Legal Case Summary

Good morning, Your Honor. May I please the court? My name is Adam Cogan, and I represent the appellant Germaine Warren connection with this time. I would respectfully request five minutes of rebuttal time. Great. Your honors in the plea agreement that was drafted by the government, the government promised Mr. Warren that it would not invoke the higher statutory penalties associated with the filing of a 851 notice, if Warren agreed to plead guilty, based in part on those promises, Mr. Warren did plead guilty, and it's sentencing, Warren argued a fairly common argument that the court is encountering now, that the court should, sentence in court, should eliminate the crap-powder disparity in sentencing, Warren. Now that's not at its first blotch, so easily done as it is said. Warren was a career offender, and therefore the 2D1.1 drug quantities don't automatically convert into the career offender context. But Warren argued, however, was, in this case involved 76.1 grams of powder cocaine as opposed to crack. I would be looking at a sentence of 20 years without the government filing the 851 notice. If you correspond that statutory maximum to the career offender guidelines, my base offence level, with instead of being a level 37, it would be a level 32. With my two points of acceptance responsibility, I would be at a level 30 and looking at a guideline range of 168 to 210 months. The government countered that. Blatantly, not only in the oral argument at sentencing, but in their written submissions, a very thorough developed sentencing argument, that I was wrong, that Mr

. Warren was wrong, that if you look at his offense as involving powder cocaine, then instead of looking at a 20 year maximum for his offense, he would be looking at a 30 year maximum. Now the only way you can get from 20 to 30 years under the drug statutes, Title 21, USC, such in 841, is through the effective filing of an 851 notice. And I would submit to the court, that's effectively what they did. They brought to the court sentencing consideration, the prior conviction, that they had promised that they would not use to increase his sentence. They promised they wouldn't use it, or they promised they wouldn't file. Well, the language is laid out in the plea agreement. It's not very long. The United States agrees not to file an information pursuant to 21 USC, such in 851, stating prior convictions, as they base a spring increased punishment. Well, how can the promise not to file it mean? And we won't make any reference to it, and we'll pretend that all that other stuff doesn't exist. I'm not saying that they couldn't make reference to his prior conviction. I mean, that would be silly. It's a sentencing. The person's criminal history is obviously a consideration in their sentencing, a driving force behind their sentencing. But what I'm saying is that Warren's position warned reasonably what have believed that that promise in the plea agreement juxtaposed with the language of 851 in the language of 841, meant that the government wasn't going to argue that his offense was that which would result through the filing of an 851. And did they literally file it? No, but they didn't have to. They got the effect that they needed without filing it, convincing the district court, that if this were a powder offense, that it would face those elevated statutes to our maximums

. So I would submit your honors that, whether they actually filed a written notice, I mean, this case were a written notice case. Obviously, I don't think we would really be here. I mean, it would be a, there would be no, I mean, it would be so blatant. But in the context of a plea agreement argument, the law is, it's one of the few areas of the law, particularly in federal criminal law, that is weighted towards the defendant. And it's weighted that way for a couple of reasons. One, we're going to strictly construe a plea agreement against the government because it is the drafter, and because we enforce the rule of law, and because the defendant is giving up so much, because of the vast disparity in power that the government has in negotiating these agreements, and because our reliance on these, if we don't have plea agreements in federal criminal court in this district, then we shut down. I mean, we need to have plea agreements, and we need to have the defendants who can believe in the promises that the government makes in those plea agreements. And they can't be allowed to skirt with the few things that they promise to do, they just can't be allowed to do that. Your honors. And what's the specifically that you seek? Is that to initiate the plea agreement? No, absolutely not. Or to just press the government to adhere to what they promise. That is exactly the relief that Warren seeks, a specific enforcement of the plea agreement. To have the chance to argue is the elimination of the crack powder disparity. In this case, third-circuit precedent demands that it would go back before a different district court judge. That's just simply the law from Santa bello and this court's precedent on. But that is what he wants in this case

. And it's not an unreasonable thing for him to ask for that. Pee agreements are not strictly construed against the defendant. They are what the defendant reasonably believe. But they're contracts, right? They are contracts. They are contracts. And it seems to me you're asking us to import into this written contract all sorts of covenants that aren't there. The covenant is we won't file. And there's no doubt they didn't file. And that's a sentencing. They're giving the sentencing court context by explaining how things would have shaken out. It's not the context I object to. It's the straightforward argument that convinced the district court that at this worry powder case, Warren will be looking at 30 years. When the government told Mr. Warren, well, how do you know that it would not be? How do you know that convinced the district court? 30 years is 360 months, right? No, no. That would be the statutory maximum from which the pre-offender guideline would have been to run. And he sent them the 248

. Right, but the court concluded. And I can find the page of the, and that's a written 248. So within guidelines set. No, but the court specifically said, and the government pointed it out, that it concluded that the analogous guideline provision would be the 210 to 262. So the court agreed with the government. The district court says it specifically. I, the parent phrase, the court says. The heart of men is talking about is, the government gave the court a point of information. That point of information, the court could have accepted or rejected or gone anywhere in between some permutation of, and probably would agree with this as a permutation of it. Given that, the government hasn't trampled on its contract obligation. It's merely inform the court, which is something that the court often asked the government to do. But the court promised more in effect that it would not use 851 to ratchet up his panel. Right, that's what they said. The court, the court easily could have said. Thank you for that information. And, and done whatever it is that it chose to be

