# Oral argument — United States v. Alberto Paz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A10707 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** January 8, 2015 ## Text 1410243 United States of America v. Alberto Paz Ms. Markley. May it please the Court. This case concerns the 2013 amendment to the commentary to guideline 3e 1.1 which addresses government motions for the third level reduction for acceptance of responsibility. The particular language the parties dispute in this case is this. The government should not withhold such a motion based on interests not identified in section 3e 1.1 such as whether the defendant agrees to waive his or her right to appeal. So is it your position that the government can with the government can't withhold has to even if they know there's ongoing criminal conduct the government has to give the third point and then the court can in its discretion decide that that's a factor to not give the sentence that it chooses and can you weigh that? It has to I mean that seems like it's a lot to put on the government that they have to give the point even if they know of ongoing criminal conduct. That is my position and it's not a lot to ask of the government because the third point inquiry does not arise unless and until the district court has already ruled that the defendant has accepted responsibility and done so sincerely. So this doesn't come up unless the court's already evaluated the government's argument that he hasn't really as evidenced by ongoing criminal conduct and has overruled that argument and has made its own determination of the subsection A. Okay but this case points up the problem with that. The district court acknowledged the continuing criminality but decided it wasn't you know was going to give the two points anyway but then said the government gets to decide on the one point. Now we know that the appeal waiver issue has been changed I understand that but what what to me is concerning about your your position is that the rule the amended the amendment says the government shall not withhold such a motion based on interests not identified in 3e 1.1 continuing criminality is in 3e 1.1. Well respectfully I disagree it's an application note 1 and that application note is limited to subsection A. It's not limited to that it says this is what the court can consider it and the term is not you know be with 3.3 e 1 B it says interests identified in the rule the rule is about acceptance of responsibility the factors in comment 1 are talking about what indicates acceptance of responsibility so the idea of this amendment is to say we're not going to allow you to consider things that aren't part of this universe of acceptance of responsibility but certainly continuing criminality is and should be part of that universe so the idea that we would say the government is without any to go from a situation where the government had broad discretion to a place where the government has no discretion at all if the person is what a sentence like this is going for I mean it would have been a much more restrictive sentence this says interests not identified in 311 and the interests are acceptance responsibility the way you determine that we have the factors if they meant to restrict it to just timeliness they could have said so as they do talk about a and B and so on throughout the rest of the comments they did say so because section 3e 1.1 lays out two particular government interests in subsection B and those interests are conserving well permitting the government to avoid preparing for trial and permitting the government in the court to allegate their resources efficiently those are the government's interests the things listed in application note a or 1a well one I'm sorry are not government interests those are government interests it says based on interest and the interest of 311 is what shows acceptance of responsibility so somebody's out on the street corner selling drugs that doesn't show acceptance of responsibility and the government ought to be able to say well look okay the district judge is going to do what they're going to do on the first two points but I at least should be have some ability to not ask for the third point when somebody continues criminal conduct I believe there are several examples in the language of the guideline itself it's commentary and the reason for amendment that show that the government interests are limited to considerations for the court in note one the first is that the phrasing under subsection a in note one that limits those considerations to the court's consideration was not the original language it used to say in determining whether the defendant qualifies for this provision these are the considerations in 1992 when the when the Commission added the third level reduction it added that it changed that language from for this provision to under subsection a so it clearly was bifurcating the analysis of which considerations go to subsection a and which go to be second it does say interests identified in 3e 1.1 and these are not interests these are not interests of the government or of the court and I think the reason it it doesn't necessarily say government's interests although it is referring to the government's motion I think that can be implied is that there is also the court's interest in allocating its resources efficiently in subsection b interests identified 3-1 are if the defendant has demonstrated acceptance responsibility that's that's what 3e 1 is about how do we know what are the the ways we know somebody has well if they have truthfully admitted conduct if they voluntary terminated action they voluntarily paid restitution they've surrendered to authorities they provided assistance this is how we know if they've accepted it and it seems to me let's put it this way I don't think this sentence can be said to overrule our prior precedent on what the government can look at except to the extent that it's now limited to the interest in 3-1 I mean you're basically saying the government is mandated to give this point here that's a huge shift from where we were admittedly now the cases we had about broad discretion have been tempered by this sentence but if they've been tempered all the way from broad discretion as long as it's not a you know constitutionally infirm motive to zero discretion if the guy is timely you have no