Legal Case Summary

State's versus Hernandez Gonzalez. Councilor, would you like to reserve some fire for a vote? I would, Your Honor. I'd like to reserve two minutes for a vote, please. Good. Good morning. My name is Richard Zach, and I represent the government in this case. In this case, the district court failed to consider a five of a criminal with fire convictions, as part of his criminal history in calculating his sentence. All five of those convictions were within 10 years of relevant conduct to the offensive conviction, namely, the defendants being found in the United States in August of 2005. And what the district court's error had the effect of doing was reducing the defendant's criminal history score from a five to a three in reducing his guideline range from 46 to 46 to 506. 47 months from 70 to 87 months. The district court's finding and legal conclusion is that odds with six other circuits that have decided. But the real question is, is it at odds with the third circuit, right? That is the question you're right. I don't know the answer, but I'm quite sympathetic to the district judge. I mean, it's a question of how you read the third circuit precedent. I guess that's usually here, right? If you read those two cases carefully, the D-Santillo case, as well as the Lenin case, let me address D-Santillo first, that case is clearly not applicable to this situation. First of all, in this case, this case is a relevant conduct case

. It deals strictly with the application of the sentencing guidelines and the definition of relevant conduct under 1B1.3. D-Santillo dealt only with whether a crime is a continuing offense for purposes of the statute of limitations and whether that, when the statute of limitations begins to work. The definition of relevant conduct involves a time period, right? Well, you're on what the definition is? So in that sense, at least, it's somewhat. The question is, is it close enough to the limitations question to be binding? Yeah. What relevant conduct says is all conduct that is in preparation for the offense or committed during the commission of the offense must be considered in order to determine the date of the commencement of the offense for determining a criminal history. What D-Santillo did not consider because the guidelines were... I thought we were talking about the prior convictions. We are. And the question is, how far can you vote for a criminal? That is correct. And what the guidelines require is to..

. The first thing you have to do to determine whether something is relevant in conduct is when the instant offense commenced. Right. And where relevant conduct starts the clock ticking? Is there where relevant conduct started? It's where the relevant conduct to that offense, how far back that goes. In your arm, there have been six circuits that have considered this issue. It would have held that the reentry, the defense reentry into the United States illegally starts the best relevant conduct to the defense being found in. Now let me go back to D-Santillo. As I said, that was not a relevant conduct case. And what that case addressed was a situation very different from this situation. A situation where a defendant presents himself at a recognized point of entry using his real name reenters the United States illegally and is charged with reentering illegal. A different offense than the defendant in this case is charged with and a different set of facts. That case is fully applicable for that reason because it did not address found in offense. It addressed an illegal reentry offense and the issue there was whether the clock starts to run for statute limitations purposes upon the defendant's reentry. In fact, in D-Santillo, the court says that that situation is in marked contrast to when a defendant enters basically sneaks into the country, which is what the defendant Hernandez Gonzales did. In this case, now the other case, Judge Tashima, I believe that you were referring to is the Lennon case, which is also in applicable here. Because a careful reading of that case discloses that the court decided simply that even if you accept what the defendant advocated for, that it would affirm the sentence because any heir was harmless because even if you followed the defendant or revert the defendant, the defendant would have received the same sentence

. So it did not reach the issue. Accordingly, everything it said about D-Santillo was dictum because it was not necessary to the opinion and the panel in that case, I believe in accurately stated, incorrectly stated that D-Santillo dealt with a found-in situation similar to the facts before the court in Lennon, which was not the case. In this case, the Lennon court, or the D-Santillo case, as I said, dealt only with that, a legal reentry. And there's a third-circuit case before Lennon, the Dixon case, where a defendant tried to argue that essentially no violations of Section 1326, the legal reentry statute, are continuing offenses. And the third-circuit, the panel in that case, and the Dixon case, rejected that argument and said basically that D-Santillo dealt only with the reentry offense involved in that situation and did not make any finding with respect to whether a found-in offense is a continuing offense. And he said, so on another topic, we have here is the Presentance Report, which is, I think, somewhat ambiguous, but it does mention, look, everyone agrees, going on a timeline, we've got January 1st to 2000, and then we've got the dating picked up. The Presentance Report appears to say, two times, or then that particular time period, he left the country again, does not mean there are three chargeable offenses there, if that's to be believed. So, you're on what your question illustrates is why this case must be remanded, and it must be remanded because relevant conduct is a factual determination. And the Court did not have the opportunity to decide whether those two alleged returns to Mexico would have cut off the relevant conduct in this case. The Court did not do that because the defendant took the opposite position as he takes now in the district court. The defendant agreed that he had reentered the United States on January 1st, 2000, and repeatedly, if you look at the Sensing here in transcript, there was no mention whatsoever of those two returns in defense counsel and the government, and everybody agreed that the return occurred in January of 2000. Now, let me just if you can follow me on this. So, you've got January 1st, 2000, and you've got what he's picked up in August of 2005. It seems to me that your indictment starts at the 2005 date and says he arrived in the country at some other point. So, is it that date that the time most recent to 2005, what you charged, and isn't that the date that's going to really tell us whether that relevant conduct, whether those other offenses are going to be part of his criminal history? The government's position is with respect to determining what is relevant conduct in this case

. The district court has to make a factual finding as to what is relevant conduct. Now, the district court, what the district court held was under no circumstances that exist today, could an illegal reentry be relevant conduct to being found in. The court said that is not possible under decent pillow and let it. Basically holding a black letter, a dark rule that there is no chance that a reentry can be executed. Well, let's see if we go the other way. Let's assume then. Then it's got to be sent back for fact finding as to when he reentered the last time. The one you charged. Yes, Ron. And what we would argue is that the district court has to make a factual finding. Is there a difference between someone who comes to the United States in January of 2000 and comes to live here to reside here illegally after having been deported following his sexual assault conviction? Potentially possibly leaves the country twice for brief visits to his parents and comes back to his residence in Philadelphia area. Is that initial illegal reentry? Which the defendant is the one who identified? That's in January 1st, 2000. Yes, he said that's when I came back to the United States. The factual question for the district court would be, in which the district court did not use this analysis, would be, do those two visits? Do they break the relevant conduct chain? And that analysis did not occur. What occurred here was the district court said, look, there aren't any circumstances where any entry would ever be relevant conduct to the United States