. And if the court did that, that I would have no argument independently. But what I am arguing, your honors, is the court was convinced by the US Attorney's Argument, an argument that actually misstated the law. When press, this was something that you could tell was troubling the district court. Because he wasn't sure as to whether this would really be the right numbers. It's kind of a complex argument. And he asked the court, is Mr. Cogan right, in effect? And, and, and the US Attorney's Office responded, no. The, the 851 notice only ratchets up the man to reminemory. And, and in the context of the argument that I was making, that you have to, as part of, at the time that this was coming about yours, you have to remember that the context of this, and this judge, Cogil had just decided to clear this Russell case. And this area was developing, and what, and what Judge Cogil decided was, you know, in these crack cases, we're gonna, we're gonna basically create an alternative guideline. You know, what would the guideline range be if, if this were a powder case is opposed to crack? That was the step one, and it was Russell. Suppose the issue would have been the court asked the government, and then the government responded in the same way that it did it the hearing. Would you have the same argument that you have now? It would be, it would be a little bit of a different argument here, Honor. I think the court always has the, in attorney for the government, and the court always has the right to expect, hander, in, in the tribunal. You're not given the district court much credit, right? You're, you're, you're saying that the government, you know, grab the district court by the, those, and pull them along, and end it up with a sentence that you think is outside of what you bargained for. But, but, but, your honor, the record can't be disputed that, that I said, if you do this in powder, it's 168

.210, the 210. And then the government said, no, Mr. Cogil's wrong. If you do this in powder, it's 210.262. And the court explicitly found it was 210 is 262, when it made, it's, it's, it's ruling, that that is plainly in the record. It, it, it, it says 210 to 262. And from there, it fashioned the appropriate sentence. Could the court have asked, you know, what, what, what, what, what, thoughts were about, about crack and powder? I, I think the court, the, the, the, the, the, the, the, the, the, the, the, the, the, the government make an argument or did it provide an, it made an argument. It made it in written form. It made it in graphic oral form. And when I said no, that it violates the, the plea agreement, they said, you're incorrect, Mr. Cogil, it only applies to the mandatory minimum. And that directly refuted my argument. And it directly refuted the promise that they made, and Mr. Warren, that, that, that was the basis for his change of plea

. Thank you, Mr. Cogil. We'll hear you on rebuttal. Mr. Everhart. Good morning. I'm David Corson. I'm Robert Abraard, Assistant to the United States Attorney, on behalf of the Apple E United States. The relevant portions of the plea agreement are in the record, depending on page 429, and I'd like to refer to it very briefly. There simply was no violation of the plea agreement. The plea agreement specifically, as the court pointed out a few minutes ago, requires no filing of an A51. And it's unrebutted and unchallenged that there was no filing of an A51. The plea agreement did not, in any way, bind the district court from its counter responsibilities, its coupé responsibilities, its confo responsibilities, its call responsibilities, to do a guideline analysis and determination. So there's nothing in the plea agreement that says to the district court, we're taking away your responsibility to sentencing judge to do what you're required to do to calculate a guideline sentence. And that's exactly what the court did here. I would also point out that counsel was well aware of the government's position with regard to sentencing prior to sentencing, but never filed a motion to withdraw the plea

. So there was never a request to withdraw this plea, no matter what the remedy requested here before this court. I'm a little interested, frankly, in talking about Miranda. I thought you would be, Jack, so I was kind of trying to respond to this issue very briefly and move on to the Miranda issue. Thank you. Let's move on to Miranda. Why isn't the iteration of the Miranda warnings given to Mr. Warren at the station house by a later-prop of the Constitution? It seems to me that here's what I'd like you to put in context. Obviously, there's a circuit split since Miranda on this particular issue. Some of the cases are a little older, admittedly, but my count seems to be, or a circuit's on one side, or a circuit's on the other, you'll edify me if I'm wrong. And we have the most recent iteration of the Supreme Court in the House. Now, it seems to me that when you're talking about before, with regards to right to counsel, before or during, that the iteration in Powell from the Supreme Court covers that. Obviously, Justice Stevens just agreed immediately in the dissent, but we'll just stay with the majority for the moment. And it covered it. And it wasn't temporarily because it said before questioning. And then it said, you can invoke any of these rights at any time during the process, and obviously, right to a turn and attorney was specifically stated in Powell so that you can use that catch all praise and apply it to any of the rights at any time during the process. Now, as I see it, that's not what we have here

. And I'm troubled. So help. We readily admit in our brief that both language from Powell, the advisement given in Powell, and the advisement given to Warren, our set forth on page 23 of our briefings. There is a difference. We readily recognize that. Within context, and you're under your correct, the difference between circuits was recognized by Justice Stevens in his dissent in footnotes 8 and 9 of the Powell opinion. I suggest that the Powell opinion puts to rest the issues that are raised in footnotes 8 and 9 to the extent that I find a very enlightening to go back 44 years to June 13, 1966, shortly before I started law school when Miranda was in law. I don't want to tell you where I was in June of 1966. Well, I was a legal intern in the DA's office the following summer. And I remember talking to police officers who were now in this revolution that changed their lives as police officers. So I do remember- But since you harken back to Miranda, Miranda clearly talked about having the right jury interrogation. Actually, not exactly. And the reason I say that is- You disagree with the quotes in Powell from Miranda? I don't disagree with the quotes from Miranda. What I would emphasize is Justice Ginsburg's not only opinion, but her questioning during the oral argument, which I found very enlightening in the last few days. Justice Ginsburg goes back and says, what about Miranda? We have to go back to the classics a little bit with the back to the original iteration of what Miranda told us. And one of the important things that she found important was that the FBI's statements of rights was looked at by the court in Miranda as consistent with what we are deciding today

