[00:00:00] Speaker 02:
Case number 25-3024, United States of America versus Josue Eduardo Rodas, appellant.

[00:00:07] Speaker 00:
Mr. Farley for the appellant, Mr. Hansford for the appellee.

[00:00:13] Speaker 00:
Morning, Mr. Farley, whenever you're ready.

[00:00:17] Speaker 04:
Morning, and may it please the court, Matthew Farley for Mr. Josue Rodas.

[00:00:21] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:00:23] Speaker 04:
Mr. Rodas finished his one day term of supervision on July 13th, 2022.

[00:00:28] Speaker 04:
After that, the district court had no jurisdiction to supervise Mr. Rodas or bring him into court for revocation proceedings.

[00:00:34] Speaker 04:
The district court's conclusion otherwise was wrong.

[00:00:37] Speaker 04:
At Mr. Rodas' sentencing hearing, when the court began to impose a perfectly lawful sentence under the DC code, it was the government that insisted that the court must impose a period of probation.

[00:00:46] Speaker 04:
It was the government that suggested that the period of probation should be one day.

[00:00:49] Speaker 04:
And it was the government that suggested suspending the period of probation.

[00:00:53] Speaker 04:
Despite these invited errors, the government never filed the Rule 35 motion or an appeal.

[00:00:58] Speaker 04:
Only now when Mr. Rodas seeks to have the court enforce the lawful terms of his judgment does the court government choose to act, seeking remedies that are no longer available.

[00:01:08] Speaker 04:
Mr. Rodas asks the district court and now asks this court to lawfully execute his criminal judgment, and doing so can only have one result.

[00:01:14] Speaker 04:
He is no longer subject to the district court's supervision.

[00:01:17] Speaker 04:
This court should reverse and remand to the district court with instructions to order Mr. Rodas discharged from supervision.

[00:01:23] Speaker 00:
Mr. Farley, so I'm concerned about our appellate jurisdiction here in this case, because the district court's order is not final, or at least arguably not final, and I'm not sure how this fits

[00:01:44] Speaker 00:
into the collateral order doctrine.

[00:01:48] Speaker 00:
Why does Mr. Rhodes not have to wait until these revocation proceedings conclude?

[00:01:56] Speaker 04:
So I think there's two reasons that Mr. Redis doesn't have to wait until revocation proceedings conclude.

[00:02:03] Speaker 04:
The first being that I would maintain that this order is final.

[00:02:07] Speaker 04:
This is a motion to terminate supervision because of the lack of the district court supervision that could have been brought before a revocation petition.

[00:02:16] Speaker 04:
It could have been brought the day it was filed, it could have been brought after as it was.

[00:02:20] Speaker 04:
The district court's order that it had jurisdiction to supervise Mr. Rodas is a final order.

[00:02:26] Speaker 04:
The closest statutory analog is the 3583e motion, which are reviewable by this court as final orders.

[00:02:34] Speaker 01:
But they're very different.

[00:02:36] Speaker 01:
This is Judge Randolph.

[00:02:37] Speaker 01:
They're very different because once the district court denies a motion to terminate supervision, there's nothing more for the district court to do.

[00:02:50] Speaker 01:
But that's not true here.

[00:02:51] Speaker 01:
I mean, the result of the denial is that there'll be a trial about whether he in fact violated the conditions.

[00:03:02] Speaker 01:
So the cases that you cite are very, very different.

[00:03:06] Speaker 01:
in terms of finality.

[00:03:09] Speaker 04:
Yes, they are different.

[00:03:11] Speaker 04:
This is a unique position of first impression for this court.

[00:03:15] Speaker 04:
I would say that the result of the denial of Mr. Rodis' motion is actually, is not what will be the revocation hearing.

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That revocation hearing is a result of probation's petition.

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The result of Mr. Rodis' motion being denied is just that he's continued to be subject to supervision in the court's jurisdiction.

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But in the alternative, I do think Mr. Rhodes's motion and the court's order satisfy the collateral order doctrine.

