[00:00:00] Speaker 00:
Case number 24, that is 31-73.

[00:00:02] Speaker 00:
United States of America versus Michael Lawrence Rosohar at balance.

[00:00:08] Speaker 00:
Ms.

[00:00:08] Speaker 00:
Baty for the balance.

[00:00:10] Speaker 00:
Mr. Hovell for the eboli.

[00:00:12] Speaker 03:
Good morning Ms.

[00:00:12] Speaker 03:
Baty.

[00:00:13] Speaker 03:
Whenever you're ready.

[00:00:14] Speaker 00:
Good morning and may it please the court.

[00:00:16] Speaker 00:
Isra Baty on behalf of Michael Rosebar, I'd like to reserve two minutes for rebuttal.

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Mr. Rosebar appeals the district court's denial of his 3582 sentence reduction motion.

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The parties in this case agree that under step one of United States v. Dillon, Mr. Rosebar is eligible for a reduced sentence and his revised guidelines range is 87 to 108 months, which represents a 13 month reduction on the high end of the guidelines range.

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The parties also agree that under Dillon step two, the district court must assess whether the authorized reduction is warranted in whole or in part.

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The district court here aired because it failed to consider whether the authorized reduction was warranted in part.

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That is whether Mr. Rosebar deserved to have a sentence reduced to something between 108 and 119 months.

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Instead, the court here asked a much different question, an all or nothing question of whether Mr. Rosebar deserved a quote re-sentencing and that is problematic.

[00:01:15] Speaker 02:
Let me tell you a little bit about just where we are in terms of context of time.

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I believe that he is projected to complete his prison sentence on November 19, 2025 and mind you, a day

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extra in prison, of course, I'm sensitive to that.

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But what are you gaining here?

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You know, because you have to wait on the opinion.

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What are you actually gaining through this process for him?

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Right.

[00:01:40] Speaker 00:
Yeah.

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You know, Mr. Rosebar maintains an equitable interest.

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in having his sentence reduced because that reduction in sentence bears on the likelihood of his any future motion to reduce his term of supervised release.

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And that's something that this court's addressed in APPS where the court stated that where a supervised release term is still yet unserved, quote, because of the relationship between a prison sentence and supervised release, there seems to be a very substantial likelihood that a ruling

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that incarceration should have been shorter would influence the district court's readiness to reduce his term of supervised release.

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So obviously, that is one factor that Mr. Rosebar still has an interest in.

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Of course, the projected release date is also subject potentially to change.

[00:02:29] Speaker 02:
So not contesting conviction and then not contesting criminal history points.

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That's correct.

[00:02:34] Speaker ?:
Okay.

[00:02:34] Speaker 03:
Would that consideration prevent this case from becoming moot on November 19 if we haven't ruled by then?

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So there wouldn't be a mootness issue under APPS.

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That's correct.

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Based on what you just said.

[00:02:50] Speaker 00:
Yes, correct.

[00:02:53] Speaker 00:
Uh so, just to revisit why the why the term resentencing in the court's multiple references to the to resentencing is problematic.

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First, that that reference and that understanding that the district court espoused is a is a blatant contradiction of the language in Dillon.

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Dillon stated quote 3582C2 does not authorize a sentencing or resentencing proceeding.

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Secondly, the the district court's understanding of the inquiry being

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you know, does does Mr. Rose bar deserve a re sentencing is an all or nothing inquiry that sets the bar far too high for Mr. Rose bar.

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It further prevents the prevented the district court from assessing whether he was in fact whether his mix of 35 53 a factors and his post conviction conduct allowed him to uh to

[00:03:40] Speaker 02:
to deserve a set a reduction in part and that is an inquiry that the court did not point to generally when we have these uh sensing reduction um schemes if you will from the guidelines there seems to be a built-in assumption that the guidelines were reduced because they were too high under that particular conviction

[00:04:08] Speaker 02:
And so does that mean that because the guideline sentences are low, that there's an assumption that defendants should automatically be sentenced within the new range because that's the more applicable range at that point in time.

