[00:00:00] Speaker 01:
Case number 24, that's 3077 United States of America versus therapy.

[00:00:07] Speaker 01:
The balance is right for the balance for the elderly.

[00:00:13] Speaker 04:
Good morning.

[00:00:15] Speaker 01:
Good morning.

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

[00:00:16] Speaker 01:
Lisa right for Mr. Arrington.

[00:00:18] Speaker 01:
I'd like to reserve 2 minutes for rebuttal.

[00:00:21] Speaker 01:
The district court's imposition on re-sentencing of a 65 month upward variance from a guideline range of 140 to 175 months to the statutory maximum of 240 months was procedurally unreasonable in three independent respects.

[00:00:35] Speaker 01:
To quickly summarize, the court treated Mr. Arrington's post-sentencing rehabilitation as not relevant to the court's sentencing task.

[00:00:43] Speaker 01:
The court justified the 65-month variance in part on the shooting of Officer Daniels when the gunshot had already been accounted for as the court conceded, and the court failed to explain how the wrongfulness of inflicting that gunshot

[00:00:57] Speaker 01:
made Mr. Arrington worse than the typical defendant.

[00:01:00] Speaker 01:
And last, and where I'd like to start, the court justified the 65-month variance in part on the theory that the guidelines provided no punishment for the illegal and stolen nature of the gun.

[00:01:11] Speaker 01:
When the government has conceded that but for the illegal nature of the gun, his guideline range and his sentence would have been capped at 120 months.

[00:01:19] Speaker 04:
Let me start you back a little bit.

[00:01:20] Speaker 04:
So what's the status of his parole revocation?

[00:01:23] Speaker 04:
Because he served a sentence.

[00:01:26] Speaker 01:
He is serving on the parole revocation now.

[00:01:30] Speaker 04:
Okay.

[00:01:30] Speaker 04:
And you believe that this impact, if we were to rule with you, would take 65 months off of his sentence?

[00:01:36] Speaker 01:
Well, it would require if any of the errors we're pointing to are

[00:01:46] Speaker 01:
are firm, are correct, then the 65 months would not be justified, would need to be a resentence and resentencing because part of the justification would have been invalid for any of our three reasons, any one of them, because they all work together to create the 65 months variance.

[00:02:02] Speaker 01:
And if there's an error in it, it needs to go back to see what variance Judge Lamberth might impose.

[00:02:08] Speaker 04:
Well, and some of your suggestion for how you get there is a consideration of the post-rehabilitation factors.

[00:02:15] Speaker 04:
Right.

[00:02:16] Speaker 04:
But that is something that a court may consider, correct?

[00:02:21] Speaker 01:
Well, this court, I believe in Hunter, said that if the argument is non-furtherless, the court has to consider it.

[00:02:30] Speaker 01:
And here, the court, I think, had a misconception.

[00:02:34] Speaker 01:
He said it quite plainly.

[00:02:37] Speaker 01:
As he viewed his task, quote, I'm not sentencing the guy that's appearing before me today.

[00:02:42] Speaker 01:
I'm doing what I think would have been sentenced.

[00:02:44] Speaker 01:
Judge Robertson would have imposed.

[00:02:46] Speaker 01:
Were you there then?

[00:02:47] Speaker 01:
And this approach not only used a benchmark, used as a benchmark, a judicial decision that was based on retroactively unconstitutional guideline range plus, you know, other.

[00:03:00] Speaker 04:
But the rest of the quote says I have to sentence you with what I have today.

[00:03:05] Speaker 04:
So do you not think that despite what might have occurred earlier, you're relying kind of on one sentence and not the totality of the record?

[00:03:13] Speaker 01:
Well, it's a pretty blatantly incorrect way to look at it.

[00:03:18] Speaker 00:
Actually, it's correct because he's sentencing the defendant on the basis of the evidence that existed at the time of the original trial and sentencing.

