 02: And then the defense on appeal says, well, the district court didn't consider those two other arguments because the district court didn't mention them when it was going through the 3553A factors. [00:30:30] Speaker 02: So they weren't considered. [00:30:32] Speaker 02: So we need this to be remanded for re-sentencing. [00:30:36] Speaker 02: Haven't we said on multiple occasions [00:30:40] Speaker 02: that just because the district court didn't explicitly say something about every mitigation argument doesn't mean that it wasn't considered. [00:30:55] Speaker 02: It refused to to remand when that grounds. [00:31:00] Speaker 05: Yes, this court has said that with regard to non-frivolous mitigation arguments that by giving the reasons for imposing the sentence, the court has implicitly addressed and rejected and therefore considered the non-frivolous mitigation arguments that the court didn't expressly discuss. [00:31:19] Speaker 02: And the government asks us to do that all the time. [00:31:23] Speaker 02: And we affirm sentences based on that all the time under the rationale that, well, we don't have to have the district court say something explicitly for us to find that the district court implicitly considered, right? [00:31:43] Speaker 02: So if we were to have symmetry here, what's sauce for the goose has to be sauce for the gander, doesn't it? [00:31:50] Speaker 05: I don't think so, your honor. [00:31:51] Speaker 05: I think here, where the district court appears to have had a misunderstood fact in her mind, what the court needs to look at is the reason she gave for imposing the sentence. [00:32:02] Speaker 05: And those weren't even remotely related to probation's recommendation. [00:32:07] Speaker 05: So if they had sort of touched on or been closer to, maybe symmetry would [00:32:12] Speaker 05: way in favor of the defense's argument here. [00:32:14] Speaker 02: One of the first things that the judge says when the sentencing starts is that this is an unusual case because probation usually doesn't request and I think the district court said a significant upward variance right not just an upward variance but it doesn't the district court used the word significant. [00:32:32] Speaker 05: Yes, your honor. [00:32:33] Speaker 05: The district court said, I don't see probation coming in here recommending such variances very often. [00:32:38] Speaker 05: I took note of that. [00:32:39] Speaker 05: But then when the court imposed sentence and gave her reasons, she made no mention whatsoever of this misimpression. [00:32:47] Speaker 02: But how is the law, how is our law, how is our precedent making sense? [00:32:52] Speaker 02: If when it benefits the government, we say, well, we can imply that the district court considered defense mitigation argument. [00:33:05] Speaker 02: because even when the district court doesn't mention it, when it goes through the 3553A factors, because the district court gave a detailed reason explanation for its sentence. [00:33:21] Speaker 02: And then the defense says, well, can't we imply that the district court considered this erroneous fact that it thought was significant even when it didn't mention it? [00:33:34] Speaker 02: in its 3553A reasoning, and then you come in and say, oh, no, no, no. [00:33:42] Speaker 05: The end of sentencing after she had explained the basis for her sentence, which had nothing to do with probation's recommendation. [00:33:48] Speaker 02: But if Judge Chetkin is considering the upward variance because the defense says you gave him an upward variance and nobody asked for an upward variance, [00:34:03] Speaker 02: Probation didn't ask for an upward variance. [00:34:08] Speaker 02: And you were on proper notice when I said at the beginning of this that I was considering that. [00:34:14] Speaker 02: And I'm giving this without regard to whether probation requested an upward variance or not, because I think it's justified for the reasons I stated and for these further reasons or whatever. [00:34:27] Speaker 02: Why isn't that the way that we're supposed to run the railroad? [00:34:31] Speaker 05: My understanding of this court's and the general principles regarding objections is that an objection has to be sufficiently specific to put the court on notice as to what the defense is complaining was the