. And the cases that were lied on, as I've said, are not applicable. They simply do not address the relevant conduct issue. And if you look at Lenin, I believe, even mentioned the term relevant conduct. The other circuits that have actually decided this issue, and there are six, the fifth, the 11th, the 8th, 7th, 9th, DZ, and fifth circuits have all held... I'm sorry, I'm still confused by your continued reference to relevant conduct. Are we talking about criminal history? Yes, Your Honor, and you're out of that. Yes, put the guideline to it that computed from defendant's commencement of the instant offense, not relevant conduct. And you're out of that. Instant offense. If you look at application note 8, section 4A1.2, and 4A1.2 is the criminal history calculations section of the guideline. Application note 8 says, commencement of the instant offense includes relevant conduct, which means that you go back then to 1P1

.3 to look to see what is relevant conduct to the instant offense. And that's what you use to calculate how far back you go to the note point. Application note 8, section 4A1.2. And if you... Those, each of those cases, those circuits that I mentioned, and that are cited in my brief, discuss this very issue. They discuss relevant conduct and how you determine the commencement of the instant offense. And they talk about how the illegal reentry, the actual illegal reentry, has to be considered by the district court, because the being found in offense could not have occurred without the illegal reentry. And in fact, the fifth circuit addresses the very issue, Your Honor, that Judge Shigaris raised. It talks about someone who repeatedly reenters the United States. In that case, in the fifth circuit case, the Alvarado case, the defendant had entered left and entered and left a number of times and had been prosecuted for those, I think there were five reentry and four prosecutions. And then had come back to the United States and left a number of times and came back and was found in the United States, finally prosecuted for that. And what the fifth circuit said was that the only time going and coming breaks up the relevant conduct chain is when the defendant is prosecuted, arrested and prosecuted in between the entries

. The fifth circuit held that you could have a situation. We have some entries and leaving and being found in at a later time. And all that is relevant conduct for purposes of determining criminal history. Now, I see my light is on and I will save my time for a while. Thank you, Professor. May I please the court. My name is David McCallden. I'm the attorney, arguing on behalf of Night Dilleno, her name is Gonzalez. The criminal history was correctly calculated. This court does not have to reach the D. Santillo lenient issue. This court can conclude even based on the government's argument that it was correctly calculated because the government never established when the most recent reentry was or how long the visits to Mexico were. And those were undisputed. They're stated in the pre-sentence report in paragraph 38. It's completely undisputed that there were at these two visits back to Mexico

. So the government simply hasn't met its burden even under its argument of showing that the most recent reentry was before 2003 or that the prior reentry should somehow count as relevant conduct. Plus the government never rejected the pre-sentence report either, right? That's correct. They never rejected the pre-sentence report and then stated very clearly in paragraph 38. So this court, even though the district court did not resolve the issue on that ground, this court is free to resolve the issue on any ground in the firm in the district court. So I think it's crystal clear based on the record that even the government's argument would not be supported. It isn't true though, Councillor, that there's a discrepancy. It appeared to me that the parties were like planes flying different altitudes. That there was an assumption that this stipulated date of January 1 was stipulated, but then later your argument is, well now it wasn't. We've got these two reentry. What troubles me is there's no real record. I shouldn't say no real record. If you're not any findings, it doesn't appear to be that this issue was joined the way it should have been joined below to give the district judge an opportunity to make findings of fact as to exactly what the appropriate date was. Well, it's correct that the district court did not make those findings and that's because the district court resolved the issue based on the Decentillo and Lane principal that found it is not a continuing offense. And she marked the critical time as being when the founding actually took place in 2004. So she never reached the issue of what the most recent reentry was

. If we clarify the law, and when you agree that then remin might be a good idea to have this clarified, to have some fact-finding in this area, I would certainly not object to a re-nan on that issue, your honor, as well as on the second issue. Well, in other words, let me ask it for the question along the same lines. In other words, if we were to conclude that the law, the case law and all the other circuits, right? Which Mr. Black mentioned is correct on this issue. Then this sentence is erroneous, isn't it? This panel cannot reverse a prior panel decision. And I would, one way I said, if we conclude that all the other circuits are, well, then we had one more qualified. All the other circuits are correct on this issue. And there's no case in this circuit that directly addresses this issue, then the sentence is erroneous, isn't it? Legally, as a matter of law, we'd have to vacate and remin. No, it's not erroneous because this court can affirm on any ground, even a ground that the district court did not reach. And the factual ground this district court can affirm on is the fact that the government never established that the most recent reentry prior to being found in, occurred in 2003 or earlier. And that's a predicate, that's a necessary predicate for their argument in order for them to succeed in showing that the sentence was erroneous. If they can't show that, they can't show error in this court should affirm. And that's why I argue that this court doesn't have to reach the decentillo-linen issue. This court can simply look at the fact that, as Your Honor has stated, the government never objected to the pre-settlement report, never objected to the clear statement in paragraph 38 that there are at least two visits back to Mexico, where Ms. Jernin and Ms

. Gonzalez's parents were living. Where does it say they were in Mexico? It says that they were residing in Mexico. Now, the government does. How do we know those visits didn't occur in Florida? Well, we have to give a common sense reading to this Your Honor. If we read this in context, there is no other reasonable interpretation of this. We have his parents, whose mother is a housewife and his father is a retired farmer. Quotinquot, they still reside in Mexico. Next sentence. The very next sentence. What paragraph are you looking at? I'm looking at page 8 of the pre-settlement report. This is paragraph 38. You're going to paragraph 38. And it's the last two sentences that are critical here. The government is trying to force them in a way that just doesn't make sense. The last sentence, then, says he said that he has maintained regular contact with his parents by telephone. And he visited them on at least two occasions since he illegally re-entered the United States after his deportation. If he is visiting them and they reside in Mexico, obviously the visits took place in Mexico. That's the only common sense interpretation of this pre-settlement report. It doesn't mean anything else. It may be the most likely interpretation, the most plausible interpretation. But what's the harm in requiring the district judge to join the issue and make factual findings on this? Again, these facts seem to be so critical to both of your respective arguments. Why not have a full hearing on the record and give the district judge a chance to make findings susceptible to the review by this court? I would have no objection to that. I certainly understand that the record print is not as clear as we would like, because the district court ruled on alternative grounds. If the court would like the district court to rule expressly on these grounds and decide the factual issue, I think a re-man would be appropriate. I would not object to that. I would also note that that would also give the government a chance to address the fast track issue, which I think has become refined in light of this court's decision in Vargas. Well, it's not for close because of Vargas? Vargas expressly limited is ruling to the conclusion that fast track disparity is not on warranted disparity under 3553A6. Now, that ruling is parallel to ruling of this court in the Parker case, where the court addressed co-defendant disparity. And the court, likewise, said co-defendant disparity is not on warranted disparity under A6, but then went on to state that, but the court can consider co-defendant disparity in sentencing under the other factors that exist in 3553A. Okay, indeed Vargas cites to Parker, and I believe it's footnote 11 in Vargas