[00:03:34] Speaker 00:
I mean, that to me is what he's saying.

[00:03:37] Speaker 00:
Of course he has to do that.

[00:03:39] Speaker 01:
Well, he says I'm not sentencing the guy that is appearing for it.

[00:03:42] Speaker 00:
Yeah, I know.

[00:03:43] Speaker 00:
That was after he said, you're not young anymore.

[00:03:48] Speaker 00:
Isn't it?

[00:03:49] Speaker 00:
I mean, that was the struggle.

[00:03:52] Speaker 00:
You're not young anymore.

[00:03:53] Speaker 00:
You're mid-age.

[00:03:56] Speaker 00:
It's been 24 years since you committed the offense, so you're not the same person.

[00:04:01] Speaker 01:
And he says the progress you've made is a good sign.

[00:04:03] Speaker 01:
You're on a different path.

[00:04:04] Speaker 01:
You're not that person anymore.

[00:04:05] Speaker 01:
And then he is saying, but don't let what I'm saying about this sentence set you back because

[00:04:13] Speaker 01:
Essentially, because even though I find that you are different, I'm not sentencing you as you stand before me.

[00:04:18] Speaker 00:
There's a whole line of cases, the Supreme Court included, that say you don't read an opinion as if it's a statute.

[00:04:28] Speaker 00:
And there's a comparable line to say that in oral presentations of reasons for giving a particular ruling, you don't read it as if it's an opinion that's been parsed and massaged.

[00:04:45] Speaker 01:
Well, I don't think there is ambiguity in the court's words.

[00:04:49] Speaker 01:
And the government acknowledges that Judge Lamberth gave no weight to this reason.

[00:04:54] Speaker 01:
And I don't think you can presume the error away in a case like this, because it was a very unusual case.

[00:05:00] Speaker 01:
It wasn't a typical resentencing.

[00:05:02] Speaker 01:
It was like a lightning strike situation where the Supreme Court

[00:05:05] Speaker 01:
you know, which never happens, makes the guidelines retroactively unconstitutional.

[00:05:10] Speaker 01:
Judge Robertson, through no fault of his own, never had a chance to give a constitutional sentence.

[00:05:14] Speaker 01:
And I think it was understandable that Judge Lamberth felt like he was taking Judge Robertson's place.

[00:05:20] Speaker 00:
But you can also see... Shouldn't the starting point be the statement of reasons that Judge Lamberth gave for the sentence?

[00:05:28] Speaker 00:
You start with the colloquy or the back and forth in the oral pronouncement, but shouldn't the starting point be the written statement of reasons that he gave?

[00:05:42] Speaker 01:
Well, I think the oral statement is what

[00:05:46] Speaker 00:
You know, they both factor in, but I mean, what he told the defendant... Under the statute, he has to give a written statement of reasons.

[00:05:54] Speaker 00:
He has to do both.

[00:05:55] Speaker 00:
He has to do both.

[00:05:56] Speaker 00:
And in his written statement of reasons, is there any indication that he heard?

[00:06:03] Speaker 01:
Well, yes, for my other reasons.

[00:06:09] Speaker 01:
Well, in the written statement of reasons, he's simply saying these are the reasons I'm going down and he doesn't talk about, I'm just pointing out that in making those findings, he didn't consider this counterweight that we presented.

[00:06:21] Speaker 01:
We argued

[00:06:22] Speaker 01:
This rehabilitation is relevant.

[00:06:24] Speaker 01:
And he essentially ruled because of the way he saw it.

[00:06:28] Speaker 01:
It appears that he was trying to give deference to Judge Robertson, saw himself as taking Judge Robertson's place, but had the timing, got the timing a bit confused.

[00:06:36] Speaker 01:
And I think it's understandable.

[00:06:38] Speaker 00:
Just on the rehabilitation point, the Pepper case, as I read, it says that the court may consider rehabilitation and determining whether to make a downward departure

[00:06:53] Speaker 00:
And Judge Lamberth wasn't going to make a downward departure.