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Under this court's decision in Trebelci, we look to the logic of Abney, and I think Abney is on at least three legs, if not four here.

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Abney, which is the Supreme Court's decision,

[00:03:59] Speaker 04:
giving interlocutory jurisdiction over double jeopardy motions, says that when you're challenging the court's ability to hail you into court at all, which is exactly what Mr. Rodis is doing here, that is an important and inseparable order that is not reviewable on appeal later because you're being subjected to the burden, the harm, the stigma, everything that comes with further criminal court proceedings.

[00:04:24] Speaker 01:
That's no, no, go ahead.

[00:04:26] Speaker 00:
No, go ahead, go ahead.

[00:04:28] Speaker 01:
I was just going to say, but the situation, it seems to me, is very difficult to distinguish from the mine run, run of the mill motion in criminal cases to dismiss the indictment for one reason or another.

[00:04:43] Speaker 01:
It doesn't state a crime.

[00:04:44] Speaker 01:
There's no jurisdiction.

[00:04:46] Speaker 01:
There's this, there's that, and everything else.

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And those routine motions in criminal trials cannot be appealed.

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Double jeopardy is an exception, and that's because of the constitutional aspect to it.

[00:05:03] Speaker 04:
Yes, yes, Your Honor, you're obviously correct that the general motions brought pre-trial are not immediately appealable.

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And the Supreme Court is instructed to interpret interlocutory jurisdiction criminally strictly.

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But the reasoning behind that guidance to interpret it strictly is for the public interest in a speedy trial, for the public interest in proceedings moving forward.

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We're post-conviction.

[00:05:31] Speaker 04:
the court's reasoning and justification for why interlocutory jurisdiction is interpreted so strictly in criminal cases, I would argue inapplicable, but at least much less applicable in a case about revocation on supervised release.

[00:05:48] Speaker 00:
But how, Mr. Farley, does your argument intersect with the many cases that say there's no general right not to be tried, right?

[00:05:59] Speaker 00:
So we have collateral

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you know, order review when things are really important, if it's double jeopardy or there's a speech and debate clause issue, I mean, where there's some specific constitutional limitation on moving forward.

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But there are lots of cases that say there's, you know, just no general right not to be tried.

[00:06:21] Speaker 00:
And that it seems like what you're arguing for here for Mr. Rodas.

[00:06:28] Speaker 04:
There is, you're correct, there is no general right not to be tried, but as Your Honor just listed, there are constitutional protections for specific situations where you have a right not to be tried, where you have a right not to be hailed into court.

[00:06:42] Speaker 00:
So what's the right to that?

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What's the right here?

[00:06:46] Speaker 04:
The right here is analogous to the double jeopardy right not to be hailed back into court after you've fully completed your sentence.

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And analogous to one of the rights that is already recognized by the Supreme Court is the general test that courts of appeals, including this court, look to and whether or not in your locatory jurisdiction it's appropriate.

[00:07:10] Speaker 03:
I'm possibly persuadable that a typical motion to terminate supervised release is appealable when it's denied.

[00:07:19] Speaker 03:
But those motions and the provision section E3583E1

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Imagine terminating a validly imposed supervised release.

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I'm not sure you can terminate a supervised release that doesn't exist.

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And your argument is that the supervised release doesn't exist and never existed.

[00:07:53] Speaker 04:
Yes, Your Honor, our argument is that the supervised release term has become a nullity.

[00:07:58] Speaker 04:
That's the language of the D.C.

[00:08:00] Speaker 04:
Court of Appeals.

[00:08:01] Speaker 03:
How do you terminate something that was never alive?

[00:08:06] Speaker 04:
I think what Mr. Rodas would be asking is not for the actual terminated, the supervision to be terminated, but for the court to terminate its attempts to exercise jurisdiction over him.

[00:08:17] Speaker 04:
I think would be that we're dealing with a unique situation where we're having- That sounds like a habeas petition.

[00:08:22] Speaker 03:
If a court tries to impose some kind of, if any government entity tries to impose some kind of authority over somebody,

[00:08:31] Speaker 03:
without jurisdiction, that seems like a habeas motion.