. And he visited them on at least two occasions since he illegally re-entered the United States after his deportation. If he is visiting them and they reside in Mexico, obviously the visits took place in Mexico. That's the only common sense interpretation of this pre-settlement report. It doesn't mean anything else. It may be the most likely interpretation, the most plausible interpretation. But what's the harm in requiring the district judge to join the issue and make factual findings on this? Again, these facts seem to be so critical to both of your respective arguments. Why not have a full hearing on the record and give the district judge a chance to make findings susceptible to the review by this court? I would have no objection to that. I certainly understand that the record print is not as clear as we would like, because the district court ruled on alternative grounds. If the court would like the district court to rule expressly on these grounds and decide the factual issue, I think a re-man would be appropriate. I would not object to that. I would also note that that would also give the government a chance to address the fast track issue, which I think has become refined in light of this court's decision in Vargas. Well, it's not for close because of Vargas? Vargas expressly limited is ruling to the conclusion that fast track disparity is not on warranted disparity under 3553A6. Now, that ruling is parallel to ruling of this court in the Parker case, where the court addressed co-defendant disparity. And the court, likewise, said co-defendant disparity is not on warranted disparity under A6, but then went on to state that, but the court can consider co-defendant disparity in sentencing under the other factors that exist in 3553A. Okay, indeed Vargas cites to Parker, and I believe it's footnote 11 in Vargas. So Vargas has limited its hold into that specific holding as Judge Ambrose stated in his concurrence in the denial of on-bock review in Vargas. So if we read Vargas together with Ambrose concurrence together with this court's decision in Parker, we can see that Vargas is limited. Now where the district court made its mistake was she was correct in saying that, okay, I can't consider this as unwarranted disparity, but she went to step further and said, and I can't consider it as any basis for sentencing outside the guideline range. And in doing that, she committed broker error because she said, this is a factor I really want to consider. I am concerned about the fact that there are defendants, and exactly this gentleman's position who are getting much lesser sentences. And I want to consider that, but I can legally only consider that in sentencing within the guideline box. She felt a self-bossed in by that, that is broker error. That is Gunter error. Gunter says that in step three, the guidelines are advisory. At that point, the sentences, the guidelines are considered as one factor, the court can consider all other factors. I think you're almost saying that that dissent in Vargas doesn't mean what it says, and I'm going to quote it. Today we followed in the summary circuit. Today we hold the district court refusal to adjust dissent to compensate for the absence of a fast track program does not make a sense in reason why. It's pretty broad isn't it? Your Honor, if you want dealing with that factual situation, it's not that she did not want to consider the factor. That ruling is if we look at the exact language in Vargas, it's saying that it's limited to 3553A6, which requires district courts to consider disparities

. So Vargas has limited its hold into that specific holding as Judge Ambrose stated in his concurrence in the denial of on-bock review in Vargas. So if we read Vargas together with Ambrose concurrence together with this court's decision in Parker, we can see that Vargas is limited. Now where the district court made its mistake was she was correct in saying that, okay, I can't consider this as unwarranted disparity, but she went to step further and said, and I can't consider it as any basis for sentencing outside the guideline range. And in doing that, she committed broker error because she said, this is a factor I really want to consider. I am concerned about the fact that there are defendants, and exactly this gentleman's position who are getting much lesser sentences. And I want to consider that, but I can legally only consider that in sentencing within the guideline box. She felt a self-bossed in by that, that is broker error. That is Gunter error. Gunter says that in step three, the guidelines are advisory. At that point, the sentences, the guidelines are considered as one factor, the court can consider all other factors. I think you're almost saying that that dissent in Vargas doesn't mean what it says, and I'm going to quote it. Today we followed in the summary circuit. Today we hold the district court refusal to adjust dissent to compensate for the absence of a fast track program does not make a sense in reason why. It's pretty broad isn't it? Your Honor, if you want dealing with that factual situation, it's not that she did not want to consider the factor. That ruling is if we look at the exact language in Vargas, it's saying that it's limited to 3553A6, which requires district courts to consider disparities. We hold the disparity between fast track and non-fast track districts is authorized by Congress and hence is warranted. The whole thing is entirely limited to A6. It will be a lot harder because the next step is in addition, we agree with the district court that on the 3553A6 claim. That's an addition. See that? I'm just looking for exactly where you are, Your Honor. I'll just come on. I'm under right. At the bottom of the page 9.9, Karen, over to page 100. Today we follow the second one for the circuits. In addition, we agree with the district court when addressing Vargas says 3553A6 claim. That's in addition. You see, it's going beyond that preceding sentence. It's not limited to 3553A6 away. I read it

. We hold the disparity between fast track and non-fast track districts is authorized by Congress and hence is warranted. The whole thing is entirely limited to A6. It will be a lot harder because the next step is in addition, we agree with the district court that on the 3553A6 claim. That's an addition. See that? I'm just looking for exactly where you are, Your Honor. I'll just come on. I'm under right. At the bottom of the page 9.9, Karen, over to page 100. Today we follow the second one for the circuits. In addition, we agree with the district court when addressing Vargas says 3553A6 claim. That's in addition. You see, it's going beyond that preceding sentence. It's not limited to 3553A6 away. I read it. Well, Your Honor, then it would be a violation. I think that's an overly broad reading of Vargas. I think that that would be inconsistently parker because in parker, this court made clear the same point we read. In regard to codifended disparity, that that is not unwarranted disparity. This court in Vargas' science department and Vargas stands for the principal that codifended disparity can be considered under one of the other factors. Likewise, fans track disparity. Although it's not unwarranted disparity for purposes of A6, it can be considered under one of the other factors. For example, it can be considered under the factors, the parsimony provision, whether or not a sentence of 30 months would be sufficient but not greater than necessary to meet the purposes of sentence. It's clearly relevant to that. And nothing in Vargas addresses that. Nothing in Vargas bars the district court from going on to address that. I just don't understand, Counsel, how you claim that the Judge committed poker or gunther error, which she specifically, at page 149 of the appendix, noted that the guidelines are advised. And it seemed to me, from my reading of the record, that although she couldn't make a guideline adjustment to your client's range based upon your fast track argument, as I recall, she put them at the bottom of the range and one of the reasons she put them at the bottom of the range was because she considered that as she would put it into the mix as one of the 3553A factors that she ought to consider. But she only felt free to do that within the guideline range. So on the facts, where should say that? Where does she say, I must impose a sentence within the guideline range