discretion that's that's where you said this sentence has taken us and I don't read that in that sentence okay if I could point out some other examples another reason actually is that these considerations and no one this is quintessential judicial fact-finding and the judge has to make this ruling and there is nothing here that says the well you looked at all this and you waited and you did your judicial fact-finding but we disagree and we should be empowered to reweigh those factors re-evaluate and second-guess your ruling and make our own decision on the very same fact-finding questions that are in note one there is a good reason for the judge to defer to the government on the interest listed in subsection B the government is in the best position to know whether it saved resources there is not a good reason for the government the court to have to those are court considerations and they've been given to the court next if you look at the next part of the same amendment the next paragraph starts if the government files such a motion and the court and deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his misconduct by timely notifying authorities of his intention to plead guilty permitting the government to save resources the court should grant the motion that's saying that the courts question is the same as parallel to the government's question and that question is did he plead guilty in a way that saved the government's resources and allowed it to prepare to avoid preparing for trial that's the inquiry under number under subsection B that's right there in this the second sentence of the amendment okay let me just be clear your position is if the guy timely pleads the government has no discretion whatsoever anymore no the government can evaluate whether it saved resources and whether it can serve court resources only continue yes there's no mention of continuing criminal conduct it's only conservation of resources it's only those interests interests listed in subsection B and that's consent consistent with the commentary to three this to section 3e 1.1 as the government shouldn't withhold based upon on interest not identified in the guideline when the interest in yes I mean that presents a question what are those interests and those interests are the ones listed in 1.1 B I mean they're all throughout the rest it talks about a it talks about B then all of a sudden it doesn't say B and you're wanting to read back B well again subsection note one is specifically limited to some section a and was done so by conscious choice by amendment to the guideline additionally previous yes clear that it's it's only relevant when the defendant qualifies under subsection a so yeah yes but it nevertheless identifies interests no it identifies one which the interest of 3 1.1 are whether the defendant is accepted responsibility and comment one helps us understand that well respectfully it says appropriate considerations those are considerations for the court they're factors they are not government interest there's not voluntary payment but the whole interest of 3 1.1 is acceptance of responsibility that's what its interests are did the defendant accept responsibility no because that decision goes to the district court under subsection no but that's what three people 1.1 is about I'd like to point you to a few other points before I run out of time in note six it says timeliness is a consideration under both subsections if everything in note one were a consideration under both subsections that language would be completely irrelevant we would have to note six also describes the section B applicability is where the defendant qualifies for decrease under subsection a it doesn't call for reweighing or reevaluating those factors the court already ruled on it he qualified for this reduction under subsection a so then the only other thing it says beyond that is is the section B questions right there in note six the contents of the motion itself under subsection B must state required to state those things I previously talked about the defendant timely assisted the authorities he saved the government and the court resources I to me what I'm focusing on is what changed with this sentence and we had law that said the government has broad discretion as long as it's not some you know racial motive or unconstitutional motive okay this then they we started approving the idea of the appeal waiver as a reason and so then this sentence was added to change that and to limit the broad discretion of the government but I don't read it as taking us from total discretion putting aside unconstitutional motives to pretty much zero discretion if there is a timely resource-saving plea and and you're saying it does and to me this sentence doesn't encompass that what I see is that we had broad discretion now that discretion is tempered by your reasoning your thinking in filing a motion he has to at least incorporate the interests reflected by this rule and this rule encompasses acceptance responsibility which includes continuing criminality being inconsistent with that so what's wrong with that thinking about the evolution of how we got where we are I think it was just overbroad interpretation because what the Commission says and its reason for amendment is we went back and we looked at the Protect Act and how this came about and we didn't find anything that we could discern no congressional intent to allow decisions under section 3e 1.1 to be based on interest not identified in 3e 1.1 appeal waivers were an interest under that but there's no freestanding rational basis test divorce from timeliness and conservation of resources that's your position I'm not understanding your question okay I know that's was actually a fairly friendly question that that you can't just say all these interests it has to be married to timeliness and conservation of resources to be married to those identified and so even under our precedent prior our press a prior precedent and Newsome yes and in fact Newsome dealt yeah but it's a rational basis test but it's not a freestanding apart from is Newsome still effective I mean in light of the change of the the guidelines and the footnote doesn't it's specifically mentioned Newsome well Newsome was limited just to appeal waivers or that's what it addressed and I think that even the government concedes that that's gone the