. And the importance to me of that was what she found consistent and what she really emphasized at the oral argument of Powell was that the importance is that the right to counsel be not restricted in any way by a statement to an interrogation suspect who has given the Miranda advisements that the right to counsel, the right to remain silent, are not in any way conditional and that they are unlimited in their scope. I would suggest that Sergeant Petrol and his speech on its face is deficient. If you are using that as the measuring, it's not deficient in the sense that it does not restrict in any way the right to counsel. It does not. And in fact, what's the purpose of the modifier before with no catch-all as you have in Powell and no other education for the person who's receiving it? I know the context of this case is not the deciding factor but I would just point out here that we do not have a freshman in this presentation of the issue because Mr. Warren, when he was asked, do you want to speak? If you want to talk, Sergeant Degas says, I had to slow him down. He wanted to talk. I had to tell him. I understand the fair enough. He's a pro, but so is the sergeant and they're at the station house. He could have got his card. Right. I just as Justice Ginsburg says in Powell, it would be the best of worlds. We would not be here today, and the court would not want to hear argument. If the card was read and it contained the additional words with regard to during or present or those words, I would point out that there are cases in that footnote, aid in footnote nine and Justice Stevens dissent, where the placing of those words during the present raised other types of problems and issues in those cases and frankly, I read all those cases again in the last few days and most of those cases have other problems in absolute. I mean, we're all worried in those cases and now about various iterations of what's fairly straightforward if you pick up the card. So I recognize that this is this court's first most Florida versus Powell situation to look at and I would suggest, however, that the important thing that Justice Ginsburg recognized and I would recommend the oral argument in Powell as some basis for an examination of this whole issue because the court was concerned with the fact that there be no limitation upon the right to counsel. But isn't the catchphrase the solace that she looked for and that she found? I think it is here to a certain extent. The question is, is the should you decide to talk to me? You can stop the question at any time. I think there is an implication there just like Justice Ginsburg said, it would be counterintuitive to suggest that a suspect in custody hearing those words would believe that he didn't have the right to counsel during questioning. But she relies on the fact that in Powell, there is this statement. You have the right to use any of these rights at any time you want during this interview. She's really not making it all due to Justice Ginsburg, who everyone loves. I mean, it's right there for her. I mean, that basically says, every right I've told you at any time in the continuum, you may invoke it. And knowing that you're covered. And excuse me, if we agree that Powell's the most recent iteration on this and that it speaks to the very issue that's concerning both of us as we try to grapple with this, then when I look at the language used by the sergeant here, should you decide to talk to me, you can stop the questioning at any time, doesn't inform me with regard to the right to an attorney. And the notice that's after he's been fully informed that you're right to counsel before any questioning. And you have the right to counsel, you have the right to an attorney. You have the right to counsel and one will be appointed to represent you without charge before questioning, if you wish. Now, I don't want to agree to disagree because I want to continue to grapple with this. But as you look at the different circuits that have addressed this, most that have addressed the jarring have found the absence of that language to be a failure of the Constitution

. So I recognize that this is this court's first most Florida versus Powell situation to look at and I would suggest, however, that the important thing that Justice Ginsburg recognized and I would recommend the oral argument in Powell as some basis for an examination of this whole issue because the court was concerned with the fact that there be no limitation upon the right to counsel. But isn't the catchphrase the solace that she looked for and that she found? I think it is here to a certain extent. The question is, is the should you decide to talk to me? You can stop the question at any time. I think there is an implication there just like Justice Ginsburg said, it would be counterintuitive to suggest that a suspect in custody hearing those words would believe that he didn't have the right to counsel during questioning. But she relies on the fact that in Powell, there is this statement. You have the right to use any of these rights at any time you want during this interview. She's really not making it all due to Justice Ginsburg, who everyone loves. I mean, it's right there for her. I mean, that basically says, every right I've told you at any time in the continuum, you may invoke it. And knowing that you're covered. And excuse me, if we agree that Powell's the most recent iteration on this and that it speaks to the very issue that's concerning both of us as we try to grapple with this, then when I look at the language used by the sergeant here, should you decide to talk to me, you can stop the questioning at any time, doesn't inform me with regard to the right to an attorney. And the notice that's after he's been fully informed that you're right to counsel before any questioning. And you have the right to counsel, you have the right to an attorney. You have the right to counsel and one will be appointed to represent you without charge before questioning, if you wish. Now, I don't want to agree to disagree because I want to continue to grapple with this. But as you look at the different circuits that have addressed this, most that have addressed the jarring have found the absence of that language to be a failure of the Constitution. Well, I would suggest that again, going back to Miranda is important in analyzing. Paul is important, but Paul does not say this is the floor. This is the minimum that has to be stated. What Paul says and what Justice Ginsburg writes in Paul is that this additional language adds to the totality of the circumstance in which to determine whether or not a reasonable person hearing these words would understand that they have a right unfettered right to counsel. And I suggest, based on the wording here, the district court analyzed the same cases that Justice Ginsburg did, Pysok and Duckworth, and analyzed and said, we don't analyze this like a conflict, like a plea agreement. We don't analyze it that way. We analyze it in a totality that is far enough, but you would agree, as I think you must, that both Pysok and Duckworth spoke specifically about the right to an attorney during the questioning, and they mentioned that language. But they also had qualifying language that raised the question of whether or not a reasonable person hearing that additional language, like I forget whether it was Duckworth or Pysok now, but one of them, when we go to court, you have the right to counsel provided, when we go to court, and the Supreme Court said, that additional language, which may have been somewhat qualifying, did not dampen the general statement that you have an unfettered right to counsel. And I think that's what I would emphasize. I think that's what Justice Ginsburg emphasized. I would love to have the words during or present in the statement that was made to Mr. Warren. Is your position that having before, is your position having before in your English, this case is in English, covers the notion of, during, I mean, the only qualifier here is before. How is one without the casual language to infer that it extends beyond that? That's the real issue. Yeah, I think it's, to me again, it's counterintuitive to suggest that a reasonable person hearing you have a right to counsel before you begin a questioning process or interrogation process would suggest that it is a springing and evolving and disappearing right to counsel, and is not a permanent right to counsel. I think there's a feeling of permanency of the right to counsel that is extracted from this statement that's made to Mr