[00:06:57] Speaker 00:
He made an upward departure.

[00:07:00] Speaker 00:
So Pepper kind of drops out of the picture, doesn't he?

[00:07:04] Speaker 01:
Well, I think the point is when weighing, and I think this court has said have to if it's not a frivolous argument, if something points down, you have to consider it.

[00:07:15] Speaker 01:
And it points down whether you're giving an upward or downward variance.

[00:07:19] Speaker 01:
But I'm happy to move to talk about

[00:07:23] Speaker 04:
So what I would want to know is what would you instruct us to do if we were to remand?

[00:07:29] Speaker 04:
What would you have us instruct a new district judge?

[00:07:32] Speaker 01:
I would have the court say that there was error in the 65-month variance, so that 240 months needs to be vacated and remanded for re-sentencing.

[00:07:42] Speaker 01:
And that's not saying Judge Lamberth couldn't still give a variance.

[00:07:46] Speaker 01:
Theoretically... When you say variance, not to say that he wouldn't still upward vary.

[00:07:52] Speaker 01:
Upward vary, right.

[00:07:52] Speaker 04:
But re-sentencing, you take a risk.

[00:07:54] Speaker 01:
Right, but some of his reasons are infected with error and we don't know if he had not made these errors if he would have given 65 or less.

[00:08:03] Speaker 03:
So if we were just focusing on the rehabilitation issue, is the remand, I just want to make sure I understand what the error is in your view, is it

[00:08:14] Speaker 03:
At bottom, he was supposed to consider Mr. Arrington's character today at the re-sentencing rather than what he thinks his character was in 2001.

[00:08:24] Speaker 03:
And so you have to rehabilitation towards.

[00:08:30] Speaker 01:
Essentially, I guess I would put it as far like.

[00:08:34] Speaker 01:
given that he's rehabilitated that ways into the 3553 factors like his history and characteristics.

[00:08:40] Speaker 01:
And if that was the only error, then I guess there could be a remand to weigh that.

[00:08:50] Speaker 01:
But I think there's these other errors that contributed to an amount.

[00:08:54] Speaker 03:
If that was the only error, can you give us your best argument that that was prejudicial?

[00:09:00] Speaker 03:
Yes.

[00:09:00] Speaker 03:
By not considering his rehabilitation by 2024, that might have changed the outcome.

[00:09:08] Speaker 01:
Yes.

[00:09:09] Speaker 01:
So I guess the government has argued.

[00:09:20] Speaker 01:
I don't think the government has argued that

[00:09:26] Speaker 01:
this error is harmless.

[00:09:30] Speaker 01:
But it's not harmless in light of the rationale about the shooting, because as we talked about in the brief, when Judge Lambert said I would give the maximum because of the shooting, that

[00:09:44] Speaker 01:
that statement was infected with this misunderstanding that the injury had not been accounted for.

[00:09:50] Speaker 01:
And then when it came time for the statement of reasons, the court withdrew that part of the justification, that premise for his statement that the injury, and just relied on sort of the general wrongfulness of inflicting the injury.

[00:10:06] Speaker 01:
And so that statement

[00:10:08] Speaker 01:
really no longer stands.

[00:10:10] Speaker 01:
And again, I guess the government does say that the government does say that the shooting alone called for 65 months and that therefore the rehabilitation is harmful, but the rehabilitation is a counterweight to that.

[00:10:25] Speaker 01:
So even if it's true that the judge thought

[00:10:28] Speaker 01:
it called for a full 65.

[00:10:30] Speaker 01:
He didn't consider something that pushed the other direction.

[00:10:34] Speaker 04:
The thing about what you're saying embedded in your comments is a suggestion that just because somebody has rehabilitated, they automatically get that consideration when

[00:10:46] Speaker 04:
Part of rehabilitation is so that you become a productive model for society.