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And that's the whole reason why the Sentencing Commission reduced the range.

[00:04:26] Speaker 00:
Yes, I mean, I think that's a fair interpretation.

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I think Dylan obviously left discretion to the district court to decide whether or not the 3553A factors under step two warrant a reduction.

[00:04:40] Speaker 02:
Of course, we agree that 3553A factors, you're calling it kind of a re-sentencing, but why not couch it as a re-evaluation

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of the 3553A factors and that you wouldn't look at has anything changed substantially from those factors.

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And in this case, the judge looked at victim impact.

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What is the loss?

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Certain things had not changed.

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Yes, he's got Mr. Rosebar favor both

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characteristics with respect to his post incarceration relief, but the judge seemed to focus on the lack of remorse or some of the things that he did not believe had changed from the first citizen.

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That is correct.

[00:05:26] Speaker 00:
I think your honor is hitting one of our points on the head, which is that there are a number of factors that did not change.

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The nature and circumstances of the offense did not change.

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The two factors that did change the guidelines range, as well as his mitigating conduct in prison, overwhelmingly favored a reduction in sentence.

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So we agree that the court struck the wrong balance, even assuming it engaged in the right legal inquiry, it struck the wrong balance by looking at factors that did not change.

[00:06:03] Speaker 02:
Recidivism would be one of those factors too, right?

[00:06:06] Speaker 00:
Correct.

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Recidivism is one of those factors, the likelihood of recidivism.

[00:06:09] Speaker 02:
Looking at lack of remorse and impact on victims, the failure to really decrease the restitution as part of that recidivism piece too.

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The court did look at the likelihood of recidivism, but we contend that the court did not engage in the right balancing as to that inquiry.

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It looked at the nature of the offense, and then it referred to Mr. Rosebar's filing of various motions post-conviction.

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but gave a brief nod to some of his mitigating conduct, did not actually weigh that conduct.

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It appears that the court did not actually weigh that conduct in its inquiry.

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And that's why we pointed this court to Martin and McDonald, the two Fourth Circuit opinions, where the Fourth Circuit actually stated that the failure of the district court to give any weight to the, quote, redemptive measures that the defendant took was error.

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And here also, the court did not give any weight

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to those redemptive measures.

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And had it done so, had it actually engaged in the right inquiry, which is any part of this reduction, any part of this authorized reduction warranted, it certainly would have weighed those mitigating factors in the analysis and found that some reduction is certainly warranted.

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And again, in Martin, it's on point because there the defendant had very similar factors, a clean disciplinary record, minimal security prison, elderly age, various other prosocial factors, including strong family relationships.

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And the district court wholly denied any resentencing that he was warranted, sorry, that he was eligible for.

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And the Fourth Circuit said that the court must explain why, in light of the ample mitigation, the sentence remains wholly undisturbed.

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And here, too, there was ample mitigation.

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But the court decided to ask the wrong legal inquiry, which is a resentencing warranted, rather than asking.

[00:08:10] Speaker 03:
The district court, just reading from its opinion, says the court turns now

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to the 3553A factors to determine whether in its discretion, the reduction is warranted in whole or in part under the circumstances of this case.

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That is correct.

[00:08:28] Speaker 03:
That's the right legal standard.

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We don't contest that the court stated the right legal standard.

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What we contest is its application.

[00:08:36] Speaker 03:
Then you're just fussing over the discretionary balancing.

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No, so as this court well knows, stating the right legal standard is one part of the inquiry.

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This court has repeatedly affirmed in Agibe, in Brown, Judge Edwards' opinion in Brown, that it's the application of that legal standard to the individual defendant that matters.

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And the court needs a reason basis.

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We would review the application for abuse of discretion.

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That's correct.

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But the court needed to provide a reasoned basis for this court to be able to exercise adequate appellate review.

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And here, the court, every time the court engaged in an individualized inquiry, it stated resentencing.

