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Case number 24, 3032, United States of America versus James Fitzgerald honesty appellants.

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Mr. Katzoff for the appellant, Mr. Fithan for the appellate.

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May it please the court.

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Good morning.

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My name is Howard Katzoff, attorney for James honesty appellant in this case.

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It's a criminal case involving Mr. Honesty's plea agreement, written plea agreement to plead to two counts of an indictment, a felon in possession of a firearm and possession with intent to distribute PCP.

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The plea agreement included certain promises both ways, but significantly included the government's promise to allocute or to cap its allocution at the top of the applicable guideline range as determined by the court.

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Mr. Honesty contends that the totality of the government's allocution supported a position that the higher, the next highest guideline range was perhaps more appropriate, at a minimum that the applicable guideline range did not seem to be appropriate.

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and uh is claimed that the uh based on the breach of the plea agreement by the government that he should uh have his sentence vacated and be remanded for resentencing and we would submit the court should apply the three factor test.

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We think the case should probably be reassigned to a different judge.

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Do you have any any support for reassignment case in which we have

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reassigned in a situation like this as sentencing?

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I think King Gore was a reassignment, a case where the factors aligned for reassignment.

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I believe the Wolf case was one where the factors were discussed.

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And in that case, reassignment was not.

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I would say in this case, what we have is a plea and sentencing.

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So the matter is relatively.

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much less in terms of a record than a trial matter.

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And therefore, the use of resources or the potential waste of resources is minimal.

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We always say you can't, you can't unring the bell.

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I would submit that, you know, for the judge and the judge's determinations,

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and considering the issues that we believe were improperly raised, that that should swing in favor of a reassignment and the appearance of fairness and justice.

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Looking at the three factors, because it's a plea and sentencing, because you can't unring the bell, I would submit that the King Goor should apply.

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And what's your best support for your assertion that the government sentencing memorandum, the statement that the guidelines did not accurately capture the prayer of criminal history, that that to the extent that we were only to recognize that as clear error, what's your best support for the notion that that was prejudicial to Mr. Honesty, if you rejected all your other

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assertions of error.

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Which particular?

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In the sentencing memorandum.

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Well, the sentencing memorandum starts with, the problem is it starts with inviting the judge to consider variance.

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That's what I'm referring to.

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And so assuming we thought that was error, that it did invite a variance,

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If that were error, what's your best basis for saying, well, that's prejudice here?

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Because there's a lot of other, if we were to only hold that that was error, there's a lot else that the district judge refers to in support.

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of the variance that he applied.

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Well, it's sort of the timing is the way I look at it.

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The government submitted its memorandum and invited the court to consider variance by the language of the written advocacy.

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But at the same time,

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within the written memorandum and then repeated and again emphasized in the oral advocacy were the indications specifically that the criminal history did not accurately capture

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the criminal history of Mr. Honesty, which specifically invites consideration of the higher guideline range.

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You opened your answer by saying something about timing, but I'm not sure that I caught what your point of timing was.

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So we start with the written advocacy.

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And that is before the judge issues an order saying it's going to consider basically all the things that were mentioned in the government's written memorandum.

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So the written memorandums first, the judge then says, now I'm considering an upward variance or departure and lists literally the factors that the defense, that the government raised.

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And so it's almost impossible to determine that the judge wasn't influenced by that.

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And under the standard of being able to show a reasonable likelihood that it affected the sentence,

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under, because the government's memorandum raised those issues, the under-representation of the criminal history, it had inflammatory information about crime rates, gun violence, things that apply to everyone that wouldn't necessarily support a variance, specifically providing information which

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the judge then took to

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determined that a career offender, that he was a de facto career offender when technically he was not.

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None of the offenses that the judge referred to would have made him a career offender.

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And so these are all run-of-the-mill drug and gun kinds of factors that are properly considered.

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But the government's memo started it and then it became

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exaggerated and emphasized more significantly in the oral advocacy when the AUSA again repeated that the 92 to 115 range appeared to be appropriate, that the current criminal history points don't really capture the totality of the criminal history.

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The government

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discussed and provided information about a victim impact statement from 12 years ago, not the current case, but 12 years ago, which was inflammatory, seemed to be marginally relevant.

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Certainly, when you figure that the government's responsibility, that those kinds of discussions went far beyond what was permitted under the plea agreement.

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I mean, the government argues that all of that

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information is relevant to support the government's allocution for a sentence at the top of the guideline range, the agreed guideline range, the corrected agreed guideline range.

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And then the plea agreement has this specific proviso, the reserves, the party's rights to answer inquiries from the court, including

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if the court is contemplating a sentence outside the guideline range.

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And the district court here obviously did request argument on that.

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How, in your view, should the government have responded differently from how it did respond in exercising its prerogative to answer those inquiries?

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Well, I would say that it should have answered it

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war in line with some of the cases where, and I don't remember the specific names, but they're in the brief, where prosecutors held firm and said, this is our agreement.

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And literally said that.

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excuse me, they did, but, but on multiple times book ended with it.

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Well, actually one time he said, I don't think it didn't even say unequivocally.

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I can't do this.

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It said, I don't think I can do this.

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But when, you know, the whole concept of

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giving lip service to the plea agreement while at the same time providing information that suggests a different guideline range.

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Those weren't factual summaries that were given.

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Those were conclusory statements suggesting in violation of the agreement.

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It sounded like all the facts that were given were arguments in favor of

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the high end of the guidelines range.

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So back to Judge Pillers question, what was not an argument for merely the high end of the guidelines?

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Maybe that wasn't Judge Pillers question, but that is my follow up to Judge Pillers question.

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I think that, first of all, most of the statements, the inflammatory statements and whatnot, and the statements about the higher criminal history category were not in response to the court's questions.

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I guess you could say they were in general in response to the court's notice that it was considering an upward departure of variance.