[00:10:51] Speaker 04:
That should be something that you do.

[00:10:54] Speaker 04:
It's almost like your child doing well at school and they want so much credit for that.

[00:10:58] Speaker 04:
That's what they're supposed to do.

[00:11:00] Speaker 01:
I understand, but not everyone does.

[00:11:01] Speaker 01:
So when the court has an opportunity to re-sentence someone years later, it is relevant and it's been found.

[00:11:07] Speaker 04:
But also embedded in your suggestion is that we don't look at how egregious the conduct was in the first place.

[00:11:16] Speaker 04:
Sometimes it's just really bad, just like when people come before me being sentenced as a former district judge and they committed murder as their first offense.

[00:11:24] Speaker 04:
And then the defense counsel argues, oh, they have no prior record.

[00:11:28] Speaker 04:
Is it murder bad enough?

[00:11:30] Speaker 01:
Well, I understand that it's up to the court to weigh.

[00:11:32] Speaker 01:
The problem here is the court didn't give it any weight because of this misunderstanding that it wasn't relevant.

[00:11:38] Speaker 01:
He was conceiving his task as putting himself back.

[00:11:42] Speaker 01:
And I think the evidence of that.

[00:11:43] Speaker 00:
He never said it wasn't wrong.

[00:11:46] Speaker 01:
He said, I'm sentencing the person back then.

[00:11:49] Speaker 00:
We've been over that ground.

[00:11:51] Speaker 00:
One thing I want to comment on, you mentioned in passing with respect to the question that Judge Garcia asked about harmless error that the government never argued it.

[00:12:04] Speaker 00:
Harmless error.

[00:12:06] Speaker 00:
There's a case—the law of the circuit is that the government can't waive harmless error because it's for the benefit of the judiciary and our process.

[00:12:18] Speaker 00:
And the case is United States v. Price, P-R-Y-C, in the early 90s, in an opinion by Judge Williams.

[00:12:29] Speaker 00:
So you're not claiming that the government waived?

[00:12:32] Speaker 01:
No, no, I'm not saying they waived it, but I'm just, and they do say, I want to correct, they do say that

[00:12:41] Speaker 01:
that because the court said the shooting justified the maximum, which is a flawed statement that the court essentially retracted in part.

[00:12:51] Speaker 01:
But they don't deal with the fact that this is a counterweight.

[00:12:55] Speaker 01:
So even if you thought that was true, that he thought that, he still didn't consider something.

[00:13:00] Speaker 01:
I wanted to say that some evidence of the fact that

[00:13:05] Speaker 01:
the court thought he could not do that, that it was irrelevant, is the fact that he went back to determine the sentence and came back out from recess ready to said he had determined the sentence and he had not invited any allocution for Mr. Arrington, which probation pre sentence report didn't recommend a downward departure because of rehabilitation, did it?

[00:13:31] Speaker 01:
No, and I don't believe it recommended an upward variance either.

[00:13:35] Speaker 01:
It said no grounds, I believe.

[00:13:37] Speaker 01:
So this was coming out.

[00:13:40] Speaker 01:
But I think if the judge was taken into account, I'm not saying, Your Honor, that he can't say he's not persuaded by it.

[00:13:49] Speaker 01:
But it seems here he made a legal mistake.

[00:13:52] Speaker 01:
But if I can turn to the error about the illegal nature of the gun,

[00:13:58] Speaker 01:
because the government there has conceded that the court's finding that the gun count was effectively dropped out of the sentencing calculation was erroneous.

[00:14:08] Speaker 01:
The government acknowledges that the gun did not entirely drop out, quote unquote, and that but for the gun count, the guideline range calculation of 140 to 175 would have been capped at 120, meaning that the gun count effectively added 55 months

[00:14:25] Speaker 01:
to the guideline range on count one.

[00:14:27] Speaker 01:
And the court said that the count one offense level didn't account for the illegality of the gun.

