Legal Case Summary

Okay. First case of the day. United States versus John Doe. May please the court. My name is Tom Livingston and I represent the appellant who pursuant to a motion has been permitted to be referred to as John Doe. That's fine. The court, by way of rebuttal on requesting three minutes of rebuttal. It's grand. Thank you. The crazy part of this appeal is, as you know, Mr. Doe filed a pro-say notice of appeal. As you know, the court granted a 35 B motion. The ordinary process would be in my office, the federal public defenders office in Pittsburgh, to have an appellant lawyer assigned to the case

. As a matter of either goodwill or rotten luck, I was assigned to the case. Part of because Mr. Doe and I have gotten to know each other well and what I was anticipating before the developments relating to Stinson and Johnson was that a day may come when Mr. Doe and I would have a conversation about the lack of merit to his potential appeal issues. The one thing we all cringe about is federal public defenders is ever having to write an ander's brief, conceding that there's no merit to somebody's appeal. Things changed. As you know, the court granted a motion to stay the briefing schedule on the basis of a short sentence in the Stinson opinion. In Stinson, this court recognized the need for resolution of an issue that later came. The issue was one that was foreshadowed but not resolved by a Supreme Court case called the gay. And so when the government consented to the motion to stay and the court granted that motion, we were in a holding pattern. It turned out that a case from our office came before this court and the judge officially writing the opinion called US versus Johnson. Really an opinion

. Thank you. Anyway. The gay was decided one month after the habeas was filed here. Correct, Your Honor. And yet the gay was never raised in the course of any proceedings. I mean, this Mr. Doe could have been Johnson and could have been raised this. But he never did. Well, and only did in connection with a 35 B, which really isn't the vehicle. Well, we're going to talk about the timing of raising it and I'll talk specifically about that moment. From any number of other cases that were on my plate that were approaching sentencing. Issues involving whether things that had been

. Possibly regarded as crimes of violence. Also kinds of crimes of violence,. Pursuing to either a career, or a No70 by the heavier rival show. Most obviously primarily on the contrary, but also on a and Judge Rendell just mentioned. I mean, your brief is very interesting and well-written. But this is the procedural posture here is a rule 35b motion. A lot of, I mean, there's a good argument that can be made anyway that we don't really have, are going to be considering any of that. 35b is a reduction rule based on substantial assistance. Do we need to get into big gay and all that? Judge, as you know, when I wrote the reply brief and cited Cassiano to this court, the argument that you're raising is that a 35b motion or a motion under 5k1.1, which is slightly different in its procedural posture, limits the scope of the review to only the nature of the assistance and the factors identified in 5k1.1. I've cited not just the overriding language of 5k1

.1, which makes that list non-exhaustive, but Cassiano, when I'm talking to esteemed counsel for the other side, the crazy thing that Cassiano is saying is well, you can consider factors other than substantial assistance if they're adverse to the defendant, meaning aggravating factors. Yeah, but essentially 35b is a reduction. Well, whatever factors are considered to reduction of the sentence, here you're really asking for that the sentence be vacated. Well, that we're back to the originating theme of my two brief, which is under 18 United States Code 3742, there are three things going on here. We're reviewing a sentence that if we do the remand, may prove to be an illegal sentence, one that's higher than the guidelines that are contemplated. So when I'm writing up my statement of jurisdiction for this brief for a pellant and the three things in that is the sentence was imposed in violation of law, it's an incorrect application of the guidelines and it's greater than the guideline term. You have a sentence here today of 180 months, a substantial assistance reduction from 262 to 180, but 92 to 115, if this guy's not a career offender, is the sentencing range. But you're asking it to be vacated. You would say that in illegal sentences. My remedy here, Judge, as I repeatedly say, is a summary remand or a full remand for further consideration because we do not have..