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But generally, in many of the cases... I want to give you the opportunity.

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What is an exact quote from the transcript that was not, could not be understood to be merely an argument in favor of the high end of the guidelines range?

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Current epidemic of gun violence in the community.

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Combination of firearms.

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So just stop with that sentence.

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Why is that not an argument for the high end of the guidelines range?

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Because that is something that applies to all defendants.

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It doesn't differentiate where this defendant should be in the guidelines or outside the guidelines.

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That is just general inflammatory information.

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It applies to all defendants.

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It seems like it's speaking within the guidelines.

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it has the appearance of being inflammatory under the circumstances when you have a dual responsibility to provide information as requested by the court but honor an agreement to uh defense counsel was arguing for a lower sentence than the high end of the guidelines range, right?

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That's correct.

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So, the government in order to defend its position,

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for a sentence at the high end of the guidelines range had to state some facts to suggest that this defendant's conduct in the context of the crime were worse than a sentence that would be worse than the conduct that would call for a sentence at the low end of the guidelines range.

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right?

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No doubt that the prosecutor would be allowed to provide certain information.

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By saying there's a drug epidemic and this is a particular neighborhood, why would that not be an argument for the high end of the guidelines?

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Well, I think if you isolate each

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statement, then you could try to justify it.

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But I think that these cases say you have to look at the totality of the advocacy and the totality of the advocacy, notwithstanding the occasional statement that

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You know, we made an agreement to cap our allocution.

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Many, many of the statements suggested that a higher guideline range was appropriate.

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That goes beyond the pale of suggesting that a sentence at the top of the range is what's appropriate.

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All of those comments that suggest a higher range is appropriate signals to the court that I'm not satisfied with this range and even a sense that the top isn't sufficient.

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It really should be above that.

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Those are improper statements and comments when the government agrees to cap its allocution.

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When, if this were to be vacated and remanded and the government were to once again

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argue in favor of the high end of the guideline range.

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What can they not say that they said before?

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I think they cannot say at the same time they're saying we're asking for 96 months, they cannot in the same sentence or breath or next sentence say, and you know, we calculated and believe that the 92 to 115 month is really the appropriate one.

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That's the reasonable one.

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We thought it at the time and we still believe that that better captures it.

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And your client agreed to that mistakenly, apparently.

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Well, mistakenly, but the government shouldn't be able to make a mistake in the plea agreement to have a defense counsel not catch it and then use it as a basis to say this is the more reasonable sentence.

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The applicable guidelines, the applicable guideline, their agreement was we're bound by the applicable guidelines.

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And to spend time talking about

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sentence ranges other than the applicable guideline violates the spirit and letter of the plea agreement.

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You argue in your opening brief that the guideline range already accounted for Mr. Honesty's possession of multiple drugs, including

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PCP, which the court identified as especially dangerous.

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And you point to the enhancement that Mr. Honesty received under 2K2.1B6.

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But the government points out that that enhancement is for committing a felony offense while armed.

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And the government asserts that doesn't capture the concerns that the district court articulated about the multiple drugs, including

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PCP, you don't respond to that in your reply.

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Do you have anything you would add about the extent to which that guideline encompasses already the dangerousness that the district court identified?

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I'm reasonably certain that that enhancement was because it involved another offense.

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In this case, it was a drug offense, a gun and drug, and a four-level enhancement.

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Additionally, if you look at the guideline calculation in the pre-sentence report,

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It shows that there are grouping rules and that all of the drugs were considered, they were applied, were given an offense level, and the total offense level and criminal history scores were—category were scored.

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And so in the course of that, they were all accounted for in the normal sentencing.

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I didn't, because I didn't think that that was a significant issue because it seems in the pre-sentence report, everything is counted.

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And therefore, I didn't view that as a significant issue.

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On remands, if this were to be remanded to the government, imagine the government says the following.

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We recommend 96 months.

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The defendant agreed in the plea agreement to a guidelines range up to 115 months.

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That shows that 96 months is not too high.

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Is that OK?

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I believe it's not OK.

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Do you think it's an argument in favor of 96 months?

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It's a way to show that 96 months is not too high?

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I believe that the fact that it's in the plea agreement, one, mistakenly prepared by the government, not called by the defense, but secondly, the fact that the range is reasonable

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for appellate purposes, not for sentencing argument at the district court level when the agreement is to cap the allocution at the top of the applicable guideline range.

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So to use that as a basis to get around the agreement would be improper, would be my position.

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I appreciate that.

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Thank you.

[00:18:04] Speaker 01:
Good morning, Your Honors.

[00:18:06] Speaker 01:
David Goodham for the United States.

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I'd like to address some of my opponent's arguments and certainly address any of the court's questions.

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But before I begin, I'd like to start with sort of a global point, if you will.

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In arguing for the top of the guideline range sentence below, the government submitted a 21-page sentencing memo and argued at the hearing for six transfixed pages.

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So for 27 total pages, advocacy for the government, in those 27 pages, the government asked for a top of the guideline sentence of 96 months, seven times.

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That's once every four pages.

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Now, I understand

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that an implicit breach inquiry does not involve a simple math equation.

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My point in emphasizing the repeated refrain of the government for top of the guideline sentence is this.

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There is a reason neither the defense counsel nor the trial court below said a peep about the possibility of an implicit breach here.

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And the reason is there was a consistent adherence to the plea agreement's promise on the part of the government.

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I will add that Pollard emphasizes that when you're talking about implicit breach, you're talking about nuance.

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You can't just point, I'm sorry.

[00:19:26] Speaker 01:
I'm sorry, Your Honor.

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When you're talking about implicit breach, you're talking about nuance.

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You're not talking about an express provision of the agreement that is violated.

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My opponent agrees we are in the category of implicit breach.

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And what Pollard says is when you're talking about such nuances, we're going to put a significant amount of weight on the contemporaneous reactions of the defense counsel and the trial court.