error. [00:34:46] Speaker 05: The objection that the defense raised as to a lack of notice of an upward variance did not put the court on notice that of you improperly [00:34:59] Speaker 05: based a sentence on an upward variance when it was not, in fact, an upward variance. [00:35:05] Speaker 05: That's a different issue. [00:35:06] Speaker 05: If the defense had said with sufficient specificity to put Judge Chuck in on notice that they think she erred by relying on an erroneous fact when imposing her sentence, she could have corrected it. [00:35:18] Speaker 05: That wasn't the nature of the objection here. [00:35:20] Speaker 05: The nature of the objection was a lack of notice coming into the hearing. [00:35:24] Speaker 05: And I don't think that that [00:35:26] Speaker 05: sufficiently alerted judges. [00:35:28] Speaker 02: Is a district judge allowed to vary upward even when nobody has asked for an upward variance when probation doesn't ask for one and the government doesn't ask for one? [00:35:40] Speaker 05: Yes, of course, your honor. [00:35:42] Speaker 02: So why couldn't the district court, why didn't the district court just say that when it was, when the objection was made that [00:35:55] Speaker 02: You know, no one asked for the upward variance. [00:35:57] Speaker 02: Probation didn't ask. [00:35:59] Speaker 05: I don't know why Judge Shukken didn't say that, Your Honor. [00:36:02] Speaker 05: I think it's fair to say that entering a sentencing hearing, all defendants are on notice that the judge could vary from the guidelines. [00:36:10] Speaker 02: I know that you don't know why she didn't say that, but my point is, is that why isn't the fact that she didn't say that significant? [00:36:22] Speaker 02: Because if that was the obvious response, [00:36:27] Speaker 02: then she would have said that. [00:36:28] Speaker 02: Instead, she said, well, your objection is noted for the record. [00:36:33] Speaker 02: Couldn't that be construed that, well, I disagree with you because probation did request an upward variant. [00:36:41] Speaker 02: So your objection's noted for the record. [00:36:43] Speaker 02: I'm moving on. [00:36:46] Speaker 05: Regardless of how you interpret Judge Chuckin's comments in the moment, at the end of sentencing, after she had explained the basis for her sentence, which had nothing to do with probation's recommendation. [00:36:58] Speaker 02: But if Judge Chuckin is considering the upward variance because she thought that probation requested it, then that's the whole reason for the upward variance, or at least that's the motivating reason for the upward [00:37:15] Speaker 05: But for it to be procedural error, the sentence has to be based on erroneous facts, meaning the court has to say, I am sentencing you to X, and one of the reasons why is erroneous fact Y. That's my whole point, is that Judge Chutkin in this exchange might mean that Judge Chutkin is overruling the objection because [00:37:40] Speaker 02: She's like, you got notice because probation requested a variance. [00:37:45] Speaker 02: And that's why I'm giving the upward variance. [00:37:48] Speaker 02: Instead, she could have said, your objections overruled because I'm doing the variance of my own accord. [00:37:54] Speaker 02: I don't care what probation, whether probation requested an upward variance or not. [00:38:00] Speaker 05: I don't think it's fair to read this brief exchange as Judge Cutkin in any way indicating that her sentence was based on something she didn't say when giving the sentence, which is probation had recommended an upward variance. [00:38:14] Speaker 05: She gave extensive reasons for imposing what is a minor upward variance of four months. [00:38:21] Speaker 05: And they all had to do with this specific defendant, his specific circumstances, the circumstances of his prior crime. [00:38:28] Speaker 05: And none of them had to do with the government's recommendation, the defense recommendation, probation recommendation. [00:38:35] Speaker 05: It was all focused instead on the correct facts and 3553A factors. [00:38:41] Speaker 05: And that's why we don't think the defense has met its burden of showing that Judge Shuckin relied on erroneous facts when imposing that sentence. [00:38:51] Speaker 02: All right. [00:38:52] Speaker 02: Thank you. [00:38:52] Speaker 02: Thank you. [00:38:54] Speaker 02: We're out of time, but we'll be getting minutes. [00:39:02] Speaker 03: First of all, with respect to Judge Edwards question on page 140, step 145, where it says, I've already noted the defense objection to the upward variance. [00:39:14] Speaker 03: That doesn't give any indication that there was just a, that was about notice, but about the variance in general. [00:39:23] Speaker 03: I mean, the government's picking and choosing [00:39:25] Speaker 03: specific words. [00:39:26] Speaker 03: And this is says to the upward variance in general, it doesn't say anything about the notice. [00:39:33] Speaker 03: So I think that that further supports our argument. [00:39:36] Speaker 03: And I would just say that in McElwain, this court said [00:39:41] Speaker 03: The party defending the sentence must persuade the court of appeals. [00:39:45] Speaker 03: The district court would have imposed the same sentence absent the erroneous factor. [00:39:50] Speaker 04: This doesn't help me understand that you raised a precise objection. [00:39:54] Speaker 04: Raised an objection clearly on this record to the variance. [00:39:59] Speaker 04: But I don't see an objection by the defense to the district court allegedly relying on probation. [00:40:11] Speaker 04: in reaching the sentence. [00:40:12] Speaker 04: Where is that objection? [00:40:13] Speaker 04: What the district court may have been doing here is in light of the case laws, protecting yourself in that respect and saying anything else you want to raise here? [00:40:24] Speaker 04: And at that moment, I could read that to be, that's an invitation. [00:40:27] Speaker 04: If you think there was an objection to raise here with respect to the district court not relying on probation as a justification for the variance, that's when you would have said it. [00:40:39] Speaker 04: That's what the district court judges are doing a lot now. [00:40:42] Speaker 04: And in light of our case law, they're saying, OK, anything else? [00:40:45] Speaker 04: Put it on the table. [00:40:46] Speaker 04: You know what I'm doing. [00:40:48] Speaker 04: And even here, you're not saying [00:40:50] Speaker 04: Defense counsel is not saying, wait, wait, wait, you are relying mistakenly on a mistaken fact. [00:40:59] Speaker 04: That had been, I'm sorry. [00:41:02] Speaker 04: I thought the prior objection was to variance. [00:41:08] Speaker 03: As you say, generally. [00:41:10] Speaker 03: Well, there was an objective, it started by saying, [00:41:14] Speaker 03: Judge, you're not correct about the 64-month sentence. [00:41:18] Speaker 04: But now we're moving on. [00:41:19] Speaker 04: I understand all of that. [00:41:21] Speaker 04: And I understand why that would cause you to raise this on appeal. [00:41:25] Speaker 04: But then the district court then goes on to explain why I am [00:41:30] Speaker 04: Indulging a variance in this case and it does not include anything about what probation's recommendation was well, but the district judge Had started out saying wow, this is unusual probation had a lot to say but never goes on to say in light of that [00:41:47] Speaker 04: I'm really inclined to buy that. [00:41:48] Speaker 03: That's not what happened. [00:41:50] Speaker 03: Well, I think the whole sentencing was in light of that. [00:41:54] Speaker 03: Starting off a sentencing by saying, probations come in and recommended a significant variance, which I don't see very often. [00:42:01] Speaker 04: And I did note that. [00:42:02] Speaker 04: See, I need a case law to put a burden on you to be a little clearer in an objection of this sort so that we could avoid the morass that we often get. [00:42:13] Speaker 04: after sentencing as to who did what and why. [00:42:16] Speaker 04: And we're trying to say, make it clear. [00:42:17] Speaker 04: And the district court here is trying to protect herself by saying, OK, you generally objected to variance. [00:42:23] Speaker 04: I get it. [00:42:24] Speaker 04: Not to my relying on probation, to variance, which is the way I read the record. [00:42:32] Speaker 04: And district court says anything else. [00:42:34] Speaker 04: You don't say, wait. [00:42:36] Speaker 04: and then go on to say, or defense counsel does go on to say, no, wait, what we really mean to say is you are relying