. Well, I would suggest that again, going back to Miranda is important in analyzing. Paul is important, but Paul does not say this is the floor. This is the minimum that has to be stated. What Paul says and what Justice Ginsburg writes in Paul is that this additional language adds to the totality of the circumstance in which to determine whether or not a reasonable person hearing these words would understand that they have a right unfettered right to counsel. And I suggest, based on the wording here, the district court analyzed the same cases that Justice Ginsburg did, Pysok and Duckworth, and analyzed and said, we don't analyze this like a conflict, like a plea agreement. We don't analyze it that way. We analyze it in a totality that is far enough, but you would agree, as I think you must, that both Pysok and Duckworth spoke specifically about the right to an attorney during the questioning, and they mentioned that language. But they also had qualifying language that raised the question of whether or not a reasonable person hearing that additional language, like I forget whether it was Duckworth or Pysok now, but one of them, when we go to court, you have the right to counsel provided, when we go to court, and the Supreme Court said, that additional language, which may have been somewhat qualifying, did not dampen the general statement that you have an unfettered right to counsel. And I think that's what I would emphasize. I think that's what Justice Ginsburg emphasized. I would love to have the words during or present in the statement that was made to Mr. Warren. Is your position that having before, is your position having before in your English, this case is in English, covers the notion of, during, I mean, the only qualifier here is before. How is one without the casual language to infer that it extends beyond that? That's the real issue. Yeah, I think it's, to me again, it's counterintuitive to suggest that a reasonable person hearing you have a right to counsel before you begin a questioning process or interrogation process would suggest that it is a springing and evolving and disappearing right to counsel, and is not a permanent right to counsel. I think there's a feeling of permanency of the right to counsel that is extracted from this statement that's made to Mr. Warren. Again, I recognize that because he's not a freshman and because he's eager to speak, he wants to make a deal, he wants to give up his source and he wants the sergeant, to not even give him a random warning because he said, I know them, I know my right. So forget about the pro from it. The person on this street, it's your view that merely telling them that you have a right to have an attorney before would inform them without a catch-all and without anything else that they would have the right to consult that attorney during the process. As long as the police officer does not make any other, potentially qualifying statement with regards of right to counsel, I don't want to dominate anymore. I appreciate the opportunity. Thank you, Mr. Gerber. Thank you very much. Mr. Kogan? Just briefly, you're on. I think the court is correct in the position that you're taking. I think the inference... I'm not taking a position, I'm asking questions

. Warren. Again, I recognize that because he's not a freshman and because he's eager to speak, he wants to make a deal, he wants to give up his source and he wants the sergeant, to not even give him a random warning because he said, I know them, I know my right. So forget about the pro from it. The person on this street, it's your view that merely telling them that you have a right to have an attorney before would inform them without a catch-all and without anything else that they would have the right to consult that attorney during the process. As long as the police officer does not make any other, potentially qualifying statement with regards of right to counsel, I don't want to dominate anymore. I appreciate the opportunity. Thank you, Mr. Gerber. Thank you very much. Mr. Kogan? Just briefly, you're on. I think the court is correct in the position that you're taking. I think the inference... I'm not taking a position, I'm asking questions. Well, I apologize, you're on. I think I'm a so there. But the question that you're asking, I think in response to the government, I think the inference that would arise is that the interrogation, based on the warning that was given, what was in effect an isolated event. It's saying to the defendant, yes, you have the right to talk to a lawyer before the interrogation, but it implies, does it not, that once the interrogation starts, that that right no longer exists. Sure, can you stop the interrogation and go out and speak to the lawyer? Well, perhaps that's an inference that could arise from the warning that Sergeant Daccus gave. But I think that by putting that word in there, before you are conditioning it and essentially setting out the... That's a different case. Our case doesn't have the word before, right? Well, the warning that was in this case, what was a before warning? I thought it says you have the right to an attorney. Am I reading the wrong? Right, if I told him that he had the right to remain silent, anything you say, can, and will be used against you in a court of law, you have the right to an attorney. If you cannot hire an attorney, one will be appointed representative. You have the right to an attorney is what Warren was told. That's correct. There's no temporal limitation on that. In Powell, Powell was told, you have the right to talk to a lawyer before

. Well, I apologize, you're on. I think I'm a so there. But the question that you're asking, I think in response to the government, I think the inference that would arise is that the interrogation, based on the warning that was given, what was in effect an isolated event. It's saying to the defendant, yes, you have the right to talk to a lawyer before the interrogation, but it implies, does it not, that once the interrogation starts, that that right no longer exists. Sure, can you stop the interrogation and go out and speak to the lawyer? Well, perhaps that's an inference that could arise from the warning that Sergeant Daccus gave. But I think that by putting that word in there, before you are conditioning it and essentially setting out the... That's a different case. Our case doesn't have the word before, right? Well, the warning that was in this case, what was a before warning? I thought it says you have the right to an attorney. Am I reading the wrong? Right, if I told him that he had the right to remain silent, anything you say, can, and will be used against you in a court of law, you have the right to an attorney. If you cannot hire an attorney, one will be appointed representative. You have the right to an attorney is what Warren was told. That's correct. There's no temporal limitation on that. In Powell, Powell was told, you have the right to talk to a lawyer before. Right. So, I mean, that was... If there's no temporal limitation in our case, why would there need to be some sort of subsequent clarification that says, oh, and you have the right to these rights at any time throughout? Well, in the response to Judge Greenway's point and in response to the government, I think the language created that inference that he did not have, that right to counsel, during the interrogation. You have a right to an attorney... So, you want us to read, you have a right to an attorney to mean you have a right to an attorney, at some point in our discussion, but not throughout our discussion. That is a reasonable objective inference that the defendant could have taken from the Miranda Warren, that Sergeant D'Ack escaped him. Is there a... Were you quoting from the language you used to..