. Well, Your Honor, then it would be a violation. I think that's an overly broad reading of Vargas. I think that that would be inconsistently parker because in parker, this court made clear the same point we read. In regard to codifended disparity, that that is not unwarranted disparity. This court in Vargas' science department and Vargas stands for the principal that codifended disparity can be considered under one of the other factors. Likewise, fans track disparity. Although it's not unwarranted disparity for purposes of A6, it can be considered under one of the other factors. For example, it can be considered under the factors, the parsimony provision, whether or not a sentence of 30 months would be sufficient but not greater than necessary to meet the purposes of sentence. It's clearly relevant to that. And nothing in Vargas addresses that. Nothing in Vargas bars the district court from going on to address that. I just don't understand, Counsel, how you claim that the Judge committed poker or gunther error, which she specifically, at page 149 of the appendix, noted that the guidelines are advised. And it seemed to me, from my reading of the record, that although she couldn't make a guideline adjustment to your client's range based upon your fast track argument, as I recall, she put them at the bottom of the range and one of the reasons she put them at the bottom of the range was because she considered that as she would put it into the mix as one of the 3553A factors that she ought to consider. But she only felt free to do that within the guideline range. So on the facts, where should say that? Where does she say, I must impose a sentence within the guideline range. She said that page 149, the third advisory. That's a general statement saying that the third advisory. Well, the specific statement on the, as to the fast track issue is on page 147, at the very bottom, she says, I'm just not persuaded as a legal matter, but that's the kind of disparity that's meant by 3553A. And she's correct on that part under Vargas. I'll concede that. That's correct on the Vargas. But the next part of the sentence is, otherwise should consider it, at least in a sense of departing from the guidelines. That's where she has committed a book or error because she's saying that on the fast track issue, I can only consider that in sentencing within the guidelines. As a departure. But that doesn't mean she can't do a variance. This was before the circuit had to distinguish between departures and variances. I agree with that, but she would not be the only judge within the circuit to appreciate the important distinction between a departure and a variance before this court articulated in written opinion. But we know that she's using departure in the broad sense because then on page 153, she makes her point clear. She says, but I'm going to consider it, and that's the fast track issue. When I sentence him within the guideline range, she's already said, I can't consider it in sentencing outside the guideline range

. She said that page 149, the third advisory. That's a general statement saying that the third advisory. Well, the specific statement on the, as to the fast track issue is on page 147, at the very bottom, she says, I'm just not persuaded as a legal matter, but that's the kind of disparity that's meant by 3553A. And she's correct on that part under Vargas. I'll concede that. That's correct on the Vargas. But the next part of the sentence is, otherwise should consider it, at least in a sense of departing from the guidelines. That's where she has committed a book or error because she's saying that on the fast track issue, I can only consider that in sentencing within the guidelines. As a departure. But that doesn't mean she can't do a variance. This was before the circuit had to distinguish between departures and variances. I agree with that, but she would not be the only judge within the circuit to appreciate the important distinction between a departure and a variance before this court articulated in written opinion. But we know that she's using departure in the broad sense because then on page 153, she makes her point clear. She says, but I'm going to consider it, and that's the fast track issue. When I sentence him within the guideline range, she's already said, I can't consider it in sentencing outside the guideline range. But I am going to consider it when I sentence within the guideline range because I am concerned, as I said, that we have people who may be in exactly this gentleman's position getting in much less or sentence. So she is feeling boxed in by those guideline boundaries in terms of the fast track issue. Now maybe that she's also said that, okay, on other issues, the guidelines are advisory. But this is, she is saying she's boxed in. I guess I just read it differently. I read it that at that point she concluded that a guideline sentence was appropriate for your client. And she put them at the bottom of the range in part because of this issue. So she gave us some credit, but it didn't give them as much credit as you would have liked. But on this issue, she was free to consider it as a basis for going below the guideline range. And she just didn't recognize her authority to do that because she said, as a legal matter, I can't do that. Page 147, she says, as a legal matter, I can't do that. Page 153, I can't do a departure, she says. She says, I can't. That's right. Isn't that a correct statement of a law? She had no right to do a guideline departure on the light of the fast track, or you'd say

. But I am going to consider it when I sentence within the guideline range because I am concerned, as I said, that we have people who may be in exactly this gentleman's position getting in much less or sentence. So she is feeling boxed in by those guideline boundaries in terms of the fast track issue. Now maybe that she's also said that, okay, on other issues, the guidelines are advisory. But this is, she is saying she's boxed in. I guess I just read it differently. I read it that at that point she concluded that a guideline sentence was appropriate for your client. And she put them at the bottom of the range in part because of this issue. So she gave us some credit, but it didn't give them as much credit as you would have liked. But on this issue, she was free to consider it as a basis for going below the guideline range. And she just didn't recognize her authority to do that because she said, as a legal matter, I can't do that. Page 147, she says, as a legal matter, I can't do that. Page 153, I can't do a departure, she says. She says, I can't. That's right. Isn't that a correct statement of a law? She had no right to do a guideline departure on the light of the fast track, or you'd say. Well, but, you're on a, this is all coming up in the context of a variance argument anyway. So this was never raised as a departure. So her reference to departure is clearly in the broader sense of differing from the guideline range. First of all, second of all, she then never discussed this as a variance. So that's an even under-indulgent statement. Just before that on 147, she says, that's not the kind of disparity that, you know, I don't think that the 3553A covers. That's correct, and that's correct under Norgans. That question is correct, I can see that. So if you're saying, you know, I don't want to, you know, I don't want to give them a variance from the 3553A. And then she says, or, you see, it's not a correct departure. So she's, that's in this junk tip. So she's concerned both, don't you think? I mean, that's a fair reason. Well, she's saying as a legal matter, she's not saying, I'm rejecting it as a matter of my discretion. She's saying as a legal matter, that's not the kind of disparity that's meant, meant. Or, or I otherwise should consider it, at least in the sense of departing from the guidelines