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Does Mr. Rosebar deserve a resentencing?

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That is not the same inquiry as asking whether any part of this authorized reduction.

[00:09:32] Speaker 03:
Resentencing, I mean, it's just shorthand for in whole or in part.

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which is what he says in the topic sentence where he's diving into this.

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I understand.

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And again, the reason why that's problematic is, first of all, it contradicts Dylan.

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Dylan expressly stated 3582 does not authorize a sentencing or a resentencing.

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Second of all, again, it's an all or nothing inquiry.

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There's nothing in that inquiry that asks is any part of that.

[00:10:02] Speaker 02:
If he had one to have the reduction, would you then consider that the re-sentencing was OK?

[00:10:09] Speaker 02:
I'm sorry, can you repeat that?

[00:10:10] Speaker 02:
If he had gotten the reduction, would you then consider the re-sentencing, as you allege, was OK?

[00:10:14] Speaker 00:
So it's a reduction in sentence.

[00:10:17] Speaker 00:
And if he had gotten his actual reduction, we would obviously

[00:10:22] Speaker 00:
I mean, that would be okay, but that's not a resentencing.

[00:10:26] Speaker 00:
That is a reduction in sentence, right?

[00:10:28] Speaker 02:
That's why I'm calling it a re-evaluation of the factors that you're saying are resentencing, but I think that's semantics.

[00:10:35] Speaker 00:
Right.

[00:10:36] Speaker 00:
I mean, the question is, what did the district court here do?

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And in looking at its individualized analysis, every time the court

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every time the court looked at the various factors, victim impact, the nature and circumstances of the offense, the post-conviction conduct, the likelihood of recidivism, every time the court stated, does this weigh in favor of resentencing?

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And at the end of its opinion, it did not say or even indicate that it engaged in an inquiry as to whether the reduction was authorized in part.

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And I know that the term resentencing, it might be confusing.

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The point is, does it seem from this opinion, does it appear that the district court actually engaged in an inquiry of whether any part of the reduction was authorized, any part, two months, four months, six months?

[00:11:34] Speaker 00:
And it does not appear that the court engaged in that inquiry.

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And it certainly, for purposes of appellate review,

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You know, there's not a reasoned basis under, you know, Aguibe and Brown, again, that would allow this court to be able to review that decision and say, yes, the court engaged in that partial inquiry.

[00:11:54] Speaker 03:
Any other questions, Judge Charles, Judge Edwards?

[00:11:59] Speaker 03:
OK, we'll give you some rebuttal time.

[00:12:11] Speaker 03:
Thank you.

[00:12:12] Speaker 04:
Good morning.

[00:12:13] Speaker 04:
May it please the court?

[00:12:15] Speaker 04:
Mark Hobel for the United States.

[00:12:17] Speaker 04:
The district court did not abuse its discretion in denying the 3582C2 motion.

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It committed no legal procedural error, and its denial of a sentence reduction pursuant to the 3553A factors was substantively reasonable.

[00:12:36] Speaker 03:
Do you think this will moot if we manage not to get an opinion out by November 19?

[00:12:43] Speaker 03:
Or do you agree with your colleague?

[00:12:45] Speaker 04:
To be honest, your honor, that was my assumption coming in, is that it would moot.

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I hadn't looked at EPS or really thought about that issue, but it had been my assumption that it would moot.

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With respect to, I guess my plan was simply just to respond to a few of the points raised by Mr. Rosebar's counsel here.

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First, as to the legal question, the procedural issues,

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uh, uh, Rose bar argues that the district court, um, uh, treated this as a plenary or sentencing proceeding didn't follow Dylan treated this as an, as an all or nothing, um, approach.

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And that's belied completely by the district court's thorough order.

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Um, it, um,

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stated, as Judge Pants has pointed out, at page 85 of the appendix, it specifically applied the correct legal standard and asked whether a sentence reduction is warranted in whole or in part under the circumstances of this case.