. Right. So, I mean, that was... If there's no temporal limitation in our case, why would there need to be some sort of subsequent clarification that says, oh, and you have the right to these rights at any time throughout? Well, in the response to Judge Greenway's point and in response to the government, I think the language created that inference that he did not have, that right to counsel, during the interrogation. You have a right to an attorney... So, you want us to read, you have a right to an attorney to mean you have a right to an attorney, at some point in our discussion, but not throughout our discussion. That is a reasonable objective inference that the defendant could have taken from the Miranda Warren, that Sergeant D'Ack escaped him. Is there a... Were you quoting from the language you used to... Yes. Is there a reference to before? That's the question. No, it is not. That is more... The Supreme Court case that was just decided... That was the Supreme Court case. The language is quoted at page 28 of my brief and it is quoted at the record as well. Again, you are at the point, in just to respond briefly, to two points that the government raised with respect to the plea agreement argument. The first is, what was the issue in this case? At the time... I'm sorry, let me just get through one threshold issue on that before we hear you short

. Yes. Is there a reference to before? That's the question. No, it is not. That is more... The Supreme Court case that was just decided... That was the Supreme Court case. The language is quoted at page 28 of my brief and it is quoted at the record as well. Again, you are at the point, in just to respond briefly, to two points that the government raised with respect to the plea agreement argument. The first is, what was the issue in this case? At the time... I'm sorry, let me just get through one threshold issue on that before we hear you short. Tell us what you want to say there. What was your client's guidelines range? Literally? What did the PSR say his guidelines? The PSIR said that his guideline range, I believe, was 327 months, your honor? I apologize, I have to look for one second. I thought it was 292-365. No, I thought it was 265. Sorry. And was there objection to that? I think that's a yes or no question. Well, was there an objection to the literal rudimentary calculations of the sentencing guideline based upon that? No, there was. All right, both sides agree that his guidelines range is 292-365. Literally. And then you go to sentencing and you put forward all kinds of good arguments as to why under Kimbrough, etc. And spears. In spears, you should come down on to that. Yes. And the trial judge agrees and gives your client 268. Excuse me, 248. Right? Consistent with Gunter

. Tell us what you want to say there. What was your client's guidelines range? Literally? What did the PSR say his guidelines? The PSIR said that his guideline range, I believe, was 327 months, your honor? I apologize, I have to look for one second. I thought it was 292-365. No, I thought it was 265. Sorry. And was there objection to that? I think that's a yes or no question. Well, was there an objection to the literal rudimentary calculations of the sentencing guideline based upon that? No, there was. All right, both sides agree that his guidelines range is 292-365. Literally. And then you go to sentencing and you put forward all kinds of good arguments as to why under Kimbrough, etc. And spears. In spears, you should come down on to that. Yes. And the trial judge agrees and gives your client 268. Excuse me, 248. Right? Consistent with Gunter. Consistent with just before you go on, is that, am I correct on this? Could you say that again, Your Honor? I'm not sure. I want to make sure I have my facts right now. The guidelines range is 292-365. Correct. There are also some good arguments made under Kimbrough and spears that that's too high. This is crack, different. Yes. That's an opportunity to come down, trial judge agrees, and goes downward to 248. That's correct. 42 months, 44 months below the bottom of the guideline. Yes. And your argument is that the government violated a plea agreement, covenanting not to file in 851 because in arguing what a reasonable adjustment under Kimbrough, or spears might be the court ought to keep in mind what this would have been even under power. Yes. The US attorney convinced the court, and I'm quoting from the record, that is if a powder cocaine statutory maximum of 30 were applied, and that is an appropriate maximum, it would produce an advisory guideline range with a base offense level of 32, 210-262 months. The court agreed with the government's argument, and the government's argument was premised on the 851 effect. Absent the 851 effect, a 76

. Consistent with just before you go on, is that, am I correct on this? Could you say that again, Your Honor? I'm not sure. I want to make sure I have my facts right now. The guidelines range is 292-365. Correct. There are also some good arguments made under Kimbrough and spears that that's too high. This is crack, different. Yes. That's an opportunity to come down, trial judge agrees, and goes downward to 248. That's correct. 42 months, 44 months below the bottom of the guideline. Yes. And your argument is that the government violated a plea agreement, covenanting not to file in 851 because in arguing what a reasonable adjustment under Kimbrough, or spears might be the court ought to keep in mind what this would have been even under power. Yes. The US attorney convinced the court, and I'm quoting from the record, that is if a powder cocaine statutory maximum of 30 were applied, and that is an appropriate maximum, it would produce an advisory guideline range with a base offense level of 32, 210-262 months. The court agreed with the government's argument, and the government's argument was premised on the 851 effect. Absent the 851 effect, a 76.1 gram case was a 20-20-year maximum, which would effectively yield a guideline range of 168-210, when the government argued that the equivalent statutory maximum, based on Warren's offense, would carry with it a 30-year maximum, based exclusively on the effect of his prior conviction. I'm submitting that argument, making that argument and convincing the court of that position violated the promise that was made to Warren, not to make that argument, not to use 851 to increase his sentence. That was what he drew from that. That's a reasonable inference to be drawn from the statute and from the plea agreement. And when the court then sentenced him, concluding first that the government was right, that the crack powder disparity eliminated in this case, yields a 210-262 month range. How can that not be a violation of his plea agreement? The effect that they could have gotten from the filing of an information was effectively done without it. I mean, they promised him that we're not going to do this, yet they did it. And that was the argument that convinced the court to sentence him to a higher range. Thank you, Mr. Cogan. We understand your position. Thank you to Council for excellent briefing and argument. We'll take the matter under advised.