. But you want us, we would have to vacate the sentence as illegal if we do, that's your argument. The sentence was illegal and therefore we would vacate it. It's not really a 35-B situation, is it? Well, I don't know whether the words in the order would say we vacate the judgment of sentence, but one of the middle ground alternatives would be to remand, like I said, when I asked for summary remand in my formal motion, the argument was, we now know something we didn't know. If Johnson had been decided differently, and if Johnson simply affirmed the gay, I'm sorry, affirmed Dorsi, then I'm gonna be having my lawyer client call with John Dosey and sir, I don't have anything to talk about on appeal. And then we would have been in a whole different way. It seems like the relief you're seeking is 2255 material, that's not before us, that was... Well, let's talk about the relief we're seeking. Let me just step back if I could just one moment. You know, what is in it, there's a lot of unusual facets to this case. The 35B motion was filed, and it sat for a while, and I've assumed for good reason

. And your 2255 was filed, and then that was withdrawn, and court proceeding on 35B, and its sentence was actually reduced by 80 months, or 60 months. And then the defendant appealed. Okay. Yeah, the sentence was reduced without the gay. Without the gay. But the defendant appealed. The defendant filed an appeal before Johnson. The appeal was filed within 10 days of Johnson being filed. An issue could be raised, it has been raised by the government, but it could be raised, and we have a obligation always raised it as to whether or not this appeal is even properly before our court. Yeah, the relief you're asking before us wasn't sought in the district court. Yeah, so correct. The question is, Judge Shigerra Sondel have questioned whether or not the relief you're asking for is proper, but I guess my question goes to, is the appeal even properly here? Well, the right to appeal from a 35B order is there the right

. Well, if it's denied. Pardon me, but your 35B was granted. Yours was granted. Why do you have to come up with this? Actually, it wasn't there. And that's from the government's own sentence. The government's motion was granted, reducing the sentence, and to the extent that the defendant is aggrieved by the sentence that's less than the reduction that's less than he wanted, he appealed. He's still aggrieved. He is aggrieved. But you're not arguing that the substantial assistance wasn't sufficient. No, no, no. I'm just saying. No, you're arguing that you should have applied to be gay, and that was never argued in the district court

. I'm not saying that, Judge. There would be no cause for me. And this is part of my response to the government's waiver argument. No cause for me in the district court, as counsel for John Doe, to be able to predict the specific terms of what this court's opinion in Johnson is. But the Johnson did. He said, oh, but gay says this. So I'm raising this. And as I said, Doe should have been John. Let's go back. Dorsey said all crimes, all simple assaults are crimes of violence. In simplest terms, Johnson says some are not, and it depends on a set of documents and things that the Supreme Court tells us to look at. But the gay says unless you have a violent felony like a burglary in arson and the litany, unless you have that

. And based on that, Johnson said, Johnson, who's probably sitting in jail, says, wait a minute. Simple assault isn't what the Supreme Court said is required. And I'm saying Mr. Doe could have made that claim as soon as the gay came out, could have said, I'm amending my habeas and relying on the gay because this simple assault is not a violent felony. So I mean, we have, there's case law in other areas that says it was out there to be raised once the gay was correct and in addition. Isn't one of the issues that you, this, our court has not said whether or not be gay and or Johnson is retroactive, correct? Correct. We've looked hard and found nothing to that effect. Other circuits have said they are. So don't you still have, I mean, Mr. Johnson still is serving time, has some time to go. Don't you still have an opportunity? Well, when we've put in the future to be able to raise what you're trying to raise. When we've talked about the necessity of something like what you're mentioning, the two vehicles of seeking a pellet review that we've talked about, this is not me and John Doe, but me and attorneys I work with is the more promising path or the better path to simply wait for the event that this court is now mentioning as a possibility, which is not yet a actuality