. Well, but, you're on a, this is all coming up in the context of a variance argument anyway. So this was never raised as a departure. So her reference to departure is clearly in the broader sense of differing from the guideline range. First of all, second of all, she then never discussed this as a variance. So that's an even under-indulgent statement. Just before that on 147, she says, that's not the kind of disparity that, you know, I don't think that the 3553A covers. That's correct, and that's correct under Norgans. That question is correct, I can see that. So if you're saying, you know, I don't want to, you know, I don't want to give them a variance from the 3553A. And then she says, or, you see, it's not a correct departure. So she's, that's in this junk tip. So she's concerned both, don't you think? I mean, that's a fair reason. Well, she's saying as a legal matter, she's not saying, I'm rejecting it as a matter of my discretion. She's saying as a legal matter, that's not the kind of disparity that's meant, meant. Or, or I otherwise should consider it, at least in the sense of departing from the guidelines. Since it's all for the same sentence, and it's prefaced with the statement as a legal matter, that's not a discretionary ruling. I see that my red light is on. That's right. Then we've seen the revenue you'd see could be recented. Is it remand for recented, it's a? That's correct. Thank you, Council. Thank you, Your Honor. Just two points very briefly. With respect to the issue about his having returned to Mexico during the time that the quen January 2000 and August of 2005, I refer you to page 103 of the supplemental appendix, in which the government stated, at the sentencing, everybody agrees the return of the United States of January 1st 2000. The district court during the sentencing then invites the defendant to argue or brings uses an example of someone who continually reenters of the United States and goes back to their native country. And the defendant makes no statement that he is one of those people. It is clear that the only dated issue and the only reentry date that all the parties considered was January of 2000. With respect to the fast track departure issue, what happened was, and only the only fair reading of this record is that the district court fully considered this issue and did it appropriately. The only thing the defendant raised as the basis for being granted a sentence below the guidelines was that there is this apparent variance or this apparent disparity. Does the variance case do him his argument? No, it foreclose in this case because that is the only basis that the defendant raised

. Since it's all for the same sentence, and it's prefaced with the statement as a legal matter, that's not a discretionary ruling. I see that my red light is on. That's right. Then we've seen the revenue you'd see could be recented. Is it remand for recented, it's a? That's correct. Thank you, Council. Thank you, Your Honor. Just two points very briefly. With respect to the issue about his having returned to Mexico during the time that the quen January 2000 and August of 2005, I refer you to page 103 of the supplemental appendix, in which the government stated, at the sentencing, everybody agrees the return of the United States of January 1st 2000. The district court during the sentencing then invites the defendant to argue or brings uses an example of someone who continually reenters of the United States and goes back to their native country. And the defendant makes no statement that he is one of those people. It is clear that the only dated issue and the only reentry date that all the parties considered was January of 2000. With respect to the fast track departure issue, what happened was, and only the only fair reading of this record is that the district court fully considered this issue and did it appropriately. The only thing the defendant raised as the basis for being granted a sentence below the guidelines was that there is this apparent variance or this apparent disparity. Does the variance case do him his argument? No, it foreclose in this case because that is the only basis that the defendant raised. Not I am a good guy or here submitting circumstances about me that make me a candidate for a variance. The only thing the defendant said was there is a disparity here. And you can see why the district court would want to give a defendant like this a sentence below the guidelines. And clearly the court did consider that it did have the authority to go below the guidelines as a variance and specifically said that guidelines are advisory. But this is a defendant with a lengthy criminal history including a very brutal and violent sexual assault. And the defendant did essentially nothing to address that in his variance argument and simply said there is this disparity give me a break, sends me below the guidelines. And the district court properly rejected that as the basically it's a defendant's only argument on that issue. Thank you, Council. We'll take the case under advisement and thank you, Council, for your arguments and your groups. Okay, we'll hear it.