[00:14:33] Speaker 01:
But without the gun count, the count one offense level could not be effectuated.

[00:14:37] Speaker 01:
And in that sense, it did affect the offense level of count one.

[00:14:41] Speaker 01:
So the illegality of the gun did add 55 months of punishment to the punishment for the assault.

[00:14:47] Speaker 01:
And the court was wrong in thinking it wasn't specifically accounted for.

[00:14:51] Speaker 01:
as independent, you know, lawful conduct.

[00:14:54] Speaker 01:
And the court tried, I mean, the government tries to get around this by spinning the record and saying that the court made a finding, quote unquote, that merely increasing the applicable statutory maximum did not fully account for the gun contact.

[00:15:07] Speaker 01:
But the court did not make any such finding or anything close to it.

[00:15:10] Speaker 01:
The court said nothing at all about the gun increasing the statutory maximum, let alone whether the resulting increase, 55 months, was enough to, quote, fully account for the gun itself.

[00:15:22] Speaker 01:
The court was focused on the technicalities of the offense level calculation rather than on what conduct was leading to what punishment.

[00:15:32] Speaker 01:
So because the 65-month variance was based in part on an erroneous understanding that the illegality of the gun had contributed nothing to Mr. Harrington's guideline range, when in fact it had already contributed 55 months, a remand is required on that basis alone.

[00:15:50] Speaker 01:
And we also believe, if there's no questions about that...

[00:15:59] Speaker 04:
We'll give you your.

[00:16:01] Speaker 04:
Thank you very much.

[00:16:14] Speaker 02:
May I please the court Timothy Cahill for the United States.

[00:16:17] Speaker 02:
The district court did not commit any procedural errors in resentencing Mr. Arrington, therefore a remand is unnecessary in this case.

[00:16:24] Speaker 02:
Judge Lamberth did not plainly err by declining to afford weight to Arrington's post-sentencing rehabilitation, particularly under the specific circumstances of this case, where Arrington had already completed his maximum term of incarceration.

[00:16:37] Speaker 02:
We acknowledge that in his oral statements, Judge Lambert, some of his language may have been inartful, but in the context of the arguments that he was presented with and was ruling on, we submit that the most reasonable interpretation of them is that he was explaining that he would not afford... So before we talk about what he actually said, can I just...

[00:16:53] Speaker 03:
understand your view of the law.

[00:16:55] Speaker 03:
So the very first 3553A factor is the history and characteristics of the defendant.

[00:17:02] Speaker 03:
If the judge had said, I'm not looking at your history and characteristics today, I'm looking at your history and characteristics as of 2001, is that an error?

[00:17:14] Speaker 02:
If there was nothing under the circumstances of the case to justify that, I think if he just flat out indicated that he believed as a matter of law that he would not be looking at anything after 2001, then I think that would be counter to Rhodes and Pepper.

[00:17:29] Speaker 03:
Okay.

[00:17:29] Speaker 03:
And so your next argument is, but the sentence was completed, so he didn't have to look through his history and characteristics today.

[00:17:37] Speaker 02:
So in any particular case, I think the key distinction I want to draw here is whether a court needs to consider an argument versus whether they need to consider a factor.

[00:17:45] Speaker 02:
So someone made an argument about whether a factor is relevant or not.

[00:17:48] Speaker 02:
But a court can decide, having listened to the arguments about that factor, that under the circumstances of a particular case, that factor doesn't bear any weight.

[00:17:56] Speaker 02:
That factor doesn't bear weight on the outcome of this case under these circumstances.

[00:18:01] Speaker 03:
I think everyone agrees that if what the judge had said was,

[00:18:07] Speaker 03:
I hear your argument about rehabilitation, but that's outweighed by your criminal history and your actions, that that would be fine.

[00:18:16] Speaker 03:
And then the next question would be, what if he just said, when your sentence has ended, your current characteristics are categorically irrelevant, which seems to be your argument.