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It also, at page 87 of the appendix and page 7 of its order, specifically noted that factors, that the nature circumstances and scope of the defendant's fraudulent behavior weigh against

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any re-sentencing.

[00:14:00] Speaker 04:
So it clearly recognized that it had the authority to grant a partial reduction in sentence, but found, under its discretionary balancing of the relevant factors, that no reductions weren't there.

[00:14:16] Speaker 02:
Would you agree that there needed to be a re-evaluation of the factors?

[00:14:20] Speaker 02:
Like you couldn't just simply say, in relying on what I've previously sentenced, I find that there's no need for a reduction, if that's all that happened.

[00:14:28] Speaker 04:
I agree with that.

[00:14:30] Speaker 04:
I agree with that completely.

[00:14:31] Speaker 04:
I note that this was a different judge.

[00:14:33] Speaker 04:
This was Judge Coler-Cattelli, I believe, and Judge Hogan was the original sentencing judge.

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So there was a reevaluation in that respect.

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And there was a specific reevaluation conducted in this order.

[00:14:46] Speaker 02:
And are you familiar with Judge Roger Gregory's opinion in the Fourth Circuit stating that just to merely recite your prior sentencing factors essentially, that's not the basis for denying a sentence reduction.

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

[00:15:03] Speaker 04:
And I believe that was a concurrence in the context of a compassionate release, which is a slightly different posture than a defendant would have to show extraordinary and compelling reasons.

[00:15:15] Speaker 04:
The district court here did correctly note that it had to evaluate this pursuant to the 3553A factors and it may, discretionarily may consider post-conviction information.

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And in fact, it did so here and balanced it very carefully.

[00:15:37] Speaker 04:
I'd suggest that Mr. Rosebar's counsel suggests that the district court struck the wrong balance, and that's not a basis for this court to reverse as an abuse of discretion.

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The balancing of the factors is entrusted to the discretion of the district court.

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And so long as it was substantively reasonable, and it was here, this court should

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affirm.

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There was a question, I believe Judge Childs, as to whether this court should, whether in a 3582C2 motion, there should be an assumption that the new guidelines range is appropriate.

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And this court has rejected that.

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And I point the court to Gallivies and United States v. Jones, which was cited in Gallivies.

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which specifically said that there is no downshift assumption that as long as the trial court appropriately balances the 3553A factors, the ordinary substantive reasonableness review applies.

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The fact that another judge could have weighed the factors differently doesn't mean that Judge Kohler-Kotelli abused her discretion in weighing them the way she did.

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And indeed, given the serial frauds perpetrated by Rose Barr that literally destroyed people's homes, I think it was a fully appropriate balancing of the factors here in weighing his

[00:17:03] Speaker 04:
clearly recognized his admirable efforts in prison, his work, disciplinary and education in prison, against his utter lack of remorse and drew the appropriate inference that that lack of remorse in the nature of his crimes means there's a significant likelihood he will reoffend when he is released.

[00:17:25] Speaker 04:
So, and then just very quickly to note, before I sit down, Rosebar has pointed to a couple of decisions from the Fourth Circuit, Martin and I believe McDonald.

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And this case is very different from Martin and McDonald.

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And Martin and McDonald, the district courts did not even mention the positive rehabilitative information in their very, very brief

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orders denying 35A2C2 motions here, the district court clearly recognized, again, deemed it admirable and simply found that it was outweighed by other factors.

[00:18:04] Speaker 04:
So I guess unless there are no further questions, we would ask that this court affirm.

[00:18:11] Speaker 01:
I want to be clear.

[00:18:13] Speaker 01:
You were a little bit quick in your response on potential mootness.

[00:18:19] Speaker 01:
I was surprised that you were saying, I don't know, I just assumed it would be in our favor.

[00:18:24] Speaker 01:
I think that's not correct under the law.

[00:18:26] Speaker 01:
I don't think it would be moot under EPS.