government would like to say that's the only thing that's gone but the such-as language and the an example of language and the reason for amendment show it's not furthermore the Second Circuit's decision in Lee which the Commission also relied on and saying here's what we need to fix was not about appeal waivers so this was not limited to appeal waivers and their language choice didn't say you can't do it for appeal waivers it said you can't do it for interest not identified and I mean I agree with that I just I'm disagreeing with an interest in 3 1.1 is and I think that's the bottom line what does that mean does it is it limited to be or is it does it encompass the overall acceptance responsibility to which continuing criminality has relevance I'm going to lose my rebuttal time but I would like to quickly note that these are complicated questions and open questions and the district court never got to pass on them because this was not raised this was really based on what was gospel at the time which is you don't waive your right to appeal you don't get it we all know that was wrong now so I think it would be reasonable or appropriate to remand and let the district court pass on all of this in the first instance as well and not decided say that there's been cases decided in new commentary and you need to but what is the court going to decide that's factual here I mean the problem is we if the if the if the guideline allows if the comment allows only consideration of timeliness then this issue of continuing criminality is irrelevant and we don't need the district court to look at that if it allows constituent can consideration continuing criminality the government did consider that and argued that you shouldn't even get the two points for that so what is the district court going to look at we don't need the district court to help us construe law although I'm sure they're experts at it what is the what if facts are we going to need to develop in the district court that might warrant a remand to a busy district judge may I answer him the district court never got to consider any of this it never heard argument on any of this it never weighed whether the government what interests the government was relying on they tell us now that the same thing they relied on for the two-point opposition they would have relied on for the third point opposition but they weren't even asked they gave no reason so there's no evidence that the government was even relying on the continued criminality no because there's nothing before us that would answer that question definitively that's correct the only thing we know is they relied on that to oppose the two-level reduction under subsection but if we were going to send it back for the district court to consider the first shouldn't we give them the district court guidance on whether that's a proper basis so that the district court can know whether to consider that argument or I feel like I've looked at this language pretty thoroughly and I don't necessarily object to that but I am troubled by the fact that this is open and somewhat complex and it just was it's not part of this record to look at the whole question not just the factual question of what the district what the government argued but if we send it back isn't it an open sentencing and so the government could argue it now for the first time and the district court would also be free to not give the acceptance of responsibility I mean on even on the first two points I mean it'd be just a whole open sentencing wouldn't it what would we send it back that would please you I think for a consideration of the third level reduction I don't I think which would mean it's an instruction to the government because they're the only ones that can move for that third point not to the court but to the government sort of put them on the spot that they must if we accept your argument that the government must move for a third point I think like always they would either have to move for the third point or identify a reason why they aren't and that reason can be evaluated by the district court to determine whether it's appropriate and in doing so the court could legal question that we're the people can do that I mean you know judge Lin's terrific but we don't ask district judges to take time to help us with the law we ask them to take time to help with the facts or to reconsider things in light of a change in the law or our review that they got the law wrong something like that but I don't like wasting time just to go back and develop more of a record on the law I'm sorry they don't make any sense to me but again I'm just me we don't know the fact misunderstood we don't know the facts do we or maybe the government will tell us because we don't know whether the government relied upon the thing that you say is impermissible or not well we know that they relied at least in part on the appeal waiver because they've considered that was their primary we know they relied upon the appeal waiver which everybody agrees is impermissible yes but we don't know if they relied upon that's the whole thing that we're talking about today we don't even know if the government is intending to rely on that or not I think we do know that the district court considered this a closed book under new Senate under the appeal waiver and I just wanted to note that I'm troubled by the fact that the judge did not happen we sent a whole bunch of cases back just vacated and said reach reconsider post news in light of the the new precedent and we didn't know pine either way that's true and we just a whole slew of cases we just send them back and say reconsider the new without the appeal waiver and we don't opine on anything else that that has been the case and this I think is the first one that were those cases where there was some other reason at least just discussed in the record or were those cases that relied solely on the lack of appeal waiver I think the record showed the appeal waiver but I think that's what this record shows as well as record does show suggest something else at least raise the possibility of something else which these other cases did but anyway we should let you sit down and appreciate the government can can help us understand motivation for now right it's it's it's funnel yes I know okay but the accent in the wrong place Oh clear clear this up for us well