[00:18:31] Speaker 02:
I think that was his basis and he explained that that was the basis.

[00:18:34] Speaker 02:
I think that's largely how we read his decision in this case.

[00:18:39] Speaker 02:
I think there's more than just that the sentence ended.

[00:18:41] Speaker 02:
I think there's also factors that the government had just argued to him about the fact that that was a sentence imposed by another jurisdiction.

[00:18:48] Speaker 02:
That jurisdiction had opportunities to review that sentence and had declined to reduce it.

[00:18:52] Speaker 02:
I think all of those play in here.

[00:18:53] Speaker 02:
I think our key is that under those particular circumstances here, including the fact that the sentence was fully completed, that he declined to afford weight to that factor, that that was within his discretion to do, that that was legally permissible and within his discretion.

[00:19:08] Speaker 02:
And that's how we read his comments.

[00:19:11] Speaker 03:
So you don't think he said,

[00:19:14] Speaker 03:
I'm not looking at the person in front of me today in his character.

[00:19:18] Speaker 02:
I think there's tension within his statements.

[00:19:21] Speaker 02:
I think he makes statements about Mr. Arrington being on the right path and sentencing the person who committed the crimes back in 2000.

[00:19:28] Speaker 02:
Then he also says immediately after that, I have to sentence you with what I have today.

[00:19:33] Speaker 02:
I think there's ambiguity in what he said.

[00:19:34] Speaker 02:
And given that ambiguity, I would refer to the Kenny decision that we cited in our brief, where

[00:19:41] Speaker 02:
taken in isolation on its face, the court said, the sentencing court said something about sentences have to be consecutive, which was incorrect under the guidelines.

[00:19:50] Speaker 02:
And this court declined to read that as an error of law, just taking that sentence, that fragmentary comment in isolation.

[00:19:57] Speaker 02:
It looked at the entirety of the comments.

[00:19:59] Speaker 02:
It looked at the arguments the parties had presented.

[00:20:01] Speaker 02:
It looked at the nature of the ruling and said, we don't read this as an error of law.

[00:20:05] Speaker 02:
In the context of what this judge was saying from the bench, we read this as the judge making a discretionary decision.

[00:20:13] Speaker 03:
But your version of his discretionary decision was that on the facts of this case, the defendant's current character is irrelevant.

[00:20:22] Speaker 02:
Certainly that it didn't warrant a reduction, that it didn't bear on reducing it because he had already served his entire sentence.

[00:20:29] Speaker 02:
Because to the extent that he was serving a sentence imposed by another jurisdiction, the court was going to decline to expedite that, where that other jurisdiction had declined to do so.

[00:20:38] Speaker 02:
Those were the arguments.

[00:20:39] Speaker 02:
Sorry.

[00:20:39] Speaker 03:
So my one question I have is what you're saying makes perfect sense if we only think of his rehabilitation as relevant to the need for incapacitation for recidivism purposes.

[00:20:51] Speaker 03:
That's entirely about the ongoing incarceration on a separate crime.

[00:20:55] Speaker 03:
And I understand your argument on that.

[00:20:57] Speaker 03:
But that's why I started by saying the very first factor is not the need for incapacitation.

[00:21:02] Speaker 03:
It's look at the history and characteristics of the defendant.

[00:21:06] Speaker 03:
And what argument is there?

[00:21:07] Speaker 03:
I'm struggling to understand the government's argument that you don't look at the history and characteristics of the defendant in front of you here today.

[00:21:16] Speaker 03:
I mean, the sentencing memorandum, more than half of it is about exactly this.

[00:21:21] Speaker 03:
my character has improved.

[00:21:24] Speaker 03:
And then at the end, there's a short section about, and you don't need to worry about recidivism, but it's look at my characteristics today.

[00:21:30] Speaker 03:
And if the court didn't do that, why isn't that an error?