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Here, we have a vacuum with respect to their reactions to the government's arguments.

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So the defense counsel seems to have dropped the ball at the sentencing allocation, but it jumps out.

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And this is a page, I guess, 19 of your sentencing memorandum or your colleague's sentencing memorandum at A135.

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In the memorandum, defendant honesty's eight criminal history points do not capture totality of his criminal behavior.

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To me, that is an invitation.

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The guidelines range as calculated and represented in this memorandum and doesn't capture what this person did.

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That seems like, I mean, implicit yes, because it doesn't say, therefore vary.

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But that is really effectively saying, guideline range doesn't capture, go higher.

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And the district judge responds promptly by tracking that sentiment and asking for further submissions.

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That seems like pretty strong evidence of implicit breach.

[00:21:16] Speaker 01:
I disagree with Your Honor's reading of the record with respect to the government sentencing memo.

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And I want to make a couple of points in response.

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Excuse me.

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First, when Pollard counsels, and I think this is critical to this court's analysis, and this is at page 1025 of the Pollard decision, Pollard says, it's true the government pressed its case against Pollard at sentencing with considerable force, and in particular,

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line burger, Secretary of Defense statement made references to treason.

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But what Pollard said is that statement was just as consistent with requests for long prison sentence that would be short of a life term as it was consistent with a lengthy term.

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And that's what's going on here.

[00:22:04] Speaker 04:
I can see that with respect to all of the sort of qualitative characterizations of the conduct of the defendant.

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He did this, he did that.

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It's really the sort of technical, to my ear, door opening character of this.

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The criminal history points do not capture

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the criminal behavior, which is a way of saying that is tracking what the guidelines identify as a ground for going up above the guidelines.

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So it's basically saying, here's a ground that this judge knows is a ground for upward variance, which is why he reads this, turns around, asks for briefing on that.

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And yes, at the hearing, government counsel

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acknowledges the obligation to stay within the guideline range, but has a statement that, I mean, if, you know, yeah, I have to stick with this, but, you know, and then it's like, in contrast to that obligation, I'm gonna tell you why this case is,

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why this person is so dangerous.

[00:23:27] Speaker 04:
I mean, surely it can't be in compliance with a plea agreement commitment on the government's part to not ask for anything above the top of the correct guidelines range.

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It can't be consistent with that for the government to say, well,

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We're bound to advocate within the guideline range.

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But this is a really serious case.

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But the range doesn't take account of this, this, this.

[00:24:01] Speaker 04:
We're sticking with the guideline range, of course, Your Honor.

[00:24:04] Speaker 04:
But this case is far different from any of the guideline range cases we've seen before.

[00:24:10] Speaker 04:
I mean, at some point,

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The drumbeat of, you know, we're asking for the top, we're asking for the top, it doesn't correct for that.

[00:24:21] Speaker 01:
If I may respond to a couple, first I want to talk about the sentencing memo, and I want to put your honor's focus on that language in the sentencing memo and context.

[00:24:29] Speaker 01:
And then I will transition to the sentencing hearing, because I think context is very important here.

[00:24:35] Speaker 01:
And as my opponent rightly points out, we're talking about totality of circumstances approach to this.

[00:24:40] Speaker 01:
You have to look at this mosaic.

[00:24:43] Speaker 01:
You have to look at the constellation of facts.

[00:24:45] Speaker 01:
Let's start with the sentencing memorandum.

[00:24:47] Speaker 01:
First, the government.

[00:24:51] Speaker 01:
The government's phraseology, I think, is critical here.

[00:24:53] Speaker 01:
The government at JA 135 says, the criminal history does not capture the totality of his criminal behavior.

[00:25:01] Speaker 01:
No citation to a departure provision, no reference to a variance there.

[00:25:05] Speaker 01:
And that, I would suggest, should be contrasted with the actual departure language, which is 4A 1.3A1, which says, substantially under-represents a series of defendants' criminal history.

[00:25:18] Speaker 01:
So a small point, but I think it's relevant in the mosaic.

[00:25:22] Speaker 01:
The government understood that this was a permissible argument for a top of the guidelines sentence.

[00:25:28] Speaker 01:
And again, let's put this in context.

[00:25:31] Speaker 01:
The defendant was arguing for a bottom end of the guidelines range.

[00:25:35] Speaker 01:
So that's my first point with respect to the memorandum.

[00:25:39] Speaker 01:
Number one, and number two, Judge McFadden is obviously an experienced judge.

[00:25:45] Speaker 01:
He understands the guidelines.

[00:25:47] Speaker 01:
He understands his authority within the scope of the guidelines.

[00:25:52] Speaker 01:
So I think in the context of plain error, to assume that this was a triggering factor for the judge is probably not

[00:26:00] Speaker 01:
appropriate, given that the defendant has to show a plain, clear, or obvious breach.

[00:26:05] Speaker 04:
What about in the end of that very same paragraph in the sentencing memorandum?

[00:26:10] Speaker 04:
Starts defendant honesty's eight criminal history points does not capture totality of his criminal behavior.

[00:26:16] Speaker 04:
It ends.

[00:26:18] Speaker 04:
uh, incorporated those points into defendant's honesty's criminal history score would result a guideline range of 92 to 115 months, which was the guideline range contemplated in the plea agreement.

[00:26:34] Speaker 04:
Sure.

[00:26:34] Speaker 04:
It doesn't say erroneously contemplated or contemplated in the plea agreement, which to be sure was

[00:26:42] Speaker 04:
you know, contained error and has since been corrected and which we're not basing our argument on.

[00:26:49] Speaker 04:
I mean, this is really hard to square.

[00:26:53] Speaker 04:
And you're doing a good job.

[00:26:56] Speaker 04:
I mean, I do think that your point about substantially under represents versus does not capture, I mean,

[00:27:02] Speaker 01:
A further point, again, context is important here.