[00:08:37] Speaker 04:
It sounds like one, but this court's opinion in Marsh instructs that the proper remedy for arguing that a court doesn't have jurisdiction to exercise supervision over you is to a direct appeal to this court.

[00:08:52] Speaker 03:
So you could have challenged the validity of the supervised release the first day of his supervised release or the first day that the court attempted to supervise him on release.

[00:09:09] Speaker 03:
I think you also could have challenged it as soon as the sentence was imposed and arguably you had to.

[00:09:13] Speaker 03:
But even putting that aside, I don't understand how you can get around the time limits for challenging an unlawful sentence

[00:09:23] Speaker 03:
I don't know how you can get around those time limits.

[00:09:28] Speaker 04:
Your honor is correct that Mr. Rodas could have filed this motion that I would say on July 14th, 2022, if there was any attempt on that day to exercise jurisdiction over him.

[00:09:41] Speaker 04:
But I would argue he had no obligation to.

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The jurisdiction can't, an argument that there is no jurisdiction can't be waived.

[00:09:48] Speaker 04:
The error is always plain.

[00:09:51] Speaker 04:
Mr. Rodas, that Mr. Rodas waited or didn't file this motion until possible re-imprisonment became a possibility.

[00:10:01] Speaker 04:
It's perfectly reasonable and

[00:10:05] Speaker 04:
Mr. Ernest had no obligation and the government hasn't sent any case data that he had an obligation to do so beforehand.

[00:10:11] Speaker 03:
Let me ask maybe just one more question.

[00:10:14] Speaker 03:
Even if you can appeal the denial of a motion to terminate supervised release, you can't appeal a motion, a denied motion to dismiss supervised release proceedings.

[00:10:32] Speaker 03:
I don't think, let's assume that.

[00:10:34] Speaker 03:
And it seems to me that in your appellate brief, your opening brief, that's what you appealed.

[00:10:42] Speaker 03:
On page little I, you say the, the, the ruling under review, the one, I mean, the one and only ruling is the order of the district court denying defendant appellate's renewed motion to dismiss supervised release proceedings.

[00:10:57] Speaker 03:
And then on page Arabic numeral one,

[00:11:00] Speaker 03:
You say that the issue presented review is whether the district court has jurisdiction to hold revocation proceedings for Mr Rojas Rodas, and then the argument section.

[00:11:09] Speaker 03:
You say the district court should have dismissed the revocation proceedings.

[00:11:17] Speaker 03:
For example, you say Mr. Rodas is no longer under supervision, which assumes that he was once under supervision.

[00:11:25] Speaker 03:
But I looked at the district court docket.

[00:11:28] Speaker 03:
I think, to be fair to you, it looks like you made a motion to dismiss and in the alternative emotion to terminate, which you can kind of think of as two motions.

[00:11:37] Speaker 03:
But then I think arguably, you only appealed the denial of the first motion.

[00:11:41] Speaker 03:
You only appealed the denial of the motion to dismiss the revocation proceedings.

[00:11:48] Speaker 04:
To tackle your question in a few parts, just first, Mr. Rhodes does concede he was under supervision for that one day that he was on probation on July 13th, 2022.

[00:12:00] Speaker 04:
To move further along, I think what your honor's pointing out is the difficulty with what you earlier pointed out, that how do you terminate something that doesn't exist?

[00:12:11] Speaker 04:
Is it a motion to dismiss the proceedings?

[00:12:14] Speaker 04:
Is it a motion to dismiss

[00:12:17] Speaker 04:
supervision generally.

[00:12:18] Speaker 04:
Mr. Rodas' appeal is appealing both the

[00:12:25] Speaker 04:
the district court's refusal to, or denial of his motion to dismiss supervision generally, which would include those revocation proceedings where he was being held into court.

[00:12:37] Speaker 04:
Mr. Rhodes has also challenged the reasoning behind the district court's motion, denial of his motion to terminate.

[00:12:44] Speaker 04:
And so Mr. Rhodes' motion includes both of those.