[00:18:29] Speaker 01:
And that line of cases, if we were to determine that they had a viable petition or a viable appeal because of the

[00:18:41] Speaker 01:
what the Supreme Court has said, there are other factors to be considered, even if your sentence has been completed.

[00:18:47] Speaker 04:
Right.

[00:18:48] Speaker 04:
That may well be true.

[00:18:50] Speaker 04:
I had not thought to look at apps or thought about the supervised release question.

[00:18:55] Speaker 01:
You're saying that too comfortably, but I'll leave that for another day.

[00:18:59] Speaker 01:
I mean, it's a potential issue.

[00:19:01] Speaker 01:
We'd like to hear from the parties on potential issues.

[00:19:05] Speaker 01:
I want to make sure you're not suggesting to the court that the government's position is it would yes definitively would be moved that's because I don't think that's right under the law it depends it would certainly depend on what we decided to do but if we were inclined to go with their position it was after the november 19th date that case is not moved right and and and in part you know this is um

[00:19:30] Speaker 04:
You know, there is still more than a month and a half remaining.

[00:19:34] Speaker 04:
And of course, any single day, any single day in prison, you know, would not moot the case.

[00:19:41] Speaker 04:
So this may not be right.

[00:19:42] Speaker 01:
We're talking about the potential mootness that Epps and those line of cases were talking about where the sentence is done and the claim is made.

[00:19:52] Speaker 01:
Well, there's nothing to be said.

[00:19:53] Speaker 01:
And the court said that's not accurate.

[00:19:56] Speaker 04:
Right.

[00:19:57] Speaker 04:
If the court would like the government to look into this further and submit, so I'm happy to do that, I just don't know.

[00:20:02] Speaker 01:
I just want to make sure you're not boldly asserting something that surprised me, but you were mostly saying, I haven't thought about it, is that right?

[00:20:09] Speaker 04:
Oh, that's right.

[00:20:10] Speaker 04:
It was the opposite of bold, Your Honor.

[00:20:12] Speaker 04:
A very caveat, I suppose.

[00:20:14] Speaker 04:
You meekly suggested.

[00:20:15] Speaker 04:
Well, I don't want to go that far, but that's up to the court.

[00:20:18] Speaker 04:
You can go that far.

[00:20:19] Speaker 04:
Thank you.

[00:20:20] Speaker 04:
Thank you.

[00:20:20] Speaker 04:
All right.

[00:20:20] Speaker 04:
Thank you.

[00:20:21] Speaker 04:
Thank you, Counselor.

[00:20:26] Speaker 03:
We'll give you two minutes.

[00:20:30] Speaker 00:
Sure.

[00:20:30] Speaker 00:
Thank you.

[00:20:32] Speaker 00:
Just a couple of quick points.

[00:20:34] Speaker 00:
The government points to the word any.

[00:20:37] Speaker 00:
That word was used once in the district court's analysis.

[00:20:43] Speaker 00:
Again, there's no indication in its analysis of appendix pages 86 to 89.

[00:20:49] Speaker 00:
At no point did the court consider whether a partial reduction was warranted.

[00:20:54] Speaker 00:
I thought an analogy might be helpful here to understand why the court did not engage in the partial inquiry as the government asserts.

[00:21:04] Speaker 00:
Let's say that at my house, I have a policy where my kids are eligible for a slice of cake if they've eaten dinner.

[00:21:11] Speaker 00:
And I must decide whether they get that slice of cake in whole or in part.

[00:21:15] Speaker 00:
And let's say that my child asks me after dinner, he's eaten dinner.

[00:21:19] Speaker 00:
I would like half a slice of cake because I know I've been fighting with my sister.

[00:21:23] Speaker 00:
I know you're upset with me.

[00:21:24] Speaker 00:
I would just like half a slice of cake.

[00:21:28] Speaker 00:
If I just say no, I have not engaged in the right inquiry.

[00:21:32] Speaker 00:
I need to determine whether he is entitled to any part.

[00:21:35] Speaker 00:
Is he entitled to a quarter of the slice of cake, a third of the slice of cake?