[00:21:36] Speaker 02:
And so again, we read

[00:21:39] Speaker 02:
Judge Lambert's comments as not saying that he didn't even look at that.

[00:21:43] Speaker 02:
In fact, he clearly did look at it because he commented on it at the trial.

[00:21:47] Speaker 02:
We did not escape his attention.

[00:21:49] Speaker 02:
But whether or not he determined in this particular case, whether or not that bore any weight on the outcome of his decision.

[00:21:56] Speaker 02:
So I recognize the 3553A factors are something the court needs to at least look at in every case.

[00:22:02] Speaker 02:
But in our briefly cited case line, in fact, the statute itself suggests that just because the court has to look at those factors doesn't mean that they will have a bearing on the outcome on the sentence.

[00:22:11] Speaker 02:
In a particular case, the court might say under these circumstances, that factor does not affect the sentence I am imposing.

[00:22:18] Speaker 02:
And as long as there's a reason for that within the court's discretion, that wouldn't be a legal error or an abuse of discretion.

[00:22:24] Speaker 02:
And our interpretation of Judge Lamberth's comments on the entire record is that that's what happened here.

[00:22:32] Speaker 03:
And if I start from page 259 where he says, because I would presume Judge Lamberth knows the law as you're setting it out.

[00:22:42] Speaker 03:
And if I start it on page 259 where he says, I'm not sentencing you the person in front of me today.

[00:22:48] Speaker 03:
I'm sentencing you as if you were the person in 2001.

[00:22:53] Speaker 03:
Where do you want me to look in the transcript to persuade me that he actually did consider his current character?

[00:23:01] Speaker 02:
I mean, I would say the very next sentence is, I have to sentence you with what I have today.

[00:23:05] Speaker 02:
And I acknowledge there seems to be tension between those two.

[00:23:08] Speaker 02:
And that's why we look at the arguments he was responding to.

[00:23:12] Speaker 02:
It wasn't that these issues weren't fully fleshed out.

[00:23:14] Speaker 02:
They were in both the briefing and the arguments before him.

[00:23:17] Speaker 02:
And that's how we read his comments.

[00:23:19] Speaker 00:
And he also said, of all the young guys I've sentenced since when they were young, you're not that person anymore.

[00:23:28] Speaker 00:
And I took that from him, that he's aged.

[00:23:32] Speaker 02:
I think there's no other way to read his comments than that he is responding to what Mr. Arrington's attorney and Mr. Arrington had spoken about, his efforts at rehabilitation.

[00:23:42] Speaker 02:
The judge is commenting on them.

[00:23:43] Speaker 02:
But I think ultimately he made a discretionary decision that under the circumstances here, that did not warrant a reduction.

[00:23:51] Speaker 00:
And the other point that you made is that there's another case in this circuit that we decided where Judge Lambert specifically took rehabilitation into account to reduce the sentence.

[00:24:06] Speaker 02:
I think that was the Hunter decision.

[00:24:08] Speaker 02:
I think he actually did not end up reducing in that case, but he fully and it's more expressly certainly more than he did on this record.

[00:24:16] Speaker 02:
I will acknowledge more expressly considered and he properly applied Rhodes and wrote the Rhodes decision and this court affirmed and indicated that his analysis was correct.

[00:24:27] Speaker 02:
And so we don't even just have to deal with the presumption that judges know the law here.

[00:24:30] Speaker 02:
We have a

[00:24:31] Speaker 02:
published opinion saying that this court affirmed Judge Lamberth for correctly applying the very law that's at issue here.

[00:24:38] Speaker 02:
And that's why we view, to the extent that there's tension in his comments, we view them as in his inner full language, not as an error of law.

[00:24:45] Speaker 02:
I did also want to respond to the other argument that was addressed during the appellant's argument, which is about the consideration of the felon possession stolen gun charge.

[00:24:56] Speaker 02:
I wanted to make absolutely clear, the government does not concede that there was any error by Judge Lamberth here.