[00:12:50] Speaker 01:
Mr. Farley, this is Judge Randolph.

[00:12:53] Speaker 01:
Has your client been tried on the Fort Meade charges?

[00:13:00] Speaker 04:
The Fort Meade charges were disposed of.

[00:13:03] Speaker 04:
It says closed administratively on the docket.

[00:13:07] Speaker 04:
I believe that might be some term used in the District of Maryland I'm less familiar with that I think might incite some sort of plea agreement that I'm not completely clear on.

[00:13:20] Speaker 01:
So he hasn't been tried on these charges?

[00:13:23] Speaker 04:
No, he has not.

[00:13:24] Speaker 04:
That case has been closed.

[00:13:26] Speaker 01:
Okay.

[00:13:26] Speaker 01:
Were there other charges that were pending against him?

[00:13:30] Speaker 04:
Yes, Your Honor.

[00:13:31] Speaker 04:
There were other state charges in Maryland, I believe, all in Prince George's County, some of which have been resolved.

[00:13:42] Speaker 04:
Mr. Rodas is currently on home incarceration for one of those charges.

[00:13:46] Speaker 01:
He's currently in prison?

[00:13:48] Speaker 04:
No, he's on home confinement.

[00:13:50] Speaker 01:
Oh, home confinement.

[00:13:52] Speaker 04:
Well, okay.

[00:13:52] Speaker 04:
So he's subject to a sentence from Maryland State Court, yes.

[00:13:58] Speaker 01:
Okay.

[00:14:01] Speaker 00:
Mr. Farley, just one other question for me.

[00:14:06] Speaker 00:
Is there any evidence that he properly served his one day of probation in the record?

[00:14:11] Speaker 00:
Like, is there any, I mean, do we know anything about that one day of probation, like whether he met the criteria for probation or whatever that was?

[00:14:22] Speaker 04:
What I would say is that to show any sort of violation or problems with that one day of probation would be the government's burden.

[00:14:34] Speaker 04:
There's nothing in the record indicating that there was any sort of violation or anything improper happened on July 13th, 2022 that would have resulted in that meaning that his probation did not complete as written.

[00:14:53] Speaker 00:
If Judge Randolph or Judge Walker have any other further questions.

[00:14:58] Speaker 01:
No.

[00:14:59] Speaker 00:
Okay, thank you.

[00:15:04] Speaker 00:
Mr. Hansford, are you ready?

[00:15:07] Speaker 02:
Sure.

[00:15:08] Speaker 02:
Good morning and may it please the court, Eric Hansford for the United States.

[00:15:13] Speaker 02:
This court lacks jurisdiction over this interlocutory appeal.

[00:15:18] Speaker 02:
The revocation proceedings remain pending in the district court.

[00:15:22] Speaker 02:
And denial of a motion to dismiss a revocation proceeding is a classic non-final order that can be heard after the revocation proceedings conclude, but is not subject to interlocutory appeal.

[00:15:39] Speaker 02:
And I think the defendant is offering what I understand to be two separate jurisdictional theories here.

[00:15:46] Speaker 02:
One is the motion to terminate theory and one is the collateral order doctrine.

[00:15:50] Speaker 02:
So I can just address those in order.

[00:15:55] Speaker 02:
So as to the motion to terminate, I think there are two problems with that theory.

[00:16:00] Speaker 02:
First is that the cases that say a motion to terminate is appealable are cases where, as Judge Randolph's questions were going to, where the proceedings in the district court have been concluded.

[00:16:13] Speaker 02:
So the classic statement of when something is final, this comes from Midland Asphalt as well as other cases, is that a decision that ends the litigation on the merits.

[00:16:24] Speaker 02:
So, in the cases that are finding jurisdiction to review a motion to terminate, there's nothing else pending in the district court.

[00:16:35] Speaker 02:
Here, by contrast, there is still the revocation proceeding pending in the district court.

[00:16:40] Speaker 02:
Therefore, it's not final and instead has to go through the collateral order doctrine to get review.