Good morning, Your Honor. May I please the court? My name is Adam Cogan, and I represent the appellant Germaine Warren connection with this time. I would respectfully request five minutes of rebuttal time. Great. Your honors in the plea agreement that was drafted by the government, the government promised Mr. Warren that it would not invoke the higher statutory penalties associated with the filing of a 851 notice, if Warren agreed to plead guilty, based in part on those promises, Mr. Warren did plead guilty, and it's sentencing, Warren argued a fairly common argument that the court is encountering now, that the court should, sentence in court, should eliminate the crap-powder disparity in sentencing, Warren. Now that's not at its first blotch, so easily done as it is said. Warren was a career offender, and therefore the 2D1.1 drug quantities don't automatically convert into the career offender context. But Warren argued, however, was, in this case involved 76.1 grams of powder cocaine as opposed to crack. I would be looking at a sentence of 20 years without the government filing the 851 notice. If you correspond that statutory maximum to the career offender guidelines, my base offence level, with instead of being a level 37, it would be a level 32. With my two points of acceptance responsibility, I would be at a level 30 and looking at a guideline range of 168 to 210 months. The government countered that. Blatantly, not only in the oral argument at sentencing, but in their written submissions, a very thorough developed sentencing argument, that I was wrong, that Mr. Warren was wrong, that if you look at his offense as involving powder cocaine, then instead of looking at a 20 year maximum for his offense, he would be looking at a 30 year maximum. Now the only way you can get from 20 to 30 years under the drug statutes, Title 21, USC, such in 841, is through the effective filing of an 851 notice. And I would submit to the court, that's effectively what they did. They brought to the court sentencing consideration, the prior conviction, that they had promised that they would not use to increase his sentence. They promised they wouldn't use it, or they promised they wouldn't file. Well, the language is laid out in the plea agreement. It's not very long. The United States agrees not to file an information pursuant to 21 USC, such in 851, stating prior convictions, as they base a spring increased punishment. Well, how can the promise not to file it mean? And we won't make any reference to it, and we'll pretend that all that other stuff doesn't exist. I'm not saying that they couldn't make reference to his prior conviction. I mean, that would be silly. It's a sentencing. The person's criminal history is obviously a consideration in their sentencing, a driving force behind their sentencing. But what I'm saying is that Warren's position warned reasonably what have believed that that promise in the plea agreement juxtaposed with the language of 851 in the language of 841, meant that the government wasn't going to argue that his offense was that which would result through the filing of an 851. And did they literally file it? No, but they didn't have to. They got the effect that they needed without filing it, convincing the district court, that if this were a powder offense, that it would face those elevated statutes to our maximums. So I would submit your honors that, whether they actually filed a written notice, I mean, this case were a written notice case. Obviously, I don't think we would really be here. I mean, it would be a, there would be no, I mean, it would be so blatant. But in the context of a plea agreement argument, the law is, it's one of the few areas of the law, particularly in federal criminal law, that is weighted towards the defendant. And it's weighted that way for a couple of reasons. One, we're going to strictly construe a plea agreement against the government because it is the drafter, and because we enforce the rule of law, and because the defendant is giving up so much, because of the vast disparity in power that the government has in negotiating these agreements, and because our reliance on these, if we don't have plea agreements in federal criminal court in this district, then we shut down. I mean, we need to have plea agreements, and we need to have the defendants who can believe in the promises that the government makes in those plea agreements. And they can't be allowed to skirt with the few things that they promise to do, they just can't be allowed to do that. Your honors. And what's the specifically that you seek? Is that to initiate the plea agreement? No, absolutely not. Or to just press the government to adhere to what they promise. That is exactly the relief that Warren seeks, a specific enforcement of the plea agreement. To have the chance to argue is the elimination of the crack powder disparity. In this case, third-circuit precedent demands that it would go back before a different district court judge. That's just simply the law from Santa bello and this court's precedent on. But that is what he wants in this case. And it's not an unreasonable thing for him to ask for that. Pee agreements are not strictly construed against the defendant. They are what the defendant reasonably believe. But they're contracts, right? They are contracts. They are contracts. And it seems to me you're asking us to import into this written contract all sorts of covenants that aren't there. The covenant is we won't file. And there's no doubt they didn't file. And that's a sentencing. They're giving the sentencing court context by explaining how things would have shaken out. It's not the context I object to. It's the straightforward argument that convinced the district court that at this worry powder case, Warren will be looking at 30 years. When the government told Mr. Warren, well, how do you know that it would not be? How do you know that convinced the district court? 30 years is 360 months, right? No, no. That would be the statutory maximum from which the pre-offender guideline would have been to run. And he sent them the 248. Right, but the court concluded. And I can find the page of the, and that's a written 248. So within guidelines set. No, but the court specifically said, and the government pointed it out, that it concluded that the analogous guideline provision would be the 210 to 262. So the court agreed with the government. The district court says it specifically. I, the parent phrase, the court says. The heart of men is talking about is, the government gave the court a point of information. That point of information, the court could have accepted or rejected or gone anywhere in between some permutation of, and probably would agree with this as a permutation of it. Given that, the government hasn't trampled on its contract obligation. It's merely inform the court, which is something that the court often asked the government to do. But the court promised more in effect that it would not use 851 to ratchet up his panel. Right, that's what they said. The court, the court easily could have said. Thank you for that information. And, and done whatever it is that it chose to be. And if the court did that, that I would have no argument independently. But what I am arguing, your honors, is the court was convinced by the US Attorney's Argument, an argument that actually misstated the law. When press, this was something that you could tell was troubling the district court. Because he wasn't sure as to whether this would really be the right numbers. It's kind of a complex argument. And he asked the court, is Mr. Cogan right, in effect? And, and, and the US Attorney's Office responded, no. The, the 851 notice only ratchets up the man to reminemory. And, and in the context of the argument that I was making, that you have to, as part of, at the time that this was coming about yours, you have to remember that the context of this, and this judge, Cogil had just decided to clear this Russell case. And this area was developing, and what, and what Judge Cogil decided was, you know, in these crack cases, we're gonna, we're gonna basically create an alternative guideline. You know, what would the guideline range be if, if