[00:25:03] Speaker 02:
To the extent that we acknowledge the statutory maximum played a role in the sentence, that seemed to be an obvious statement of law.

[00:25:09] Speaker 02:
The statutory maximum plays a role in every sentence.

[00:25:11] Speaker 02:
In determining the appropriateness of variance, the proper benchmark is the guidelines numerical range, which attempts through the application of categorical rules to measure an appropriate term of incarceration based on specific conduct in a particular case.

[00:25:27] Speaker 02:
So if a judge is varying from that, it's got to be based on factors that were not captured by those numbers.

[00:25:33] Speaker 02:
And with respect to that numerical range, Judge Lamberth was absolutely correct that Mr. Arrington's felon status and the aggravating fact that the gun was stolen did drop out in the sense that they played no role in determining the numerical range that he was looking at and that he was varying up work from.

[00:25:50] Speaker 02:
And we would submit that that's the appropriate benchmark that he was referencing, certainly in context, not the statutory maximum.

[00:25:58] Speaker 02:
there are no other questions from the bench.

[00:26:00] Speaker 02:
We would otherwise rest on the arguments in our briefing and ask that the judgment of the district court be affirmed.

[00:26:05] Speaker 04:
Thank you very much.

[00:26:05] Speaker 02:
Thank you.

[00:26:15] Speaker 01:
On that last point, um, thank

[00:26:22] Speaker 01:
Mr. Cale is saying that the error played no role in the numerical range, only the statutory max.

[00:26:31] Speaker 01:
But when the statutory max is less than the range, I think it's 5G, 1.1 or 1.2, they talk about you have to limit the range.

[00:26:42] Speaker 01:
So the range but four would have changed from 140 to 175 to 120.

[00:26:49] Speaker 01:
So it did affect not just the range, but the sentence.

[00:26:55] Speaker 01:
And I think he also said the stat max is always relevant, but it's not always relevant because it doesn't always bump up against the guideline range.

[00:27:02] Speaker 01:
So this case is different on the thing Judge Lambert said about I go with what I have today.

[00:27:10] Speaker 01:
Again, I think what he is saying there is I'm putting myself in Judge Robertson's place.

[00:27:15] Speaker 01:
I want to defer to him.

[00:27:16] Speaker 01:
You never got a constitutional sentence.

[00:27:19] Speaker 01:
Judge Robertson never had a chance.

[00:27:21] Speaker 01:
Now, I have to figure out what Judge Robertson would have thought back in 2001 if you were there then with this new legal information.

[00:27:29] Speaker 01:
And to do that, I only have what I have right now to make that decision.

[00:27:34] Speaker 01:
to figure that out.

[00:27:35] Speaker 01:
I think that's all he's saying there.

[00:27:37] Speaker 01:
And I just don't think you can read this sentence as not categorically refusing to give weight and

[00:27:46] Speaker 04:
But you also don't have in the record that he explicitly stated, I cannot consider the rehabilitation, like you don't have any affirmative statements that indicate he explicitly did not consider it.

[00:28:00] Speaker 01:
I mean, to us, this is explicit, I guess I would say, because that's what the rehabilitation is about, is how have you changed between who you were then and who you are today?

[00:28:11] Speaker 01:
And that's what he says.

[00:28:12] Speaker 01:
He's got it backwards there.

[00:28:14] Speaker 01:
And I do think, again,

[00:28:16] Speaker 04:
Yes, but even then it's a may, you know, like you can weigh it, but you can also discount it.

[00:28:25] Speaker 01:
True, but right.

[00:28:27] Speaker 01:
But here he's legally essentially putting it out of it's not just not relevant, which is different than saying I'm not convinced by it or it's outweighed by other things.

[00:28:36] Speaker 01:
I don't we agree he could do that, but that's not what he did.

[00:28:43] Speaker 01:
And I think unless there's other questions, thank you.