[00:27:06] Speaker 01:
It's actually the government that gets the parties to the correct criminal history point score.

[00:27:11] Speaker 04:
I noticed that.

[00:27:12] Speaker 01:
And the context here for the government statement that you've quoted comes on the back end of roughly five or six pages of the government laboriously and scrupulously going through the criminal history points

[00:27:27] Speaker 01:
and getting the parties and the PSR rider to the correct score, which was eight points, as opposed to when it started at 10 points, I think, or 11 points.

[00:27:37] Speaker 01:
So when the government makes that

[00:27:41] Speaker 01:
declaration that Your Honor has quoted, it's in the context of the laborious sort of detail-oriented nature of, hey, this was a complicated criminal history score.

[00:27:54] Speaker 01:
And the party screwed up, actually, at the beginning.

[00:27:57] Speaker 01:
We're now on the back end.

[00:27:58] Speaker 01:
And I think, from the government's perspective, it's fair for the government to point out is, well, on the one hand, he does get the benefit of the lower

[00:28:06] Speaker 01:
criminal history score that we've now produced for you and that everybody agrees ultimately is correct.

[00:28:12] Speaker 01:
But also, on the other hand, we think there are reasons why that criminal history score doesn't accurately capture the totality of this criminal behavior.

[00:28:22] Speaker 01:
If I can move to the sentencing hearing, if I'm, I'm sorry, go ahead, Your Honor.

[00:28:26] Speaker 04:
I just think if you're really sticking to the obligation to stay within the balance, you would not say this range doesn't accurately capture.

[00:28:34] Speaker 04:
You would say, and within that range, which is corrected, who really belongs at the top?

[00:28:41] Speaker 04:
This is not your average offender of this type with this history.

[00:28:46] Speaker 04:
This is somebody who is at the most serious end of that.

[00:28:50] Speaker 04:
I mean, that is not the way

[00:28:52] Speaker 04:
this was presented in writing or at the hearing.

[00:28:56] Speaker 01:
So go ahead and I do want to actually close loop on the sentencing memo.

[00:29:04] Speaker 01:
The quotation from that your honor is focused on is that excuse me.

[00:29:10] Speaker 01:
JA136, 135, excuse me.

[00:29:15] Speaker 01:
Well, on the next page, 136, for that reason, and given the above factors, the government believes that 96 months at the top of the range is necessary and mandated.

[00:29:25] Speaker 01:
And then on page 137, defendant, his honesty should be sentenced to a term of prison, so 96 months followed by three years as supervised release.

[00:29:33] Speaker 04:
Of course.

[00:29:34] Speaker 04:
No, I mean, again and again, the government formally asked for that.

[00:29:38] Speaker 04:
That's why I'm saying this is an implicit

[00:29:40] Speaker 04:
It's a claim of implicit recommendation urging to be outside the range.

[00:29:47] Speaker 04:
Sure.

[00:29:48] Speaker 04:
You could say as many times as you want, and the district judge understands that you're not going to ask for a different number.

[00:29:55] Speaker 04:
I mean, that would be an explicit breach, right?

[00:29:58] Speaker 04:
But to have all this laying out of the erroneous, much higher, and then

[00:30:06] Speaker 04:
You understand my point.

[00:30:08] Speaker 04:
And I see you.

[00:30:10] Speaker 04:
I appreciate that the request is, in fact, within the range.

[00:30:15] Speaker 01:
So you were ahead.

[00:30:16] Speaker 01:
I won't believe that.

[00:30:18] Speaker 01:
But I do think, again, when we're in the context of plain error and we're talking about the contemporaneous reactions of both the trial court and the district court, we should assign as

[00:30:30] Speaker 01:
this court has said and Pollard great weight to the fact that this was not something that

[00:30:39] Speaker 01:
laws, defense counsel to Blanche.

[00:30:42] Speaker 01:
I'll leave it at that.

[00:30:43] Speaker 01:
I want to talk about the sentencing transcript.

[00:30:47] Speaker 01:
Before I do, I do want to remind the court, though, that also, again, when we're talking about a totality of circumstances approach here, we can zero in on particular phrases.

[00:30:57] Speaker 01:
We can zero in on particular sentences.

[00:31:00] Speaker 01:
But when you're talking about the mosaic, you have to ask the question,

[00:31:04] Speaker 01:
Did the government adhere to its promises?

[00:31:07] Speaker 01:
And we think that totality here demonstrates that.

[00:31:10] Speaker 01:
But let's focus on the sentencing hearing transcript.

[00:31:16] Speaker 01:
Obviously, we have a different reading of the transcript that's just been posited by Your Honor.

[00:31:21] Speaker 01:
Our reading of the transcript is this.

[00:31:25] Speaker 01:
At JA 155, the court, quote, invited argument on its minute order, which made reference to the possibility of a variance or not.

[00:31:35] Speaker 01:
And I think the critical part of the government's response to that invited argument is at JA 160.

[00:31:43] Speaker 01:
What the government does there is assiduously stamp down the notion that it can argue about this.

[00:31:52] Speaker 01:
So at JA 160, the first thing the USA does is remind the court, quote, we did cap our allocution at the top of the applicable range.

[00:32:01] Speaker 01:
Then the AUSA goes on and declares, I can't stand here and advocate for an upward departure or an upward variance.

[00:32:10] Speaker 01:
So boom, right off the bat, following the district court's invite argument, what we have here is the AUSA saying, look, I can't argue this.

[00:32:19] Speaker 01:
I capped my allocution.

[00:32:21] Speaker 01:
We have promises to keep.

[00:32:23] Speaker 01:
Then, critically, what I think

[00:32:28] Speaker 01:
the transcript betrays, is the government then simply repeats its sentencing memorandum argument.