State's versus Hernandez Gonzalez. Councilor, would you like to reserve some fire for a vote? I would, Your Honor. I'd like to reserve two minutes for a vote, please. Good. Good morning. My name is Richard Zach, and I represent the government in this case. In this case, the district court failed to consider a five of a criminal with fire convictions, as part of his criminal history in calculating his sentence. All five of those convictions were within 10 years of relevant conduct to the offensive conviction, namely, the defendants being found in the United States in August of 2005. And what the district court's error had the effect of doing was reducing the defendant's criminal history score from a five to a three in reducing his guideline range from 46 to 46 to 506. 47 months from 70 to 87 months. The district court's finding and legal conclusion is that odds with six other circuits that have decided. But the real question is, is it at odds with the third circuit, right? That is the question you're right. I don't know the answer, but I'm quite sympathetic to the district judge. I mean, it's a question of how you read the third circuit precedent. I guess that's usually here, right? If you read those two cases carefully, the D-Santillo case, as well as the Lenin case, let me address D-Santillo first, that case is clearly not applicable to this situation. First of all, in this case, this case is a relevant conduct case. It deals strictly with the application of the sentencing guidelines and the definition of relevant conduct under 1B1.3. D-Santillo dealt only with whether a crime is a continuing offense for purposes of the statute of limitations and whether that, when the statute of limitations begins to work. The definition of relevant conduct involves a time period, right? Well, you're on what the definition is? So in that sense, at least, it's somewhat. The question is, is it close enough to the limitations question to be binding? Yeah. What relevant conduct says is all conduct that is in preparation for the offense or committed during the commission of the offense must be considered in order to determine the date of the commencement of the offense for determining a criminal history. What D-Santillo did not consider because the guidelines were... I thought we were talking about the prior convictions. We are. And the question is, how far can you vote for a criminal? That is correct. And what the guidelines require is to... The first thing you have to do to determine whether something is relevant in conduct is when the instant offense commenced. Right. And where relevant conduct starts the clock ticking? Is there where relevant conduct started? It's where the relevant conduct to that offense, how far back that goes. In your arm, there have been six circuits that have considered this issue. It would have held that the reentry, the defense reentry into the United States illegally starts the best relevant conduct to the defense being found in. Now let me go back to D-Santillo. As I said, that was not a relevant conduct case. And what that case addressed was a situation very different from this situation. A situation where a defendant presents himself at a recognized point of entry using his real name reenters the United States illegally and is charged with reentering illegal. A different offense than the defendant in this case is charged with and a different set of facts. That case is fully applicable for that reason because it did not address found in offense. It addressed an illegal reentry offense and the issue there was whether the clock starts to run for statute limitations purposes upon the defendant's reentry. In fact, in D-Santillo, the court says that that situation is in marked contrast to when a defendant enters basically sneaks into the country, which is what the defendant Hernandez Gonzales did. In this case, now the other case, Judge Tashima, I believe that you were referring to is the Lennon case, which is also in applicable here. Because a careful reading of that case discloses that the court decided simply that even if you accept what the defendant advocated for, that it would affirm the sentence because any heir was harmless because even if you followed the defendant or revert the defendant, the defendant would have received the same sentence. So it did not reach the issue. Accordingly, everything it said about D-Santillo was dictum because it was not necessary to the opinion and the panel in that case, I believe in accurately stated, incorrectly stated that D-Santillo dealt with a found-in situation similar to the facts before the court in Lennon, which was not the case. In this case, the Lennon court, or the D-Santillo case, as I said, dealt only with that, a legal reentry. And there's a third-circuit case before Lennon, the Dixon case, where a defendant tried to argue that essentially no violations of Section 1326, the legal reentry statute, are continuing offenses. And the third-circuit, the panel in that case, and the Dixon case, rejected that argument and said basically that D-Santillo dealt only with the reentry offense involved in that situation and did not make any finding with respect to whether a found-in offense is a continuing offense. And he said, so on another topic, we have here is the Presentance Report, which is, I think, somewhat ambiguous, but it does mention, look, everyone agrees, going on a timeline, we've got January 1st to 2000, and then we've got the dating picked up. The Presentance Report appears to say, two times, or then that particular time period, he left the country again, does not mean there are three chargeable offenses there, if that's to be believed. So, you're on what your question illustrates is why this case must be remanded, and it must be remanded because relevant conduct is a factual determination. And the Court did not have the opportunity to decide whether those two alleged returns to Mexico would have cut off the relevant conduct in this case. The Court did not do that because the defendant took the opposite position as he takes now in the district court. The defendant agreed that he had reentered the United States on January 1st, 2000, and repeatedly, if you look at the Sensing here in transcript, there was no mention whatsoever of those two returns in defense counsel and the government, and everybody agreed that the return occurred in January of 2000. Now, let me just if you can follow me on this. So, you've got January 1st, 2000, and you've got what he's picked up in August of 2005. It seems to me that your indictment starts at the 2005 date and says he arrived in the country at some other point. So, is it that date that the time most recent to 2005, what you charged, and isn't that the date that's going to really tell us whether that relevant conduct, whether those other offenses are going to be part of his criminal history? The government's position is with respect to determining what is relevant conduct in this case. The district court has to make a factual finding as to what is relevant conduct. Now, the district court, what the district court held was under no circumstances that exist today, could an illegal reentry be relevant conduct to being found in. The court said that is not possible under decent pillow and let it. Basically holding a black letter, a dark rule that there is no chance that a reentry can be executed. Well, let's see if we go the other way. Let's assume then. Then it's got to be sent back for fact finding as to when he reentered the last time. The one you charged. Yes, Ron. And what we would argue is that the district court has to make a factual finding. Is there a difference between someone who comes to the United States in January of 2000 and comes to live here to reside here illegally after having been deported following his sexual assault conviction? Potentially possibly leaves the country twice for brief visits to his parents and comes back to his residence in Philadelphia area. Is that initial illegal reentry? Which the defendant is the one who identified? That's in January 1st, 2000. Yes, he said that's when I came back to the United States. The factual question for the district court would be, in which the district court did not use this analysis, would be, do those two visits? Do they break the relevant conduct chain? And that analysis did not occur. What occurred here was the district court said, look, there aren't any circumstances where any entry would ever be relevant conduct to the United States. And the cases that were lied on, as I've said, are not applicable. They simply do not address the relevant conduct issue. And if you look at Lenin, I believe, even mentioned the term relevant conduct. The other circuits that have actually decided this issue, and there are six, the fifth, the 11th, the 8th, 7th, 9th, DZ, and fifth circuits have all held... I'm sorry, I'm still confused by your continued reference to relevant conduct. Are we talking about criminal history? Yes, Your Honor, and you're out of that. Yes, put the guideline to it that computed from defendant's commencement of the instant offense, not relevant conduct. And you're out of that. Instant offense. If you look at application note 8, section 4A1.2, and 4A1.2 is the criminal history calculations section of the guideline. Application note 8 says, commencement of the instant