good morning and may it please the court my name is Tim I'm representing the government in this case the judgment should be affirmed because the government properly exercised its discretion when it denied acceptance based upon an interest that's identified in section 3e 1.1 and specifically what we relied upon in the record bears this out is that mr. paws engaged in criminal conduct continued criminal conduct on pretrial release so there's no that's in the record weird how do we know that that's what you relied upon and not the appeal waiver issue it's in it's in several places first of all the pre-sentence report denies acceptance based upon the criminal conduct we agreed with the pre-sentence report and that's in writing the defense objected we then responded to the defense's objection citing exclusively the engaging in criminal conduct including the relevant case log Lucas case for example in the Watkins case fast forward to the sentencing hearing the district court immediately takes up the issue of discussion at that point is exclusively about the continued criminal conduct and whether that is a basis to deny acceptance of responsibility the the government is asked for its position we state our position at no time does the government indicate that we're relying on the retention of appeal rights to deny acceptance the judge makes her ruling and in her ruling she explicitly acknowledges what you had raised your honor is that district courts are not uniform in how they view the continued criminal conduct she admits that the district court admits that and says you may go down the hall and because I am saying that possession of a controlled substance while I admit that it's continued criminal conduct I am NOT going to deny acceptance because I think it should be more related more tied to the offense of conviction so for example Mr. Boyle was not Mr. governor prosecutor do you have evidence that this defendant wasn't just using in violation of the law but distributing that's another issue I mean that's the issue for acceptance of responsibility for the for the court in their way and there is a split on that your point on the one point is that where you're going yes that's where I get there that's where I'm going with and so they have that discussion your honor about whether the district court should grant the two points and then the government says what we're not going for the one point then the district court makes her ruling on the two points she immediately then asked following on the heels of that conversation she immediately asked the prosecutor I take it then that the government is not moving for the third point and that doesn't tell us why I think it does I think there's ambiguity there so is there a reason to ask the government to send it back to ask the government why it was not moving I disagree I don't think there's any ambiguity in the record you can disagree with me but if I think that she's moving on and asking a different question and in the appeal waiver issue was still alive and willing back then and she doesn't say because of in light of this you are doing that she has no kind of sentence like that and I think it's vague what is the answer if it's vague as to what the government was doing well here's another reason why I don't think it's vague your honor and that is can you answer my question please what if it is vague what is the solution if it's vague well if indeed we don't have the facts to answer the question then of course remand is conceded before this court and other cases that remand is necessary as you suggested your honor where we have relied upon or at least there's some question about it we're not clear as to what the basis the government relied upon at the sentencing hearing not what it's relying on today but what it was relying on the sentencing hearing we should remand for a complete do-over or for some limited thing no I think it should be similar to when we had to do the Palladino remands when it was specifically directing district courts we only need a factual resolution here's the problem that I still understand go change this question and then tell me what the remand would say I understand in the cases where the sole reliance was on appeal waiver the remand is going to be because we're going to now get the point and now we have to redo the sentence with the point granted under new guidelines and that's why we're having a remand I don't really understand having a remand to try to say that continuing criminality is an interest that's part of three or you know the the lack that the presence of continuing criminality goes against the interests identified in three one point one we were to say that then what's going to happen on remand are you going to move for the additional point no because we because of the continuing criminality yes and therefore what are we remaining for if that's a factor if that's not a factor if you're not allowed to consider that then the remand makes sense to me because then the point seems to be automatic here because there's nothing else that's been identified here in terms of what you might be relying on so I think and you tell me if I'm wrong we've got to decide is continuing criminality and or preventing crim continuing criminality part of the interest in 3d 1.1 to which this comment refers or not or are we limited solely to timeliness and its brothers of saving resources I I absolutely agree with you that that question needs to be answered and it's a question of law right I mean this idea that I agree I mean I think judge Lynn's a terrific judge I'd love to hear her opinion on it but I it's not what we asked district courts to help us do our work our work is to decide questions of law okay so if we were to remand though because it was unclear and to make you actually make it clear what would we what would the remand say I want to be a full remand or would it be some type of limited instruction remand I want to make it clear when I answer your question your honor that I'm not conceding that it was made that very clear it's made made that abundantly clear but will you please answer my question the remand would simply indicate whether the government relied solely upon an impermissible factor namely the retention of appeal rights or whether the government identified another interest in section 3e 1.1 upon which to base its motion because