[00:32:34] Speaker 01:
Now, if this court disagrees with my take on the sentencing memorandum argument, which is that's a perfectly permissible argument to make both for a top of the guidelines range and perhaps a variance, if it's doing double duty,

[00:32:51] Speaker 01:
then it's permissible.

[00:32:53] Speaker 01:
And what the AUSA does at JA16161 is the AUSA actually quotes from its sentencing memorandum.

[00:33:03] Speaker 01:
And this is a quote.

[00:33:03] Speaker 01:
We did mention this in our sentencing memo, where we stated that Mr. James Odyssey's criminal history points do not really capture the totality of his criminal history behavior.

[00:33:12] Speaker 01:
The government is simply repeating what, from the government's perspective, is already a permissible argument in support

[00:33:18] Speaker 04:
Right and if you don't think it's a permissible argument then I mean I think it's really the opening the door in the memorandum because once then the district judge responds I mean this is this is Mr. Honesty's argument once the district judge responds to the sentencing memorandum saying the criminal history points don't accurately reflect this offender's

[00:33:39] Speaker 04:
criminal history, then the judge asks for the parties to address the upward variance on this basis.

[00:33:49] Speaker 04:
And they do.

[00:33:49] Speaker 04:
And then once the district judge is asking, it's harder to see that as clear error.

[00:33:55] Speaker 04:
The district judge is saying, why shouldn't I marry?

[00:33:57] Speaker 04:
Why shouldn't I marry?

[00:33:58] Speaker 04:
And the prosecutor is saying, well, he is a pretty serious offender.

[00:34:01] Speaker 04:
He does have a lot.

[00:34:03] Speaker 04:
I wonder about that.

[00:34:04] Speaker 04:
It doesn't seem like there was an objection and there isn't an objection on appeal to the whole narration of the error in the original plea.

[00:34:16] Speaker 04:
It just feels like once you put that in front of the court, that's what he then gravitates back to.

[00:34:25] Speaker 01:
Again, when we're talking about feeling and perception, again, I think that perception was not one taken away by defense counsel, nor was it one taken away by the district court.

[00:34:37] Speaker 01:
The district court, of course, understood the plea agreement.

[00:34:40] Speaker 01:
The AUSA reminded the district court of the plea agreement requirements.

[00:34:44] Speaker 01:
The district court

[00:34:46] Speaker 01:
has a duty just as much as defense counsel to raise a possibility of a breach if the district court perceived it.

[00:34:52] Speaker 01:
Again, complete silence.

[00:34:56] Speaker 01:
I just want to finish my sentencing hearing point, which is we have the AUSA closing that loop.

[00:35:04] Speaker 01:
On the one hand, the court has said,

[00:35:08] Speaker 01:
invited argument, the USA says I'm not arguing, I can't argue, reminds the court about the allocution cap, simply repeats a prior permissible argument from the sentencing memo, and then returns critically, returns to the, this is at J161, again, the

[00:35:32] Speaker 01:
The AUSA says I can't advocate for a variance or departure under the plea agreement, JA161.

[00:35:37] Speaker 01:
And the entire response that the AUSA offers is a request for a 96-month top of the guidelines range, 161.

[00:35:46] Speaker 01:
Honestly, if I might, we haven't really talked much about

[00:35:53] Speaker 01:
These are all fact bound cases and there's a lot of variation within cases.

[00:35:59] Speaker 01:
I think a good barometer or a good template for comparison here is the Thomas case from this court.

[00:36:09] Speaker 01:
In Thomas, the defendant pled guilty to interstate communication with intent to extort.

[00:36:13] Speaker 01:
The parties agreed not to seek a different US guideline calculation and thus agreed not to include an enhancement for defendants demonstrated ability to carry out those threats.

[00:36:25] Speaker 01:
At the sentencing hearing, however, the district court brought it up, the enhancement on its own initiative, and asked the prosecutor about the application of this demonstrated ability to carry out threats enhancement.

[00:36:42] Speaker 01:
And the prosecutor, again, with some sort of, when you're speaking extemporaneously, you're not going to be choosing your words particularly carefully.

[00:36:51] Speaker 01:
But the prosecutor said, well, look,

[00:36:53] Speaker 01:
He was in a quote unfortunate and somewhat difficult position and stated it was our interpretation and understanding the facts that the defense did not involve the defense ability to carry out this threat.

[00:37:04] Speaker 01:
That's a 999 F third at 728.

[00:37:07] Speaker 01:
When the judge pushed back and asked whether the actual

[00:37:10] Speaker 01:
demonstrated ability to carry out the threat was irrelevant as a legal matter, the prosecutor responded with sort of very heavily laden double negative.

[00:37:18] Speaker 01:
The prosecutor said, we are not arguing that legally that it doesn't apply.

[00:37:21] Speaker 01:
We are not asking that it apply in this case.

[00:37:23] Speaker 01:
And that's at 729.

[00:37:25] Speaker 01:
The defendant argued the prosecutor had essentially effectively agree the court should apply an enhancement.

[00:37:34] Speaker 01:
This court rejected it.

[00:37:36] Speaker 01:
said not only not clean air, but nowhere at all.

[00:37:39] Speaker 01:
And the court said, even if we understood the double negative as a feeble admission, the enhancement might apply.

[00:37:44] Speaker 01:
We would still hold the prosecutor not to breach the agreement.

[00:37:47] Speaker 01:
That's at page 729.

[00:37:48] Speaker 01:
The government did not at any point seek the enhancement.

[00:37:52] Speaker 01:
The district court raised it without prompting.

[00:37:55] Speaker 01:
And the district court applied it over the government's objection.

[00:37:58] Speaker 01:
I would suggest all of those facts apply here.

[00:38:02] Speaker 01:
And that Thomas is a very good template for this court's analysis.

[00:38:06] Speaker 03:
By chance, do you know what the pre-trial sentence report recommended?