offense includes relevant conduct, which means that you go back then to 1P1.3 to look to see what is relevant conduct to the instant offense. And that's what you use to calculate how far back you go to the note point. Application note 8, section 4A1.2. And if you... Those, each of those cases, those circuits that I mentioned, and that are cited in my brief, discuss this very issue. They discuss relevant conduct and how you determine the commencement of the instant offense. And they talk about how the illegal reentry, the actual illegal reentry, has to be considered by the district court, because the being found in offense could not have occurred without the illegal reentry. And in fact, the fifth circuit addresses the very issue, Your Honor, that Judge Shigaris raised. It talks about someone who repeatedly reenters the United States. In that case, in the fifth circuit case, the Alvarado case, the defendant had entered left and entered and left a number of times and had been prosecuted for those, I think there were five reentry and four prosecutions. And then had come back to the United States and left a number of times and came back and was found in the United States, finally prosecuted for that. And what the fifth circuit said was that the only time going and coming breaks up the relevant conduct chain is when the defendant is prosecuted, arrested and prosecuted in between the entries. The fifth circuit held that you could have a situation. We have some entries and leaving and being found in at a later time. And all that is relevant conduct for purposes of determining criminal history. Now, I see my light is on and I will save my time for a while. Thank you, Professor. May I please the court. My name is David McCallden. I'm the attorney, arguing on behalf of Night Dilleno, her name is Gonzalez. The criminal history was correctly calculated. This court does not have to reach the D. Santillo lenient issue. This court can conclude even based on the government's argument that it was correctly calculated because the government never established when the most recent reentry was or how long the visits to Mexico were. And those were undisputed. They're stated in the pre-sentence report in paragraph 38. It's completely undisputed that there were at these two visits back to Mexico. So the government simply hasn't met its burden even under its argument of showing that the most recent reentry was before 2003 or that the prior reentry should somehow count as relevant conduct. Plus the government never rejected the pre-sentence report either, right? That's correct. They never rejected the pre-sentence report and then stated very clearly in paragraph 38. So this court, even though the district court did not resolve the issue on that ground, this court is free to resolve the issue on any ground in the firm in the district court. So I think it's crystal clear based on the record that even the government's argument would not be supported. It isn't true though, Councillor, that there's a discrepancy. It appeared to me that the parties were like planes flying different altitudes. That there was an assumption that this stipulated date of January 1 was stipulated, but then later your argument is, well now it wasn't. We've got these two reentry. What troubles me is there's no real record. I shouldn't say no real record. If you're not any findings, it doesn't appear to be that this issue was joined the way it should have been joined below to give the district judge an opportunity to make findings of fact as to exactly what the appropriate date was. Well, it's correct that the district court did not make those findings and that's because the district court resolved the issue based on the Decentillo and Lane principal that found it is not a continuing offense. And she marked the critical time as being when the founding actually took place in 2004. So she never reached the issue of what the most recent reentry was. If we clarify the law, and when you agree that then remin might be a good idea to have this clarified, to have some fact-finding in this area, I would certainly not object to a re-nan on that issue, your honor, as well as on the second issue. Well, in other words, let me ask it for the question along the same lines. In other words, if we were to conclude that the law, the case law and all the other circuits, right? Which Mr. Black mentioned is correct on this issue. Then this sentence is erroneous, isn't it? This panel cannot reverse a prior panel decision. And I would, one way I said, if we conclude that all the other circuits are, well, then we had one more qualified. All the other circuits are correct on this issue. And there's no case in this circuit that directly addresses this issue, then the sentence is erroneous, isn't it? Legally, as a matter of law, we'd have to vacate and remin. No, it's not erroneous because this court can affirm on any ground, even a ground that the district court did not reach. And the factual ground this district court can affirm on is the fact that the government never established that the most recent reentry prior to being found in, occurred in 2003 or earlier. And that's a predicate, that's a necessary predicate for their argument in order for them to succeed in showing that the sentence was erroneous. If they can't show that, they can't show error in this court should affirm. And that's why I argue that this court doesn't have to reach the decentillo-linen issue. This court can simply look at the fact that, as Your Honor has stated, the government never objected to the pre-settlement report, never objected to the clear statement in paragraph 38 that there are at least two visits back to Mexico, where Ms. Jernin and Ms. Gonzalez's parents were living. Where does it say they were in Mexico? It says that they were residing in Mexico. Now, the government does. How do we know those visits didn't occur in Florida? Well, we have to give a common sense reading to this Your Honor. If we read this in context, there is no other reasonable interpretation of this. We have his parents, whose mother is a housewife and his father is a retired farmer. Quotinquot, they still reside in Mexico. Next sentence. The very next sentence. What paragraph are you looking at? I'm looking at page 8 of the pre-settlement report. This is paragraph 38. You're going to paragraph 38. And it's the last two sentences that are critical here. The government is trying to force them in a way that just doesn't make sense. The last sentence, then, says he said that he has maintained regular contact with his parents by telephone. And he visited them on at least two occasions since he illegally re-entered the United States after his deportation. If he is visiting them and they reside in Mexico, obviously the visits took place in Mexico. That's the only common sense interpretation of this pre-settlement report. It doesn't mean anything else. It may be the most likely interpretation, the most plausible interpretation. But what's the harm in requiring the district judge to join the issue and make factual findings on this? Again, these facts seem to be so critical to both of your respective arguments. Why not have a full hearing on the record and give the district judge a chance to make findings susceptible to the review by this court? I would have no objection to that. I certainly understand that the record print is not as clear as we would like, because the district court ruled on alternative grounds. If the court would like the district court to rule expressly on these grounds and decide the factual issue, I think a re-man would be appropriate. I would not object to that. I would also note that that would also give the government a chance to address the fast track issue, which I think has become refined in light of this court's decision in Vargas. Well, it's not for close because of Vargas? Vargas expressly limited is ruling to the conclusion that fast track disparity is not on warranted disparity under 3553A6. Now, that ruling is parallel to ruling of this court in the Parker case, where the court addressed co-defendant disparity. And the court, likewise, said co-defendant disparity is not on warranted disparity under A6, but then went on to state that, but the court can consider co-defendant disparity in sentencing under the other factors that exist in 3553A. Okay, indeed Vargas cites to Parker, and I believe it's footnote 11 in Vargas. So Vargas has limited its hold into that specific holding as Judge Ambrose stated in his concurrence in the denial of on-bock review in Vargas. So if we read Vargas together with Ambrose concurrence together with this court's decision in Parker, we can see that Vargas is limited. Now where the district court made its mistake was she was correct in saying that, okay, I can't consider this as unwarranted disparity, but she went to step further and said, and I can't consider it as any basis for sentencing outside the guideline range. And in doing that, she committed broker error because she said, this is a factor I really want to consider. I am concerned about the fact that there are defendants, and exactly this gentleman's position who are getting much lesser sentences. And I want to consider that, but I can legally only consider that in sentencing within the guideline box. She felt a self-bossed in by that, that is