according to your analysis your honor we answer the question about whether or not would we answer the central question of this appeal though in the remand order or would we leave that open for another day well I think it has to be there there has to be a ruling from this court that identifies what interests are permissible so we would need to decide whether it was a permissible interest or not yes or we send it back yes your honor because the court could know whether so when they went back the government know whether they were allowed to rely on that or not yes because it determines the scope of the remand not just not just a fact question but also the scope of the remand what happens in a situation where the government doesn't move for it doesn't give a reason and there's can there be an appeal suggesting that maybe there was an improper reason for not giving the third in other words are we going to get to the point where the government's going to put on the spot at every sentencing explaining why they choose not to give the third point or is is there some sort of obligation on the government to explain itself every time it does not give the third point well because the abuse of discretion and because as your honor had indicated it used to be nearly unfettered and now it is tied to the interest identified in section 3e 1.1 I think it's reasonable that the government in order to support the withholding of the motion and to prevent having to you know come up in front of the Fifth Circuit and identify and avoid the challenge I think it's incumbent upon the government to identify an interest in section 3e 1.1 and it just didn't can it just identify an interest yes can it be does it have to actually be a valid interest and you know it's judge Lynn was opining there's a dispute among the district judges where the possession is the continued criminal conduct so can the government rely on possession and even if the even if the court can't as long as it's supported by the facts and the law but that but what if so what if we say come along and say possessions not good enough for for that so does that mean then the government can't use that as a third factor anymore that's correct and that would mean the district court couldn't either but the district court didn't hear the district court thought it was ham the district court thought it was limited and decided it couldn't get it had to give the except if the district court thought it had to give no the district court if you look at the sentencing record you referred to her general general practice because because she's concerned that it might be reversible error to do something different because there's a there's a dispute in the circuit well I would respectfully disagree with with what the district court was concerned about well okay she has a general practice because she has some concerns about whether it's fair and appropriate would the would you have that same constraint upon you only if we specifically rule on that should we rule on that issue in this case it's part of whether or not that's a legitimate issue because whether or not the possession is good enough is continuing criminal conduct such I mean that's a live issue in this circuit and why isn't that just as much part of whether this is appropriate and nobody's briefed that here well you're I think it is part of our briefing and it was part of my 28 J letter my supplemental letter to this court where just very recently a panel of this court in the Castillo case talked about and frankly addressed it as a settled question yeah but and you have the flukus case you have the Watkins case etc so I think that's a settled question and here I think the district court acknowledged that from a legal standpoint there would have been no problem for her as a district court judge to agree with the pre-sentence report so agree it was appropriate that under her general practice but she didn't do that as a matter of law nor did she do it as a matter of fact I mean the fact she doesn't think it's the right thing to do and it's her discretion that's right and the what the protect act did was it divided the three points into judicial discretion and governmental familiar with that in fact I'm gonna ask you some questions about the commentary the commentary section 3e 1.1 states the government should not withhold a motion based on interest not identified in the guideline in turn the guideline states that the additional one point deduction is triggered when the defendant has timely notified authorities that his intention to plead guilty permitting the government to avoid preparing for trial and permitting the government and the district court to efficiently allocate their for their resources I don't see any mention of continuing criminal conduct as a factor please respond your honor that same language but was before the Fifth Circuit in the Newsom case and what the Newsom case held and is is still an appropriate holding is that the government is not bound solely by the timeliness but consider can consider the purpose of the rule rationally related to the purpose of the rule that has been curved now by the single sentence that was added but as judge Haynes indicated that sentence is broader it does not define subsection a versus subsection B it allows the government to consider interests in section 3e 1.1 doesn't a freestanding rational basis test divorce from timeliness and conservation of resources blur section 3e 1.1 allocation responsibilities between the district court and the government no your honor the the Protect Act explicitly divided the the duties here and acknowledged and told both the sentencing courts and the commission that we want the government to have a discretionary role here I mean if timeliness were the sole issue then they would take the government motion out of it we would just say the defendant has to prove he was timely and saved resources and then the government could object to say didn't why put the government in the middle of having to make a motion here if the government's discretion is totally is non-existent that's right and Newsom remains viable not only because it held that the government motion is required but also the second prong as tempered by that second by that additional sentence from amendment 775 because this doesn't say the move the government is required to file such a motion it