[00:38:13] Speaker 01:
I do.

[00:38:14] Speaker 01:
At the top of the guidelines range, 96 months.

[00:38:19] Speaker 01:
And so consistent with the government's refrain for a top of the guidelines sentence.

[00:38:33] Speaker 01:
I want to make sure I answer any of the court's questions.

[00:38:35] Speaker 01:
And I will address anything.

[00:38:38] Speaker 01:
But I do think there are two critical features of this case.

[00:38:44] Speaker 01:
One, this is plain error.

[00:38:46] Speaker 01:
And we don't think there's a breach here.

[00:38:51] Speaker 01:
We think the mosaic, the constellation of facts, demonstrates the government adhered to its bargain.

[00:38:57] Speaker 01:
And there's a reason there's silence from defense counsel.

[00:39:01] Speaker 01:
Number two, it certainly can't be said that this was plain, clear, or obvious error.

[00:39:08] Speaker 01:
We are at most talking about phrases slash sentences that might have hidden meaning.

[00:39:14] Speaker 01:
And when we're in the context of debating

[00:39:20] Speaker 01:
the nuance of a phrase or a sentence when a prosecutor is doing his or her best to answer a court's question on the one hand and adhere to promises on the other hand, when we're in the context of having a reasonable debate about that, then I think we're outside the context of playing clear obvious error.

[00:39:43] Speaker 01:
You know, from the government's perspective, the government did not implicitly breach the agreement here.

[00:39:52] Speaker 01:
It stuck to the letter of the agreement.

[00:39:54] Speaker 01:
There was a consistent refrain.

[00:39:56] Speaker 01:
It had a job to do with respect to a top of the guidelines argument.

[00:40:00] Speaker 02:
Can you talk a little bit about prejudice?

[00:40:03] Speaker 02:
If the court was to find that the government breached, it would still have to find prejudice, right?

[00:40:09] Speaker 01:
Yes.

[00:40:10] Speaker 01:
And that's, of course, different.

[00:40:12] Speaker 01:
If we're in preserved context, then all bets are off.

[00:40:16] Speaker 01:
You automatically get a remand.

[00:40:18] Speaker 01:
But when you're in plain error context, it's the defendant's burden to show not only just a substantial prejudice attendant the error, number one, but then a fundamental miscarriage in Tongue Four of Bolano.

[00:40:32] Speaker 01:
And here,

[00:40:35] Speaker 01:
There were many facts, with the court's permission, there are many facts in addition to the criminal history of the defendant that the court relied on.

[00:40:47] Speaker 02:
Would it include brandishing the weapon and not merely possessing it?

[00:40:50] Speaker 02:
Would it include abandoning the gun feet from an elementary school?

[00:40:53] Speaker 02:
Would it include that he possessed three different dangerous drugs, in particular, PH, PCP, which poses an extreme danger to the residents of DC?

[00:41:02] Speaker 01:
Yes, absolutely.

[00:41:03] Speaker 01:
And that's the transcript page.

[00:41:04] Speaker 01:
This is a 13-page explanation from the court.

[00:41:07] Speaker 01:
And the first four pages focus solely on what the court calls the quote, incredibly serious offense.

[00:41:17] Speaker 01:
Many of the facts that Your Honor just recited support that.

[00:41:20] Speaker 03:
Did the pretrial sentence report identify those considerations?

[00:41:27] Speaker 01:
I believe that's accurate, Your Honor.

[00:41:30] Speaker 01:
There's no doubt the court focused on the defendants what the court called the long and disturbing criminal record.

[00:41:36] Speaker 01:
That's at page 36 of the transcript.

[00:41:39] Speaker 01:
But I think most saliently what the court focused on even in the context of the criminal history

[00:41:46] Speaker 01:
was a similarity between the defendant's consistent convictions.

[00:41:50] Speaker 01:
And so at page 36, the court says, I have five convictions for having loaded weapons, three convictions for possession with intent to distribute.

[00:41:58] Speaker 01:
And I'm struck not only by the number of offenses, but the severity, and that most of them involve weapons.

[00:42:05] Speaker 01:
And that's at page 37.

[00:42:07] Speaker 01:
But then I think another feature of the court sentencing that has nothing to do with criminal history is the sort of brazen inability of the defendant to exercise restraint, if you will, when on supervised release.

[00:42:21] Speaker 01:
And this is sort of the critical portion of the court sentencing.

[00:42:26] Speaker 01:
37 of the transcripts, the court sort of aghast as less than 10 months after being released on his CPWL, he engages in a carjacking.

[00:42:37] Speaker 01:
Nine months after his carjacking release, he has the Maryland armed trafficking case.

[00:42:41] Speaker 01:
And six months after that, he's arrested in the present DC case.

[00:42:45] Speaker 01:
And as the court says, that's quite a crime spree for someone who's been in and out of prison for a long time.

[00:42:51] Speaker 01:
And that's a page 37 of the transcript.

[00:42:54] Speaker 01:
You know, if we're talking about the sort of minutiae that the government made with respect to the criminal history points, not adequately demonstrate the defendant's criminal history, I think what we have here is a district court judge who went way beyond just focusing on that feature of the case.

[00:43:18] Speaker 01:
I think there's

[00:43:18] Speaker 02:
There's more.

[00:43:20] Speaker 02:
The district judge talked about, I take issue with the tone of parts of your memorandum, which seems to variously blame your mother, your father, the Bureau of Prisons, and the probation office.

[00:43:30] Speaker 02:
The district board also talked about the defendant's behavior during the sentencing hearing itself.

[00:43:35] Speaker 02:
And sometimes the defendant was interrupting the district, the district court and not your demeanor throughout this case is not at all been consistent with remorse.

[00:43:49] Speaker 02:
You actually had to be removed last hearing because your outburst.