[00:16:46] Speaker 02:
The 2nd problem with relying on those cases to judge Walker's questions is that the issue that's being pressed on appeal is not the motion to terminate the motion to terminate was.

[00:16:58] Speaker 02:
I mean, I think it was largely an afterthought in the litigation.

[00:17:03] Speaker 02:
It was really only articulated in the reconsideration litigation, but the district court.

[00:17:08] Speaker 02:
This is on A25 of the record, which is the minute order that denies the reconsideration motion.

[00:17:16] Speaker 02:
It describes the motion to terminate as, even if jurisdiction exists, defendant supervised release should be terminated as unsuccessful.

[00:17:25] Speaker 02:
And the defendant was making that motion on the theory that supervision was doing more harm than good, that he had a job and he was being pulled out of his job to do drug testing and mental health testing and things like that.

[00:17:40] Speaker 02:
But that's the motion to terminate argument, which is that I shouldn't, even assuming you do have jurisdiction, I am on supervised release, you should terminate my supervised release early.

[00:17:53] Speaker 02:
And under the statute that looks at

[00:17:55] Speaker 02:
the interests of justice and how the person has done on supervised release.

[00:18:00] Speaker 02:
It is not an argument that I was never on supervised release in the first place.

[00:18:05] Speaker 02:
And so that sort of argument that I was never on supervised release in the first place, that is brought through a motion to dismiss.

[00:18:12] Speaker 02:
And that's the only argument that the defendant is actually pressing on appeal.

[00:18:16] Speaker 02:
He's not arguing now that

[00:18:18] Speaker 02:
the district court should have terminated early based on the factual circumstances underlying my supervised release.

[00:18:28] Speaker 03:
You agree that if there had just been a one-line motion that didn't mention anything about the revocation proceedings and it just said, I move to terminate my supervised release, that that would be appealable when it was denied?

[00:18:48] Speaker 02:
not if the revocation proceedings are ongoing.

[00:18:52] Speaker 02:
And I think that is similar to the circumstances in the unpublished Fourth Circuit cases that we cite, Terry and Muhammad, where there's a revocation proceeding that's ongoing, and then the defendant asks to change aspects of his supervised release.

[00:19:10] Speaker 02:
And the Fourth Circuit in both cases very quickly says, well, because there's still stuff pending in the district court, you can't immediately appeal that.

[00:19:21] Speaker 02:
You have to wait for the revocation proceedings to resolve.

[00:19:25] Speaker 03:
I mean, I know no district court in our district would do this, but if the district court just took forever to do the revocation proceeding,

[00:19:35] Speaker 03:
there be some way, I don't know, I don't know if it's something like mandamus or something similar.

[00:19:43] Speaker 02:
Right, so yes, so mandamus I think is kind of the classic remedy when there is unexplained lengthy delay and that is kind of what could be sought.

[00:19:54] Speaker 02:
I think it's notable here that the district court, when it denied at the hearing, when it gave its

[00:20:01] Speaker 02:
reasons for why it was denying the motion to dismiss, it was ready to proceed with the revocation proceeding.

[00:20:09] Speaker 02:
It was ready to go right then.

[00:20:10] Speaker 02:
And it was the parties who asked that the revocation proceeding wait to see what happens in the pending state court cases.

[00:20:18] Speaker 02:
Now, it's been denied.

[00:20:19] Speaker 02:
It's been delayed further at the government's request to see what happens in those revocation proceedings.

[00:20:26] Speaker 02:
But on the day of the revocation,

[00:20:28] Speaker 02:
It was scheduled for a revocation proceeding.

[00:20:30] Speaker 02:
The district court denied the motion to dismiss and the defendant and the government together asked, don't go forward with the revocation proceeding.

[00:20:40] Speaker 03:
Let's say we say we don't have jurisdiction and then when the time is right,

[00:20:50] Speaker 03:
The question of whether the sentence was allowed to impose prison plus probation plus supervised release gets before us.

[00:20:59] Speaker 03:
Let's say we vacate that sentence.