says the gut this the judge gives another point if blah blah blah and upon motion so there's nothing here that says the motion is required and yet the argument from the other side would be the motion is government's required and there's nothing here about it being required in fact that's the antithesis of discretion that's right and I could read Newsom differently though that the government's refusal must still be rationally related to a legitimate government interest identified in 3E1.1B namely the conservation of resources if it has to be rationally related to a legitimate interest you could say that it has to be related to the interest that the government is given in the guideline the B but that's not what continuing criminality would not meet this test we have to look at Newsom if you're gonna use Newsom you have to say it has to be rationally related to what's legitimate and so that begs the question you then look at this at the guideline and the commentary to say what is legitimate that's right and the guideline and the commentary and in terms of the the amendment of section 401 G of the 2003 Protect Act it's silent as to what properly may motivate the government to withhold a third point but it's not silent as to what may motivate the government's decision to move its motion must state that the defendant timely pleaded and conserved resources well the the commentary also says and the Commission engaged in this analysis for the stated reason of resolving that circuit split and determining the scope of the government's discretion and their analysis led them to add that single sentence and that sentence does not limit it does not limit the government's discretion to subsection be the language there it's broader than that you're in it why doesn't you against this entire rule where they talk about a and B endlessly the omission of B under 3e 1.1 in this sentence is rather telling it is and now is it your position that it's not a legitimate government interest whether somebody continues to violate the laws of the United States no it certainly is however we I think the government acknowledges that Newsom as it was decided it was decided before that sentence was added right and so I get that but I mean the discussion you just had with judge all right seemed to suggest that the government doesn't have an interest in this question of continuing criminality and I would think that the u.s. attorney would care about whether people continue to violate the United States law which the u.s. attorney is charged with prosecuting violators of work absolutely we're not here in some general sense as to what would be a good thing that the government would care about we have we're here in a very tiki-tac regime and we have to follow the exact stated text and my question for you has to do with what was raised by opposing counsel that your reading renders language superfluous could you please address that well I don't recall specifically which provision in the beginning of six it talks about the timeliness as a consideration under a and B and therefore you wouldn't need that that you wouldn't need this sentence but this sentence is referring to the interest that you can take into account not the question of whether timeliness is relevant to both right and also that same language your honor was before the court in Newsom it was it was part of the circuit split and at that time there was the whole question of whether the government's discretion is limited to timeliness or not that was resolved in in a way that the question was answered no it's not the only change since then is the addition of a sentence that actually supports the government's position here which is that it relied upon an interest identified in section 3e 1.1 so the only change the evolution that judge Haynes talked about is the addition of a sentence that further supports our position today nothing takes us back to pre protect act law where the government's did not have any role or does it take us back and and actually vitiate Newsom completely and and say the government doesn't answer the question it has to be really rationally related to the government interest that's articulated by the guideline and so they're making a very textualist argument and it doesn't matter whether something takes us back to before whatever it Newsom doesn't answer the question it just says it must be related to legitimate government interest and so we have to decide what is the legitimate government interest under the text and the comment and the guideline right well the comment is part of the guideline is right it's not in conflict with the guideline and here it is not in conflict it actually took great pains to make sure that it did not alter or repeal any portion of the guideline the Commission undertook that responsibility and noted that in its reasons for the amendment and it specifically added that language so I am taking a very textualist position here that that's what the I understand you're taking the position that it because it doesn't have to be after it that that that that opens up the door for the air and that it confirms that the door was opened to interest other than and I understand that that's your argument thank you well it would really be more correct to say the door wasn't closed because this is an amendment that is limiting discretion that had been broader and it is limiting it to the interest in 3e 1.1 pleat period not a or B yes that's right your honor if I could very briefly address the record does support that the defense asked for a variance even if the government didn't give the additional one level they asked the district court to give a variance based upon that one level that was in a and it was raised twice at the sentencing hearing and the judge shot that down so again we don't think that remand is required failure to give a variance is not the same thing as saying that the government we that the judge would give the same sentence regardless of what these sentencing guideline would be you can't say that that that tells you that there's no need to remand because the government the court we wouldn't give that sentence that's that's not we don't have any case that says that that's not my that's not the point that I raise it for your honor I raise it because you had you had asked me about the record and what the record supports for the government's