broker error. That is Gunter error. Gunter says that in step three, the guidelines are advisory. At that point, the sentences, the guidelines are considered as one factor, the court can consider all other factors. I think you're almost saying that that dissent in Vargas doesn't mean what it says, and I'm going to quote it. Today we followed in the summary circuit. Today we hold the district court refusal to adjust dissent to compensate for the absence of a fast track program does not make a sense in reason why. It's pretty broad isn't it? Your Honor, if you want dealing with that factual situation, it's not that she did not want to consider the factor. That ruling is if we look at the exact language in Vargas, it's saying that it's limited to 3553A6, which requires district courts to consider disparities. We hold the disparity between fast track and non-fast track districts is authorized by Congress and hence is warranted. The whole thing is entirely limited to A6. It will be a lot harder because the next step is in addition, we agree with the district court that on the 3553A6 claim. That's an addition. See that? I'm just looking for exactly where you are, Your Honor. I'll just come on. I'm under right. At the bottom of the page 9.9, Karen, over to page 100. Today we follow the second one for the circuits. In addition, we agree with the district court when addressing Vargas says 3553A6 claim. That's in addition. You see, it's going beyond that preceding sentence. It's not limited to 3553A6 away. I read it. Well, Your Honor, then it would be a violation. I think that's an overly broad reading of Vargas. I think that that would be inconsistently parker because in parker, this court made clear the same point we read. In regard to codifended disparity, that that is not unwarranted disparity. This court in Vargas' science department and Vargas stands for the principal that codifended disparity can be considered under one of the other factors. Likewise, fans track disparity. Although it's not unwarranted disparity for purposes of A6, it can be considered under one of the other factors. For example, it can be considered under the factors, the parsimony provision, whether or not a sentence of 30 months would be sufficient but not greater than necessary to meet the purposes of sentence. It's clearly relevant to that. And nothing in Vargas addresses that. Nothing in Vargas bars the district court from going on to address that. I just don't understand, Counsel, how you claim that the Judge committed poker or gunther error, which she specifically, at page 149 of the appendix, noted that the guidelines are advised. And it seemed to me, from my reading of the record, that although she couldn't make a guideline adjustment to your client's range based upon your fast track argument, as I recall, she put them at the bottom of the range and one of the reasons she put them at the bottom of the range was because she considered that as she would put it into the mix as one of the 3553A factors that she ought to consider. But she only felt free to do that within the guideline range. So on the facts, where should say that? Where does she say, I must impose a sentence within the guideline range. She said that page 149, the third advisory. That's a general statement saying that the third advisory. Well, the specific statement on the, as to the fast track issue is on page 147, at the very bottom, she says, I'm just not persuaded as a legal matter, but that's the kind of disparity that's meant by 3553A. And she's correct on that part under Vargas. I'll concede that. That's correct on the Vargas. But the next part of the sentence is, otherwise should consider it, at least in a sense of departing from the guidelines. That's where she has committed a book or error because she's saying that on the fast track issue, I can only consider that in sentencing within the guidelines. As a departure. But that doesn't mean she can't do a variance. This was before the circuit had to distinguish between departures and variances. I agree with that, but she would not be the only judge within the circuit to appreciate the important distinction between a departure and a variance before this court articulated in written opinion. But we know that she's using departure in the broad sense because then on page 153, she makes her point clear. She says, but I'm going to consider it, and that's the fast track issue. When I sentence him within the guideline range, she's already said, I can't consider it in sentencing outside the guideline range. But I am going to consider it when I sentence within the guideline range because I am concerned, as I said, that we have people who may be in exactly this gentleman's position getting in much less or sentence. So she is feeling boxed in by those guideline boundaries in terms of the fast track issue. Now maybe that she's also said that, okay, on other issues, the guidelines are advisory. But this is, she is saying she's boxed in. I guess I just read it differently. I read it that at that point she concluded that a guideline sentence was appropriate for your client. And she put them at the bottom of the range in part because of this issue. So she gave us some credit, but it didn't give them as much credit as you would have liked. But on this issue, she was free to consider it as a basis for going below the guideline range. And she just didn't recognize her authority to do that because she said, as a legal matter, I can't do that. Page 147, she says, as a legal matter, I can't do that. Page 153, I can't do a departure, she says. She says, I can't. That's right. Isn't that a correct statement of a law? She had no right to do a guideline departure on the light of the fast track, or you'd say. Well, but, you're on a, this is all coming up in the context of a variance argument anyway. So this was never raised as a departure. So her reference to departure is clearly in the broader sense of differing from the guideline range. First of all, second of all, she then never discussed this as a variance. So that's an even under-indulgent statement. Just before that on 147, she says, that's not the kind of disparity that, you know, I don't think that the 3553A covers. That's correct, and that's correct under Norgans. That question is correct, I can see that. So if you're saying, you know, I don't want to, you know, I don't want to give them a variance from the 3553A. And then she says, or, you see, it's not a correct departure. So she's, that's in this junk tip. So she's concerned both, don't you think? I mean, that's a fair reason. Well, she's saying as a legal matter, she's not saying, I'm rejecting it as a matter of my discretion. She's saying as a legal matter, that's not the kind of disparity that's meant, meant. Or, or I otherwise should consider it, at least in the sense of departing from the guidelines. Since it's all for the same sentence, and it's prefaced with the statement as a legal matter, that's not a discretionary ruling. I see that my red light is on. That's right. Then we've seen the revenue you'd see could be recented. Is it remand for recented, it's a? That's correct. Thank you, Council. Thank you, Your Honor. Just two points very briefly. With respect to the issue about his having returned to Mexico during the time that the quen January 2000 and August of 2005, I refer you to page 103 of the supplemental appendix, in which the government stated, at the sentencing, everybody agrees the return of the United States of January 1st 2000. The district court during the sentencing then invites the defendant to argue or brings uses an example of someone who continually reenters of the United States and goes back to their native country. And the defendant makes no statement that he is one of those people. It is clear that the only dated issue and the only reentry date that all the parties considered was January of 2000. With respect to the fast track departure issue, what happened was, and only the only fair reading of this record is that the district court fully considered this issue and did it appropriately. The only thing the defendant raised as the basis for being granted a sentence below the guidelines was that there is this apparent variance or this apparent disparity. Does the variance case do him his argument? No, it foreclose in this case because that is the only basis that the defendant raised. Not I am a good guy or here submitting circumstances about me that make me a candidate for a variance. The only thing the defendant said was there is a disparity here. And you can see why the district court would want to give a defendant like this a sentence below the guidelines. And clearly the court did consider that it did have the authority to go below the guidelines as a variance and specifically said that guidelines are advisory. But this is a defendant with a lengthy criminal history including a very brutal and violent sexual assault. And the defendant did essentially nothing to address that in his variance argument and simply said there is this disparity give me a break, sends me below the guidelines. And the district court properly rejected that as the basically it's a defendant's only argument on that issue. Thank you, Council. We'll take the case under advisement and thank you, Council, for your arguments and your groups. Okay, we'll hear it