[00:21:39] Speaker 00:
I might deny him.

[00:21:40] Speaker 03:
But if you ask yourself, is he entitled to cake in whole or in part?

[00:21:45] Speaker 00:
Right.

[00:21:46] Speaker 00:
If I've engaged in that inquiry, if I've correct, if I've done that inquiry, if I have in fact engaged in that inquiry and said, is he entitled in any part to the slice of cake?

[00:21:58] Speaker 00:
Then you are correct.

[00:22:00] Speaker 00:
But if I simply say, no, you don't get half.

[00:22:03] Speaker 00:
And that's all I've said.

[00:22:04] Speaker 00:
And all I've engaged in is does he get half?

[00:22:06] Speaker 00:
than I have not, and that's what the district reported here.

[00:22:08] Speaker 01:
It really depends on the household.

[00:22:09] Speaker 01:
A lot of kids would know exactly what you would.

[00:22:11] Speaker 01:
And I think a lot of members of our audience might understand that, too, but that is essentially what... Like, in the rules of this house, you violate my rules, you get no part of the case.

[00:22:19] Speaker 02:
Right, exactly.

[00:22:20] Speaker 02:
But even under your hypo,

[00:22:24] Speaker 02:
You make an assumption that the judge has to ask or put on the record the specific question when everyone knows why you're there at that hearing.

[00:22:35] Speaker 02:
And then if the judge goes back into discussing the 3553A factors,

[00:22:41] Speaker 02:
and basically answers the question without stating the question while you all know that you're there.

[00:22:48] Speaker 02:
Is that not sufficient?

[00:22:50] Speaker 00:
Well, all we know is that what is written in the opinion, right?

[00:22:53] Speaker 00:
There was no transcript from this hearing and the judge stated the correct legal standard.

[00:22:57] Speaker 00:
But in this application, there was no point at which the court

[00:23:01] Speaker 00:
the court looked at is any part of this this uh authorized reduction warranted, right?

[00:23:08] Speaker 00:
And if the court had said, I balance these factors, I've considered the mitigating evidence and no part of this authorized sentence is warranted, we would be in a different position but this court has stated numerous times in a and brown again that simply stating the correct legal standard is not sufficient.

[00:23:24] Speaker 00:
It's the application of that legal standard that needs to be reasoned

[00:23:28] Speaker 00:
It needs to be described, and it needs to provide an adequate basis, a demonstrated reasoned decision making, and an adequate basis for appellate review.

[00:23:37] Speaker 00:
That's been well established in this court.

[00:23:40] Speaker 00:
And here, there's nothing in this opinion that provides that demonstrated reasoned decision making that allows this court to exercise adequate.

[00:23:49] Speaker 01:
You really can't read the district court to be saying recidivism outweighs the other considerations, given the way that opinion was written.

[00:23:56] Speaker 01:
Isn't that what's being said?

[00:23:57] Speaker 01:
And like a remorse.

[00:24:00] Speaker 01:
And like remorse.

[00:24:02] Speaker 01:
It seems like it leaps right out and says, I know all of what I'm supposed to consider, but these two outweigh the others.

[00:24:09] Speaker 00:
You know, I would be with you, your honor, if she had said no part of this authorized sentence is warranted.

[00:24:18] Speaker 00:
But to me, looking at, if we're talking about just risk of recidivism, and we know what the policies of the Sentencing Commission is, we know that they've crunched the numbers, and that's why they even enacted Amendment 821, in addition to all his pro-social factors and his mitigating evidence,

[00:24:34] Speaker 00:
That to me suggests that at least some part, some part of this one changed factor warrants a partial reduction.

[00:24:43] Speaker 00:
And I don't, we simply disagree that the court has engaged in that inquiry.

[00:24:48] Speaker 03:
Any other questions?

[00:24:51] Speaker 03:
Thank you.

[00:24:51] Speaker 03:
Thank you, counsel.

[00:24:52] Speaker 03:
The case is submitted.