. Meaning will a day come when this court or the Supreme Court says that be gay-related analysis extends to cases that predate be gay. So analytically, that would be an alternate way for Mr. Doe to proceed. We're saying that need not occur. And when we talk about comparing the differences in the 35-B process, the 20-25-5 process, one of the things that the Cassiano opinion from this court and another decision recently announced from the ninth circuit analyzes is that, first of all, the ordinary substantial assistance factors are among the range of things that the court considers in deciding A to grant a 35-B motion and B, once the court decides to grant a 35-B motion, a larger range of factors, including aggravating factors against the defendant, meaning how bad is his criminal record, John Doe having a bad criminal record. Negative factors to the government, but mitigating positive factors for Frank Christian include subsequent changes that all the sudden say the law in America says that this poor guy who got 262 months because they thought he was a career fender is no longer a career fender or was never a career fender and we just got it wrong because nobody for saw with the gay was gonna teach. So we're talking equitable remedies here and splitting hairs about the fine points between 35-B process and 20-25-5 process. I'm talking about a guy who deserves to be 92 to 115 months would be a non-career fender guideline range. Judge, one thing I want to put on the record that's not so clear from the transcript of the hearing. When I stood up in court and made my little song and dance about this guy not getting effective assistance counsel from his prior lawyer because he could have raised the motion under 401.3 in shoot. That was something that was discussed in chambers with the judge. It was only driven by the need to give this guy a record to take back to his B.O.P. institution if he would get a reduction. So the court knew, the government knew I was not trying to get that remedy under that basis. That was only for give this guy some papers that he could safely go back and explain what knock on wood we were hoping for which is the reduction that he got. All right, so we will hear from you on your bottle. Great, thank you. May it please the court Rebecca Haywood here on behalf of the United States. And it's a witness position that we are here on a 35 B, not a habeas. The habeas was withdrawn. In order to proceed on a habeas before this court you would need for jurisdiction to exist

. It was only driven by the need to give this guy a record to take back to his B.O.P. institution if he would get a reduction. So the court knew, the government knew I was not trying to get that remedy under that basis. That was only for give this guy some papers that he could safely go back and explain what knock on wood we were hoping for which is the reduction that he got. All right, so we will hear from you on your bottle. Great, thank you. May it please the court Rebecca Haywood here on behalf of the United States. And it's a witness position that we are here on a 35 B, not a habeas. The habeas was withdrawn. In order to proceed on a habeas before this court you would need for jurisdiction to exist. You would need to obtain a certificate of availability. None of that was done. Rule 35 B is a very limited, it's not a recent thing. It's a very limited circumstance where there's a modification to account for substantial assistance. It's not a complete recentencing. And the Supreme Court decision in Dylan makes that expressly clear. Dylan in Dylan, the Supreme Court dealt with 3582 C2 and an amendment to the Cratican guidelines. But the Supreme Court in Dylan analogized to 35 B, noting that they were both just modifications of sentencing and not complete recentencing. And in Dylan, the Supreme Court actually rejected an attempt to go back and reopen the guidelines calculation, which is exactly what Mr. Doe was attempting to do here. He's attempting to reopen the original guidelines calculation. And there's simply no basis to do that

. You would need to obtain a certificate of availability. None of that was done. Rule 35 B is a very limited, it's not a recent thing. It's a very limited circumstance where there's a modification to account for substantial assistance. It's not a complete recentencing. And the Supreme Court decision in Dylan makes that expressly clear. Dylan in Dylan, the Supreme Court dealt with 3582 C2 and an amendment to the Cratican guidelines. But the Supreme Court in Dylan analogized to 35 B, noting that they were both just modifications of sentencing and not complete recentencing. And in Dylan, the Supreme Court actually rejected an attempt to go back and reopen the guidelines calculation, which is exactly what Mr. Doe was attempting to do here. He's attempting to reopen the original guidelines calculation. And there's simply no basis to do that. And again, the gay existed a year in a day before the hearing that occurred in this case. So the gay was out there. Mr. Doe could have made the argument that Mr. Johnson made. I'll note that I was the appellate attorney for the government on the Johnson case. And you were arguing the gay didn't apply. And that was the point. Initially, that was the position of the office. Was it not? It was the position of the office. I was putting a service. So why should Mr