this were a powder case is opposed to crack? That was the step one, and it was Russell. Suppose the issue would have been the court asked the government, and then the government responded in the same way that it did it the hearing. Would you have the same argument that you have now? It would be, it would be a little bit of a different argument here, Honor. I think the court always has the, in attorney for the government, and the court always has the right to expect, hander, in, in the tribunal. You're not given the district court much credit, right? You're, you're, you're saying that the government, you know, grab the district court by the, those, and pull them along, and end it up with a sentence that you think is outside of what you bargained for. But, but, but, your honor, the record can't be disputed that, that I said, if you do this in powder, it's 168.210, the 210. And then the government said, no, Mr. Cogil's wrong. If you do this in powder, it's 210.262. And the court explicitly found it was 210 is 262, when it made, it's, it's, it's ruling, that that is plainly in the record. It, it, it, it says 210 to 262. And from there, it fashioned the appropriate sentence. Could the court have asked, you know, what, what, what, what, what, thoughts were about, about crack and powder? I, I think the court, the, the, the, the, the, the, the, the, the, the, the, the, the, the government make an argument or did it provide an, it made an argument. It made it in written form. It made it in graphic oral form. And when I said no, that it violates the, the plea agreement, they said, you're incorrect, Mr. Cogil, it only applies to the mandatory minimum. And that directly refuted my argument. And it directly refuted the promise that they made, and Mr. Warren, that, that, that was the basis for his change of plea. Thank you, Mr. Cogil. We'll hear you on rebuttal. Mr. Everhart. Good morning. I'm David Corson. I'm Robert Abraard, Assistant to the United States Attorney, on behalf of the Apple E United States. The relevant portions of the plea agreement are in the record, depending on page 429, and I'd like to refer to it very briefly. There simply was no violation of the plea agreement. The plea agreement specifically, as the court pointed out a few minutes ago, requires no filing of an A51. And it's unrebutted and unchallenged that there was no filing of an A51. The plea agreement did not, in any way, bind the district court from its counter responsibilities, its coupé responsibilities, its confo responsibilities, its call responsibilities, to do a guideline analysis and determination. So there's nothing in the plea agreement that says to the district court, we're taking away your responsibility to sentencing judge to do what you're required to do to calculate a guideline sentence. And that's exactly what the court did here. I would also point out that counsel was well aware of the government's position with regard to sentencing prior to sentencing, but never filed a motion to withdraw the plea. So there was never a request to withdraw this plea, no matter what the remedy requested here before this court. I'm a little interested, frankly, in talking about Miranda. I thought you would be, Jack, so I was kind of trying to respond to this issue very briefly and move on to the Miranda issue. Thank you. Let's move on to Miranda. Why isn't the iteration of the Miranda warnings given to Mr. Warren at the station house by a later-prop of the Constitution? It seems to me that here's what I'd like you to put in context. Obviously, there's a circuit split since Miranda on this particular issue. Some of the cases are a little older, admittedly, but my count seems to be, or a circuit's on one side, or a circuit's on the other, you'll edify me if I'm wrong. And we have the most recent iteration of the Supreme Court in the House. Now, it seems to me that when you're talking about before, with regards to right to counsel, before or during, that the iteration in Powell from the Supreme Court covers that. Obviously, Justice Stevens just agreed immediately in the dissent, but we'll just stay with the majority for the moment. And it covered it. And it wasn't temporarily because it said before questioning. And then it said, you can invoke any of these rights at any time during the process, and obviously, right to a turn and attorney was specifically stated in Powell so that you can use that catch all praise and apply it to any of the rights at any time during the process. Now, as I see it, that's not what we have here. And I'm troubled. So help. We readily admit in our brief that both language from Powell, the advisement given in Powell, and the advisement given to Warren, our set forth on page 23 of our briefings. There is a difference. We readily recognize that. Within context, and you're under your correct, the difference between circuits was recognized by Justice Stevens in his dissent in footnotes 8 and 9 of the Powell opinion. I suggest that the Powell opinion puts to rest the issues that are raised in footnotes 8 and 9 to the extent that I find a very enlightening to go back 44 years to June 13, 1966, shortly before I started law school when Miranda was in law. I don't want to tell you where I was in June of 1966. Well, I was a legal intern in the DA's office the following summer. And I remember talking to police officers who were now in this revolution that changed their lives as police officers. So I do remember- But since you harken back to Miranda, Miranda clearly talked about having the right jury interrogation. Actually, not exactly. And the reason I say that is- You disagree with the quotes in Powell from Miranda? I don't disagree with the quotes from Miranda. What I would emphasize is Justice Ginsburg's not only opinion, but her questioning during the oral argument, which I found very enlightening in the last few days. Justice Ginsburg goes back and says, what about Miranda? We have to go back to the classics a little bit with the back to the original iteration of what Miranda told us. And one of the important things that she found important was that the FBI's statements of rights was looked at by the court in Miranda as consistent with what we are deciding today. And the importance to me of that was what she found consistent and what she really emphasized at the oral argument of Powell was that the importance is that the right to counsel be not restricted in any way by a statement to an interrogation suspect who has given the Miranda advisements that the right to counsel, the right to remain silent, are not in any way conditional and that they are unlimited in their scope. I would suggest that Sergeant Petrol and his speech on its face is deficient. If you are using that as the measuring, it's not deficient in the sense that it does not restrict in any way the right to counsel. It does not. And in fact, what's the purpose of the modifier before with no catch-all as you have in Powell and no other education for the person who's receiving it? I know the context of this case is not the deciding factor but I would just point out here that we do not have a freshman in this presentation of the issue because Mr. Warren, when he was asked, do you want to speak? If you want to talk, Sergeant Degas says, I had to slow him down. He wanted to talk. I had to tell him. I understand the fair enough. He's a pro, but so is the sergeant and they're at the station house. He could have got his card. Right. I just as Justice Ginsburg says in Powell, it would be the best of worlds. We would not be here today, and the court would not want to hear argument. If the card was read and it contained the additional words with regard to during or present or those words, I would point out that there are cases in that footnote, aid in footnote nine and Justice Stevens dissent, where the placing of those words during the present raised other types of problems and issues in those cases and frankly, I read all those cases again in the last few days and most of those cases have other problems in absolute. I mean, we're all worried in those cases and now about various iterations of what's fairly straightforward if you pick up the card. So I recognize that this is this