on probation's mistaken assumption about what probation recommended, and that's wrong, Your Honor. [00:42:49] Speaker 03: Well, every time the district court mentioned it, we said that's not correct. [00:42:54] Speaker 04: Yeah, but that has nothing to do with the district court. [00:42:57] Speaker 04: When the district court then summarized the reasons [00:43:01] Speaker 03: the sentence it did not include that well well first of all i think it did because it's it's it's starting out with saying implicitly it does because it's certainly not explicit i think that's right district court judge and that's really compelling to me i can't imagine you're not saying it [00:43:20] Speaker 04: Well, the district court said it at the very beginning. [00:43:22] Speaker 04: The district court started saying, wow, this is weird. [00:43:25] Speaker 04: And you objected. [00:43:27] Speaker 04: You said, that's really not a fact. [00:43:30] Speaker 04: And then the district court goes on to explain why I am sentencing with a variance. [00:43:36] Speaker 04: And it does not include because probation recommended it. [00:43:40] Speaker 03: But that's the underpinning of the entire sentencing. [00:43:44] Speaker 03: I know we're arguing back and forth, but I don't see how you separate it out. [00:43:50] Speaker 03: When the court said in McElwain, unless the government persuades the Court of Appeals that the district court would have imposed the same sentence, the district court did not itself give any [00:44:03] Speaker 03: any indication of non-reliance. [00:44:06] Speaker 03: I think if the district court had said, regardless of what the probation officer's recommendation. [00:44:11] Speaker 04: You see the way I'm thinking about it, Mr. Fram, we've been doing this so many years now. [00:44:19] Speaker 04: My view of this is, at the end, the district court is giving you your opening pursuant to our case law, so anything else. [00:44:28] Speaker 04: I want to explain why I'm and if your view as defense counsel is no, no, no, no. [00:44:34] Speaker 04: Wait, your real reason is and that's wrong. [00:44:37] Speaker 04: That fact is wrong and we want to make sure that's on the record. [00:44:41] Speaker 04: You didn't do that. [00:44:42] Speaker 03: Well, I don't I disagree, obviously, but you disagree with your obligation to have these for these reasons. [00:44:49] Speaker 03: Three times we tried to tell the district court it was mistaken every time the district court said no, they did recommend. [00:44:55] Speaker 04: And then the district court goes on to explain the reasons for the sentence. [00:45:00] Speaker 04: And they do not include because probation. [00:45:03] Speaker 04: We're relying on a fact regarding probation. [00:45:06] Speaker 04: It's wrong. [00:45:07] Speaker 04: I'm relying on a fact from probation. [00:45:09] Speaker 04: It's not to be wrong. [00:45:10] Speaker 03: And even at that point, just the page before that, we had said they recommended a guideline range and a within guideline sentence. [00:45:21] Speaker 03: It wasn't an upward variance. [00:45:23] Speaker 03: And there's this throwaway line, write OK, that I think is open to various interpretations. [00:45:30] Speaker 03: But it says your objection is noted. [00:45:32] Speaker 03: Why would the district court have noted our objection if it wasn't [00:45:37] Speaker 03: of the motion that the probation office had recommended. [00:45:41] Speaker 03: And then at the next page, they say, I've already noted your objection to the upward variance. [00:45:46] Speaker 03: Why would we say anything again? [00:45:48] Speaker 03: The district court has just said it's on the, first of all, every time we've said something, we've been rebuffed and told that they did recommend a variance. [00:45:57] Speaker 03: And then at the end, they say, once a district court says your objection is noted, [00:46:01] Speaker 03: to the upward variance. [00:46:03] Speaker 03: Once there's nothing else to put on the record, we've been assured by the district court that our objection's on the record. [00:46:10] Speaker 03: I got it. [00:46:10] Speaker 03: I understand what your argument is. [00:46:12] Speaker 03: I understand both of you. [00:46:14] Speaker 02: All right, thank you. [00:46:16] Speaker 02: Take the case under advisement.