[00:43:53] Speaker 02:
There's a lot there.

[00:43:54] Speaker 02:
This would all go to prejudice, right?

[00:43:58] Speaker 01:
Yes, absolutely.

[00:43:59] Speaker 01:
Again, it's a defendant's burden when we're in that context.

[00:44:02] Speaker 01:
He hasn't disagreed.

[00:44:03] Speaker 01:
We're in plain error land.

[00:44:04] Speaker 02:
Do you think that the district court adequately explained why the sentence wasn't higher?

[00:44:12] Speaker 01:
Why it wasn't beyond the 115?

[00:44:19] Speaker 01:
Yeah.

[00:44:20] Speaker 01:
I think the court had a very reasonable and rational explanation for why it was comfortable with 115.

[00:44:28] Speaker 01:
And I think, again, the court focused on the similarity between the incident offenses and the defendant's past convictions.

[00:44:34] Speaker 01:
Number one, the court also focused on the fact the defendant had committed many of the events soon after being released.

[00:44:41] Speaker 02:
And then all those speak to why it should be at least 115.

[00:44:46] Speaker 02:
I believe so.

[00:44:49] Speaker 02:
I'm not sure I see much of an explanation for why it shouldn't be higher than 115.

[00:44:54] Speaker 01:
Well, I mean, I think from Judge McFadden's perspective, he was varying upward.

[00:44:59] Speaker 01:
The explanation had to be, OK, I'm outside the guideline range of 72 to 96 months.

[00:45:04] Speaker 01:
I'm going up.

[00:45:05] Speaker 01:
I need an explanation for that.

[00:45:07] Speaker 01:
And I think that the record amply.

[00:45:10] Speaker 02:
It's rare, but sometimes the US Attorney's Office will appeal a sentence as too low, correct?

[00:45:16] Speaker 01:
It does happen for sure, but it's certainly a rarity in my experience.

[00:45:23] Speaker 01:
And I think the bottom line here is there's no debate really from the government's perspective that there was an adequate explanation here.

[00:45:32] Speaker 01:
I've run well over my time.

[00:45:38] Speaker 01:
I would ask that the court affirm the judgment and conviction below.

[00:45:43] Speaker 01:
Thank you.

[00:45:44] Speaker 04:
Thank you very much.

[00:45:48] Speaker 04:
And does Mr. Katzoff have for bottle?

[00:45:53] Speaker 04:
All right, we asked you many questions and took you over your original time, but I will try to keep it short.

[00:46:04] Speaker 03:
I have a question.

[00:46:07] Speaker 03:
Where did you seek re-sentencing before a different district court judge?

[00:46:13] Speaker 00:
I did not specifically reference that in the briefs.

[00:46:20] Speaker 00:
All that was in the briefs was that we felt that a remand or a re-sentencing.

[00:46:26] Speaker 00:
Is that correct?

[00:46:27] Speaker 00:
That's correct.

[00:46:28] Speaker 00:
Thank you.

[00:46:31] Speaker 00:
I wanted to just, with reference to government councils, focus on the reaction of judge and defense counsel.

[00:46:42] Speaker 00:
And...

[00:46:46] Speaker 00:
emphasis on putting things in context.

[00:46:49] Speaker 00:
First of all, I think the record's clear, but the defense counsel, I think, was a substitute counsel for a case that had been going for a long time for, I want to say two months, asked for about 60 or 90 days, and barely got 50, I think, because he had a murder trial in PG County in the interim when he entered his appearance the end of July.

[00:47:12] Speaker 00:
And so,

[00:47:15] Speaker 00:
to try to put a lot of weight on defense counsels,

[00:47:23] Speaker 04:
You don't make any ineffective assistance argument?

[00:47:26] Speaker 00:
I didn't think it rose to the level, and so there is no ineffective assistance argument with regard to that.

[00:47:33] Speaker 00:
But in context, there's a reason that the cases say that these issues are to be reviewed at the time of the appeal, not at the time of the reaction of the judge or not the reaction of the judge.

[00:47:50] Speaker 00:
As I argued earlier, this started with the government's sentencing memorandum, then the judge's minute order, then the judge adopting most of the government's arguments.

[00:48:06] Speaker 04:
I'm not sure I entirely followed what you just said about these issues are to be reviewed as of the vantage of the appeal, not at the time.

[00:48:12] Speaker 04:
I mean, we're on plain error review because there is an obligation to raise the objection at the time.

[00:48:18] Speaker 00:
That's correct.

[00:48:19] Speaker 00:
And so it puts it into the plain error category, but it's a little bit strong to make a decision.

[00:48:29] Speaker 00:
at the appellate level based on whether the district court reacted or didn't react.

[00:48:34] Speaker 00:
In this case, the district court came on board with the government's recommendation and followed suit right along the lines the government had laid out.

[00:48:47] Speaker 00:
So it really doesn't say much in the context that the judge didn't react at the time.

[00:48:53] Speaker 00:
And that's a reason to somehow find it doesn't meet plain air standard.

[00:48:58] Speaker 02:
Do you know if, I'm not sure, should we presume in a typical appeal that the defendant's attorney read the government's sentencing memorandum?

[00:49:17] Speaker 00:
I would think in the normal course, I don't know if there's a basis to presume that or not.

[00:49:25] Speaker 00:
Maybe a rebuttable presumption, but.

[00:49:27] Speaker 00:
I have to say I've never been asked that question and I don't know the answer.

[00:49:32] Speaker 02:
I bet you must have never not read a government sentencing memorandum.

[00:49:36] Speaker 00:
Absolutely.

[00:49:37] Speaker 00:
So it's a little alien to me to consider

[00:49:41] Speaker 00:
And I'm not sure whether the law is addressed or presumed.

[00:49:44] Speaker 02:
Maybe we shouldn't.