. And again, the gay existed a year in a day before the hearing that occurred in this case. So the gay was out there. Mr. Doe could have made the argument that Mr. Johnson made. I'll note that I was the appellate attorney for the government on the Johnson case. And you were arguing the gay didn't apply. And that was the point. Initially, that was the position of the office. Was it not? It was the position of the office. I was putting a service. So why should Mr. Doe be on notice that your position was in error? Well, the case thought the decisions out there were being, the issue was being argued by defendants. The gay is what is the constitutional, the principle set forth in the gay were the principles that Mr. Doe was relying upon in this case. Johnson is just an interpretation of this room courts decision in the gay. And I would also note that with regard to the issue of jurisdiction, we presented it as a question of waiver because the issue of the 2255 was actually not, is not before this court. It was withdrawn. You could also address it by way of jurisdiction. There's no jurisdiction here because it's an attempt to deal with the habeas when there was really, there was no COA granted for habeas. You satisfy that we have jurisdiction to hear the appeal? No, Your Honor, to the extent that it's been presented here today, it wasn't clear. It is satisfied that the defendant had a right to appeal the decision of the district court on the, which granted, which in effect granted, the 35B. Well, there, and for purposes of this case, we do not believe there was jurisdiction to proceed, but in some cases there are. As we noted in our jurisdictional statement, to the extent that you're a 35B, they're talking about the extent of a departure or the extent of a reduction under this court's decision in McKnight, clearly there is no jurisdiction to review that

. Doe be on notice that your position was in error? Well, the case thought the decisions out there were being, the issue was being argued by defendants. The gay is what is the constitutional, the principle set forth in the gay were the principles that Mr. Doe was relying upon in this case. Johnson is just an interpretation of this room courts decision in the gay. And I would also note that with regard to the issue of jurisdiction, we presented it as a question of waiver because the issue of the 2255 was actually not, is not before this court. It was withdrawn. You could also address it by way of jurisdiction. There's no jurisdiction here because it's an attempt to deal with the habeas when there was really, there was no COA granted for habeas. You satisfy that we have jurisdiction to hear the appeal? No, Your Honor, to the extent that it's been presented here today, it wasn't clear. It is satisfied that the defendant had a right to appeal the decision of the district court on the, which granted, which in effect granted, the 35B. Well, there, and for purposes of this case, we do not believe there was jurisdiction to proceed, but in some cases there are. As we noted in our jurisdictional statement, to the extent that you're a 35B, they're talking about the extent of a departure or the extent of a reduction under this court's decision in McKnight, clearly there is no jurisdiction to review that. So I can understand, if he came to this court arguing, strictly rule 35B, there would be jurisdiction, right? That's correct. I think your argument is more that his argument is a little misguided because it doesn't go toward rule 35B instead, it goes to the 225, which is not for us. That's right, to accent the court would have considered an improper purpose or would have said something that would have been illegal at the 35B proceeding, but this appeal has nothing to do with what the judge did. And in fact, Mr. Doe is not contending that the judge did anything wrong. And Mr. Doe did not even raise the issue of the game before the district court at the 35B hearing. It proceeded, there was actually appending 2255 at the date of the hearing, but Mr. Doe decided to withdraw that. And so we're left with the procedural posture of the judge actually granting a six and a half year reduction in his sentence, and the appeal was taken from that order. I just quickly read your jurisdictional statement. You said to the extent that he's contesting the amount of the decrease that we do not have jurisdiction