[00:21:02] Speaker 03:
Could the government argue at resentencing?

[00:21:05] Speaker 03:
that now that we know what his behavior has been since sentencing, that the court should impose a longer, harsher sentence than it did originally.

[00:21:23] Speaker 02:
I've not looked at that specifically.

[00:21:25] Speaker 02:
I think Pepper stands for the opposite proposition, which is that where you're resentenced after a long delay, the district court can take into account good behavior between the original sentencing and the later sentencing.

[00:21:42] Speaker 02:
I think the argument would be the same on the government side, but I think there's also

[00:21:49] Speaker 02:
issue that the government could argue for at resentencing, which is the kind of little two type issues, which is that if the government was not able to get supervision over the defendant through the DC code provisions, then that might well warrant a longer term.

[00:22:09] Speaker 01:
I mean, you'd also have a problem under North Carolina versus Pierce.

[00:22:13] Speaker 01:
a due process problem where if it had been a direct appeal, you can't get a higher sentence on retry.

[00:22:27] Speaker 02:
Well, you could get a higher sentence if you're knocking out what the district court understood to be part of the sentence.

[00:22:38] Speaker 02:
And I think that's what little two goes through.

[00:22:42] Speaker 02:
I do think it's important, the hypotheticals,

[00:22:46] Speaker 02:
I don't think are occurring here because as I understand the defense position, they don't want a resentencing.

[00:22:53] Speaker 02:
They don't want this court to vacate under circumstances and send it back for resentencing.

[00:22:59] Speaker 02:
In fact, and I suspect that's because the sentence already reflects and the government is not challenging a significant

[00:23:08] Speaker 02:
windfall to the defendant, which is that the supervised release term or, sorry, the incarceration term here was 16 months of immediate incarceration, then 14 months of suspended incarceration.

[00:23:23] Speaker 03:
I agree, I think that's what Mr. Farley is proposing.

[00:23:28] Speaker 03:
I mean, he's proposing the remedy as you described it, but just because he wants it doesn't mean he'll get it.

[00:23:35] Speaker 03:
And then, I mean, I think some of these, you know, little did not end up in a better place when he, after he won his appeal.

[00:23:49] Speaker 02:
Right, that's exactly right.

[00:23:51] Speaker 02:
And I think that Mr. Farley, I don't want to speak for him, but as I read the reply brief, he does not want to go back for resentencing, maybe because of those sorts of concerns.

[00:24:04] Speaker 02:
I did have one more thing I wanted to say on the collateral order doctrine that may be helpful, which is that when you're looking at this right to trial, the double jeopardy type claims,

[00:24:16] Speaker 02:
Midland Asphalt, from Justice Scalia's opinion there, recognizes that almost any right could be, with wordplay, reframed as a right to trial.

[00:24:29] Speaker 02:
But then he says, what we are looking for is an explicit statutory or constitutional guarantee that trial will not occur.

[00:24:38] Speaker 02:
That's what triggers

[00:24:40] Speaker 02:
There is this right to trial under appeal ability under the collateral order doctrine.

[00:24:49] Speaker 02:
And that does not appear to be satisfied here.

[00:24:52] Speaker 02:
He's not arguing there's some freestanding explicit constitutional or statutory right not to have the revocation proceeding go forward.

[00:25:02] Speaker 00:
What about the analogy that Mr. Farley made that

[00:25:06] Speaker 00:
After conviction, after someone has served their sentence, there are similar concerns to something like double jeopardy.

[00:25:14] Speaker 00:
You know, he's making an analogy to that.

[00:25:17] Speaker 00:
What would you say to that argument?

[00:25:20] Speaker 02:
So I mean, to be clear, he has not served his written sentence, right?

[00:25:26] Speaker 02:
His written sentence is supervised release.

[00:25:30] Speaker 02:
So he is instead trying to alter the terms of his written sentence, which none of the cases that he is citing deal with.

[00:25:38] Speaker 02:
He was not sentenced to...

[00:25:41] Speaker 02:
probation, immediate probation.