rationale for not giving the last point and if if you read the context of the sentencing hearing including the portion about the one level variance because the government did not move for it all of that goes into answering the question of what the I'm not saying that the fact that the court failed to give the variance means that it's there's no error here or something I'm not taking that position. Thank you. Thank you. Marta. Thank you your honor. I wasn't sure if I had time remaining. The government relies on Newsom but Newsom was a subsection B case it dealt with the exact interests identified in B permitting the government to allocate Before this November 13th amendment had we ever limited government discretion except for unconstitutional arbitrary type reasons? I believe that was the standard was basically broad discretion we believed it to be broad but what the commission has said limits that broad discretion to interest in 3.1 and we disagree about what that phrase means but that's what it does it takes broad discretion and now limits it to whatever those interests are that the sentence is referring to but the government still has discretion within those interests be it only timeliness or be it including something more. That's correct and the commission in doing so said we look back at the protect act and this is what it was about it was about those interests in B it was not about everything else and there's reasons for that. Explain why the commission said that. One is before the protect act switched this from the court to the government there would have been no reason for the court to undertake the subsection A analysis again in subsection B and reconsider those same considerations it had already considered in deciding whether to award the additional one level under B. Now when the protect act took the subsection B inquiry from the court and gave it to the government it didn't change that analysis it didn't say anything about it. What it said was it's switching it for this reason because the government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial. That's the reason the protect act gave that's the reason congress gave for switching it over. It said nothing of the government should also get to reopen and reevaluate the considerations the district courts already made under A. No it was just about the court should defer to the government on whether it avoided preparing for trial. But it doesn't mandate a motion there are other circumstances where the government may be required to do something. Here it doesn't require the government to do anything. It says the district court can grant this extra point but only upon motion of the government and the government has to list A, B and C in this motion. But it doesn't require the government to file it. Your argument now does require it. You're saying as long as the government finds that this guy was timely and saved resources it has no discretion it must file this motion and that's not even in the language of B. It doesn't say it must be filed. No. The government has discretion but it cannot withhold it for reasons not identified in section 3E1.1. We're back to this. Yes. And that's fine. And I mean we just disagree about that and that's fine. I mean you know you've made a very eloquent argument and I appreciate that. I don't know that I gain anything by continuing to thrash over the same sentence when I see it differently than you do and others may disagree. Do you have some other things that you'd like to talk about? Well, I would like to address a point that Judge Haynes made a few times about how the commentary keeps using A and B interchangeably but now we want to divorce them. No, no, not interchangeably. Not at all. They're very specific about A here and B here. That's what I'm saying. In the rest of the comments they talk about A when they mean A. They talk about B when they mean B. That's why I think the absence of B is so telling. Counsel, what were you going to say about it? Well, that's what I was going to say. They separate them quite clearly. Yes, they do. And then that's why the absence of B to me is so startling because elsewhere they do separate them. So did you have a point that's different that you wanted to make about that? Well, I would reiterate then that Note 1 says this is about subsection A. It doesn't say A and B and, in fact, as I mentioned before, it used to say for the provision and it's specifically limited to A. That's one part we'd have to read out in addition to the other part I noted earlier. I see. In my view we're not reading it out because, in my view, what we're doing is we're saying what is the interest in 3E1.1. Interest is acceptance and responsibility. Comment 1 helps us understand that. But go ahead. Finish out what you have to say. Thank you. Well, I guess I'd like to close by saying the government does not have an interest in reopening and undertaking the judicial decision making that was already made under subsection A. I would reiterate that the subsection B inquiry does not come about, as I said before, unless the district court has already gone through those considerations, has already engaged in the judicial decision making, and has already determined that, in fact, the defendant has accepted responsibility and did so sincerely, which is what happened here. The court acknowledged that he relapsed just a month after his release. That was before his plea. And in looking at does that mean his plea really wasn't genuine? Does it mean he really isn't accepting responsibility? And said, on balance, no, it doesn't. I think it would be overly punitive. If he'd returned to drug dealing, it might feel differently. But based on this, and the court's allowed to make that consideration. That's what A is about. The court can weigh those things. But the government does not have an interest and is not empowered to then revisit and reevaluate for itself whether the court was correct under subsection A. Did you have another rebuttal point, or was that it? I had four, but I believe I addressed them all. Let me double check. I believe I said everything I had thought I could do in my short time. Thank you, Your Honors. Thank you, Mr. Funnell. Thank you both. Court will be in recess. That concludes this week's panel argument. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A10707. Public record. Not legal advice.