. So I can understand, if he came to this court arguing, strictly rule 35B, there would be jurisdiction, right? That's correct. I think your argument is more that his argument is a little misguided because it doesn't go toward rule 35B instead, it goes to the 225, which is not for us. That's right, to accent the court would have considered an improper purpose or would have said something that would have been illegal at the 35B proceeding, but this appeal has nothing to do with what the judge did. And in fact, Mr. Doe is not contending that the judge did anything wrong. And Mr. Doe did not even raise the issue of the game before the district court at the 35B hearing. It proceeded, there was actually appending 2255 at the date of the hearing, but Mr. Doe decided to withdraw that. And so we're left with the procedural posture of the judge actually granting a six and a half year reduction in his sentence, and the appeal was taken from that order. I just quickly read your jurisdictional statement. You said to the extent that he's contesting the amount of the decrease that we do not have jurisdiction. That's correct. As a discretionary. It's a discretionary. The amount of it is discretionary under night, but to the extent the court considered something illegal, his race or something improper. That would make, that would have made the 35B proceeding illegal, then there would be jurisdiction to consider that. I'd also note that, you know, will 35B and the jurisdictional statement 3742 has to be read in connection with 3582 also. 3582, the statutory text there makes very clear that the, that in the interest of finality of sentences, there are only very limited circumstances which a sentence may be reopened. A 35B is one, but, you know, again, this is attempt to collaterally attack his sentence through a rule 45B proceeding. Are there any questions for the questions? No, thank you very much. What about, I do have a question. We haven't ruled on, our court has not ruled on VGAs retroactivity, under, under retroactive nature of VGAs. Is it possible that Mr

. That's correct. As a discretionary. It's a discretionary. The amount of it is discretionary under night, but to the extent the court considered something illegal, his race or something improper. That would make, that would have made the 35B proceeding illegal, then there would be jurisdiction to consider that. I'd also note that, you know, will 35B and the jurisdictional statement 3742 has to be read in connection with 3582 also. 3582, the statutory text there makes very clear that the, that in the interest of finality of sentences, there are only very limited circumstances which a sentence may be reopened. A 35B is one, but, you know, again, this is attempt to collaterally attack his sentence through a rule 45B proceeding. Are there any questions for the questions? No, thank you very much. What about, I do have a question. We haven't ruled on, our court has not ruled on VGAs retroactivity, under, under retroactive nature of VGAs. Is it possible that Mr. Doe could be back here? Your Honor, no. We, and that's another thing. Another reason why it's clear that Mr. Doe's arguments here today are not proper. Regarding to a habeas, there are numerous arguments with regard to Mr. Doe, particularly, that would prevent a habeas such as procedural default, the government's position with regard to the career offender as opposed to the ACCA is that, when you're talking about a career offender guidelines, sentence, that because it doesn't, the sentence actually is beneath a statutory maximum, that these claims are guidelines claims, like this court's decision in, in Shapiro, I believe, in which this court stated that guidelines, misapplication of the guidelines, do not rise to a constitutional claim or a complete miscarriage of justice, but if it had been an ACCA claim that actually raised the statutory minimum, the government's position is, those claims potentially depending on, depending on different factors, including whether procedural default, those cases could proceed. But I don't. The cases in the pipeline. Yes, there are, right now we have sunbear from the ACIRCAT, which is a career offender case, adopting the position of the government. You also have Gilbert, that sunbear was on-bunk, as well as Gilbert from the 11th Circuit on-bunk, adopting the government's position. There was a recent decision, I think, it's December 6th from the 7th Circuit, that actually held contrary to the government's position. But it's in terms of Mr

. Doe could be back here? Your Honor, no. We, and that's another thing. Another reason why it's clear that Mr. Doe's arguments here today are not proper. Regarding to a habeas, there are numerous arguments with regard to Mr. Doe, particularly, that would prevent a habeas such as procedural default, the government's position with regard to the career offender as opposed to the ACCA is that, when you're talking about a career offender guidelines, sentence, that because it doesn't, the sentence actually is beneath a statutory maximum, that these claims are guidelines claims, like this court's decision in, in Shapiro, I believe, in which this court stated that guidelines, misapplication of the guidelines, do not rise to a constitutional claim or a complete miscarriage of justice, but if it had been an ACCA claim that actually raised the statutory minimum, the government's position is, those claims potentially depending on, depending on different factors, including whether procedural default, those cases could proceed. But I don't. The cases in the pipeline. Yes, there are, right now we have sunbear from the ACIRCAT, which is a career offender case, adopting the position of the government. You also have Gilbert, that sunbear was on-bunk, as well as Gilbert from the 11th Circuit on-bunk, adopting the government's position. There was a recent decision, I think, it's December 6th from the 7th Circuit, that actually held contrary to the government's position. But it's in terms of Mr. Doe, because he would also be at a second or successive, because he withdrew his first, he's in it, also in a different position, and you also have the time in this issue. The gay was decided in 2008, I think, April 15th, 2008, and I'd also note that you have Supreme Court decision and Sykes, which actually has clarified the gay, to some extent. Sykes is a case where it dealt with fleeing a looting statute, I believe in Indiana, and it talked about the gay's purposeful analysis, indicating that that might not be the case. So the government's going to have to evaluate Sykes and light it as well as the gay and make the arguments accordingly. But again, it's our position in this case that, procedurally, Mr. Doe is not, this is not the appropriate forum for him to be making these claims. And one other thing I'd like to add, though, too, is in Johnson, I think, including the government sometimes, everyone talks about Johnson in the government's concession. This court in Johnson based its decision based on the government's concession, and footnote 13, this court noted that it wasn't actually finding the simple assault wasn't a crime of violence, it was making that finding based on the government's concession. And in light of Sykes, you know, the government may change its position on that in the future, it hasn't yet. Thank you. Thank you. Yes, you're on a four points in rebuttal