[00:49:46] Speaker 02:
But it is possible that that should be sort of a rebuttable resumption about a Defenders' Council.

[00:49:51] Speaker 02:
And also maybe that there should be a sort of, I don't know if it's technically a presumption of regularity, but a sort of

[00:49:58] Speaker 02:
rebuttable presumption that the government is being faithful to its promises in a plea agreement, you know, absent sort of sufficient evidence to rebut that presumption.

[00:50:13] Speaker 00:
Well, it seems that the language implicitly went very far in this case.

[00:50:19] Speaker 02:
Even if there were presumptions, you think there's enough evidence here to rebut it.

[00:50:23] Speaker 00:
I get that.

[00:50:25] Speaker 00:
The Thomas comparison, I would just submit, very distinguishable.

[00:50:30] Speaker 00:
Those issues weren't first raised by defense.

[00:50:33] Speaker 00:
They were raised by a very tough district judge.

[00:50:37] Speaker 00:
The prosecutor was pushed and held pretty.

[00:50:41] Speaker 00:
Fair district judge.

[00:50:41] Speaker 00:
Yes, fair.

[00:50:43] Speaker 00:
I don't I don't mean that word to be but one who wants to get to the point and uh and that prosecutor held firm far firmer than what was gratuitously uh without being pushed uh provided in this case.

[00:50:59] Speaker 00:
So, my point is, I think it's very distinguishable.

[00:51:03] Speaker 00:
Uh I'm playing

[00:51:05] Speaker 00:
You know, it seems from the language that the implicit breach is clear.

[00:51:10] Speaker 00:
It seems that it affects substantial rights under the Kinggore standard of having to show a reasonable likelihood that it affected the sentence, even with all the other factors, some of which we've alleged were improperly considered by the judge.

[00:51:26] Speaker 00:
And I'll rely on the brief.

[00:51:28] Speaker 00:
for those arguments that Mr. Honesty makes that standard.

[00:51:34] Speaker 00:
And obviously, if he makes those prongs, then it affects the fairness, integrity, and public reputation when a sentence is affected by a breach by the government and a request for a higher sentence.

[00:51:48] Speaker 00:
So we would ask for it.

[00:51:49] Speaker 00:
I would ask the court to do the three-factor analysis, even though I didn't specifically address, and I only asked for remand and resentencing.

[00:51:58] Speaker 04:
So, um, are you today asking for reassignment?

[00:52:02] Speaker 04:
I am.

[00:52:03] Speaker 04:
So, Mr, if you were, oh, I'm sorry.

[00:52:05] Speaker 03:
So I can understand the basis.

[00:52:08] Speaker 03:
Well, um, clearly didn't raise it.

[00:52:11] Speaker 03:
So the government hasn't had a chance to respond.

[00:52:14] Speaker 00:
That's correct, except the government's only had an opportunity today.

[00:52:19] Speaker 00:
My position is it's relatively straightforward, the three factors.

[00:52:26] Speaker 03:
Normally, we would have to find the judge did something wrong.

[00:52:34] Speaker 00:
Well, not necessarily.

[00:52:35] Speaker 00:
We just have to find that it would be hard for the judge to not be affected by the decisions that were made asking for your best case.

[00:52:47] Speaker 03:
I've been on this court long enough to know how rare that is.

[00:52:52] Speaker 00:
Well, that is true.

[00:52:55] Speaker 00:
It is not often, but I would say that it's impossible to unring the bell, as we say a lot of times with juries.

[00:53:02] Speaker 00:
And in this case, I would say with the judge who's been through the sentencing process and has been affected by the breach that it would have been.

[00:53:13] Speaker 00:
Well, we don't know, but I would submit that it's sufficiently an issue that it would be the appropriate.

[00:53:20] Speaker 00:
I mean, if we don't run this and that mean that you lose under the plane air review.

[00:53:27] Speaker 00:
I don't think that we necessarily lose if we're at a point of determining the remedy and whether reassignment is part of it.

[00:53:36] Speaker 02:
But if we don't know whether the alleged breach prejudiced the defendant, it seems like you haven't met the plein air standard.

[00:53:44] Speaker 00:
Well, our position is that it has affected them, it has affected the sentencing, it has affected the judge.

[00:53:51] Speaker 00:
just, you know, I'm I'm saying that we can't be in the minds of the judge.

[00:53:56] Speaker 00:
So, these are conclusions that are drawn based on the the the facts that are presented on the record and I'm not trying to answer to Judge Rogers questions to say that I know Judge McFadden is not fair.

[00:54:09] Speaker 00:
It couldn't be fair.

[00:54:10] Speaker 00:
I'm saying that it's inappropriate to put Judge McFadden in that position.

[00:54:13] Speaker 00:
We don't blame the judge.

[00:54:15] Speaker 03:
So, you're clear.

[00:54:17] Speaker 03:
Is the judge had a

[00:54:22] Speaker 03:
Correct.

[00:54:22] Speaker 03:
That spelled out the criminal history.

[00:54:27] Speaker 03:
Correct.

[00:54:28] Speaker 03:
The judge knew all that.

[00:54:32] Speaker 03:
If the prosecutor hadn't said anything, the judge still knew it all and basically was saying he disagreed with the prosecutors.

[00:54:43] Speaker 00:
Well, I wouldn't agree that the judge still wouldn't be influenced by the rest of the record that was presented for sentencing besides the pre-sentence report.

[00:54:52] Speaker 00:
And the judge even said the pre-sentence report and the probation officer's recommendation is just based on these facts and I have to review more.

[00:55:02] Speaker 00:
And so part of that was the representations by the government and the conclusions drawn.

[00:55:09] Speaker 04:
Thank you.

[00:55:10] Speaker 04:
Mr. Katzoff, you were appointed by the court to represent the appellant in this case, and the court thanks you for your assistance.

[00:55:20] Speaker 04:
The case is submitted.