[00:25:44] Speaker 02:
He was sentenced to suspended probation.

[00:25:46] Speaker 02:
And so he has not served his supervised release plus his incarceration, which is where the cases that he's citing would come up potentially.

[00:26:02] Speaker 00:
Okay.

[00:26:04] Speaker 00:
Any further questions?

[00:26:05] Speaker 00:
Judge Randolph?

[00:26:06] Speaker 01:
No.

[00:26:07] Speaker 00:
Judge Walker?

[00:26:08] Speaker 00:
Okay.

[00:26:09] Speaker 00:
Thank you.

[00:26:11] Speaker 00:
Thank you, Mr. Hansford.

[00:26:12] Speaker 00:
Mr. Farley, we'll give you two minutes for rebuttal.

[00:26:16] Speaker 04:
Thank you.

[00:26:16] Speaker 04:
I'll begin with the government's reliance on Justice Scalia's opinion in Midland Asphalt.

[00:26:22] Speaker 04:
Justice Scalia's dissent in Sel, the later in time case, points out that what he tried to establish in his opinion in Midland Asphalt is no longer the case.

[00:26:32] Speaker 04:
Interlocutory jurisdiction is appropriate not only when there's a specific right that can be pointed to, but when there are analogous things that you can point to.

[00:26:42] Speaker 04:
And that is shown in district courts, sometimes exercising interlocutory jurisdiction criminal cases and recognizing that there is some flexibility there.

[00:26:53] Speaker 04:
As for Judge Walker's questions about whether or not Mr. Rodas could be sentenced to a more strict sentence, I agree with the conversation that Mr. Rodas is not seeking resentencing, and we argue that that is not a possibility here, but if there is a resentencing involved, Mr. Rodas cannot be sentenced to a greater sentence because he has a legitimate expectation of finality in his sentence.

[00:27:21] Speaker 04:
Little to realize,

[00:27:23] Speaker 04:
I think almost entirely on the fact that Mr. Little appealed his sentence under direct appeal to show that he didn't have a legitimate expectation of finality.

[00:27:31] Speaker 04:
That is not the posture here.

[00:27:33] Speaker 04:
Mr. Rodas has that expectation and his sentence cannot be increased.

[00:27:38] Speaker 04:
That's Townsend.

[00:27:39] Speaker 04:
That's North Carolina versus Pierce, as Judge Randolph pointed out.

[00:27:44] Speaker 04:
I think my last point would be that, as Judge Walker asked, if Mr. Rodas had filed this motion one day before the petition, potentially in a one-line motion like you proposed, there would be no argument that there couldn't be jurisdiction on appeal, and none of the cases pointed out by the government say why.

[00:28:03] Speaker 03:
He did make the argument.

[00:28:04] Speaker 03:
Mr. Hansford made the argument.

[00:28:06] Speaker 04:
Mr. answered said that response was that not in the cases where there is ongoing revocation proceedings.

[00:28:14] Speaker 03:
So your hypothetical is not that.

[00:28:18] Speaker 04:
Yes, I was saying if he had filed it one day before the petition was filed, then there would be jurisdiction on appeal here.

[00:28:26] Speaker 04:
And the unpublished cases in the Fourth Circuit don't explain why probation filing a petition would divest this court of appellate jurisdiction, one of which explicitly points out that the district court hadn't actually ruled on the motions yet.

[00:28:43] Speaker 04:
And so appellate jurisdiction was inappropriate.

[00:28:48] Speaker 04:
So those cases should not control here.

[00:28:54] Speaker 03:
And you might be right about Little not being analogous and the remedy that you would get if you win, either with this panel or if there's no jurisdiction here, a future panel.

[00:29:04] Speaker 03:
But sometimes our best guesses are not right.

[00:29:10] Speaker 04:
That's correct.

[00:29:12] Speaker 04:
Obviously, we don't ask courts to speculate on future things.

[00:29:18] Speaker 00:
Okay.

[00:29:19] Speaker 00:
Thank you very much.

[00:29:20] Speaker 00:
Thank you to both council.