. Doe, because he would also be at a second or successive, because he withdrew his first, he's in it, also in a different position, and you also have the time in this issue. The gay was decided in 2008, I think, April 15th, 2008, and I'd also note that you have Supreme Court decision and Sykes, which actually has clarified the gay, to some extent. Sykes is a case where it dealt with fleeing a looting statute, I believe in Indiana, and it talked about the gay's purposeful analysis, indicating that that might not be the case. So the government's going to have to evaluate Sykes and light it as well as the gay and make the arguments accordingly. But again, it's our position in this case that, procedurally, Mr. Doe is not, this is not the appropriate forum for him to be making these claims. And one other thing I'd like to add, though, too, is in Johnson, I think, including the government sometimes, everyone talks about Johnson in the government's concession. This court in Johnson based its decision based on the government's concession, and footnote 13, this court noted that it wasn't actually finding the simple assault wasn't a crime of violence, it was making that finding based on the government's concession. And in light of Sykes, you know, the government may change its position on that in the future, it hasn't yet. Thank you. Thank you. Yes, you're on a four points in rebuttal. The first, the determination of whether a simple assault is a crime of violence is a function of reviewing certain relevant state court documents, those documents, if they do not rule out a potential state of mind, the state of mind of recklessness, then the potential state of mind of recklessness is the legal cause under principles flowing from Bege about why a particular simple assault may not be a crime of violence. That's why we're asking for a remand. We don't have those documents in the appellate record. Second, the seven-circuit case that the government cites as the one that does anticipate that, or does rule that subsequent to Bege decision applying Bege principles to a state of fence extends retroactively, not just to arm career criminal definition of violent felony, but career-offender definition of crime of violence. That's the Welsh case. The one that, welches is, I believe, mentioned in that one, that's in the government's footnote, but one that came since is something, I'll give you the site for a right of 28J on that one. When I mentioned before that another circuit has also joined the third circuit in Casiano, that circuit is the ninth. I'll provide you with that site in a 28J letter also. Finally, the one thing that stands as the sort of unifying theme to Mr. Doe's position is 3742, which says that if this sentence is based on what we don't right now have, simple assault or two, one or both of which is not a crime of violence, then it's an illegal sentence and an incorrect application of the guidelines, and the contingencies about whether Mr. Doe can proceed by 2255, one of those alternative things is he would proceed maybe by second petition, but the withdrawal, if you note from that record, there was a little moment when we went off the record, Mr. Doe and I before he formally withdrew his 2255, that benefit of withdrawing it was in case of some contingency that I couldn't foresee, the one contingency that is sort of debatable as something possible is whether either the Supreme Court would rule, the gay principles are retroactive, or this court would rule that principles are retroactive

. So we're saying this is the time it's available now, it's lawfully permissible now, do the right thing now rather than iffy and waity and seeing later. Thank you. All right, thank you very much. In case we'll argue we'll take it under advisement