court's first most Florida versus Powell situation to look at and I would suggest, however, that the important thing that Justice Ginsburg recognized and I would recommend the oral argument in Powell as some basis for an examination of this whole issue because the court was concerned with the fact that there be no limitation upon the right to counsel. But isn't the catchphrase the solace that she looked for and that she found? I think it is here to a certain extent. The question is, is the should you decide to talk to me? You can stop the question at any time. I think there is an implication there just like Justice Ginsburg said, it would be counterintuitive to suggest that a suspect in custody hearing those words would believe that he didn't have the right to counsel during questioning. But she relies on the fact that in Powell, there is this statement. You have the right to use any of these rights at any time you want during this interview. She's really not making it all due to Justice Ginsburg, who everyone loves. I mean, it's right there for her. I mean, that basically says, every right I've told you at any time in the continuum, you may invoke it. And knowing that you're covered. And excuse me, if we agree that Powell's the most recent iteration on this and that it speaks to the very issue that's concerning both of us as we try to grapple with this, then when I look at the language used by the sergeant here, should you decide to talk to me, you can stop the questioning at any time, doesn't inform me with regard to the right to an attorney. And the notice that's after he's been fully informed that you're right to counsel before any questioning. And you have the right to counsel, you have the right to an attorney. You have the right to counsel and one will be appointed to represent you without charge before questioning, if you wish. Now, I don't want to agree to disagree because I want to continue to grapple with this. But as you look at the different circuits that have addressed this, most that have addressed the jarring have found the absence of that language to be a failure of the Constitution. Well, I would suggest that again, going back to Miranda is important in analyzing. Paul is important, but Paul does not say this is the floor. This is the minimum that has to be stated. What Paul says and what Justice Ginsburg writes in Paul is that this additional language adds to the totality of the circumstance in which to determine whether or not a reasonable person hearing these words would understand that they have a right unfettered right to counsel. And I suggest, based on the wording here, the district court analyzed the same cases that Justice Ginsburg did, Pysok and Duckworth, and analyzed and said, we don't analyze this like a conflict, like a plea agreement. We don't analyze it that way. We analyze it in a totality that is far enough, but you would agree, as I think you must, that both Pysok and Duckworth spoke specifically about the right to an attorney during the questioning, and they mentioned that language. But they also had qualifying language that raised the question of whether or not a reasonable person hearing that additional language, like I forget whether it was Duckworth or Pysok now, but one of them, when we go to court, you have the right to counsel provided, when we go to court, and the Supreme Court said, that additional language, which may have been somewhat qualifying, did not dampen the general statement that you have an unfettered right to counsel. And I think that's what I would emphasize. I think that's what Justice Ginsburg emphasized. I would love to have the words during or present in the statement that was made to Mr. Warren. Is your position that having before, is your position having before in your English, this case is in English, covers the notion of, during, I mean, the only qualifier here is before. How is one without the casual language to infer that it extends beyond that? That's the real issue. Yeah, I think it's, to me again, it's counterintuitive to suggest that a reasonable person hearing you have a right to counsel before you begin a questioning process or interrogation process would suggest that it is a springing and evolving and disappearing right to counsel, and is not a permanent right to counsel. I think there's a feeling of permanency of the right to counsel that is extracted from this statement that's made to Mr. Warren. Again, I recognize that because he's not a freshman and because he's eager to speak, he wants to make a deal, he wants to give up his source and he wants the sergeant, to not even give him a random warning because he said, I know them, I know my right. So forget about the pro from it. The person on this street, it's your view that merely telling them that you have a right to have an attorney before would inform them without a catch-all and without anything else that they would have the right to consult that attorney during the process. As long as the police officer does not make any other, potentially qualifying statement with regards of right to counsel, I don't want to dominate anymore. I appreciate the opportunity. Thank you, Mr. Gerber. Thank you very much. Mr. Kogan? Just briefly, you're on. I think the court is correct in the position that you're taking. I think the inference... I'm not taking a position, I'm asking questions. Well, I apologize, you're on. I think I'm a so there. But the question that you're asking, I think in response to the government, I think the inference that would arise is that the interrogation, based on the warning that was given, what was in effect an isolated event. It's saying to the defendant, yes, you have the right to talk to a lawyer before the interrogation, but it implies, does it not, that once the interrogation starts, that that right no longer exists. Sure, can you stop the interrogation and go out and speak to the lawyer? Well, perhaps that's an inference that could arise from the warning that Sergeant Daccus gave. But I think that by putting that word in there, before you are conditioning it and essentially setting out the... That's a different case. Our case doesn't have the word before, right? Well, the warning that was in this case, what was a before warning? I thought it says you have the right to an attorney. Am I reading the wrong? Right, if I told him that he had the right to remain silent, anything you say, can, and will be used against you in a court of law, you have the right to an attorney. If you cannot hire an attorney, one will be appointed representative. You have the right to an attorney is what Warren was told. That's correct. There's no temporal limitation on that. In Powell, Powell was told, you have the right to talk to a lawyer before. Right. So, I mean, that was... If there's no temporal limitation in our case, why would there need to be some sort of subsequent clarification that says, oh, and you have the right to these rights at any time throughout? Well, in the response to Judge Greenway's point and in response to the government, I think the language created that inference that he did not have, that right to counsel, during the interrogation. You have a right to an attorney... So, you want us to read, you have a right to an attorney to mean you have a right to an attorney, at some point in our discussion, but not throughout our discussion. That is a reasonable objective inference that the defendant could have taken from the Miranda Warren, that Sergeant D'Ack escaped him. Is there a... Were you quoting from the language you used to... Yes. Is there a reference to before? That's the question. No, it is not. That is more... The Supreme Court case that was just decided... That was the Supreme Court case. The language is quoted at page 28 of my brief and it is quoted at the record as well. Again, you are at the point, in just to respond briefly, to two points that the government raised with respect to the plea agreement argument. The first is, what was the issue in this case? At the time... I'm sorry, let me just get through one threshold issue on that before we hear you short. Tell us what you want to say there. What was your client's guidelines range? Literally? What did the PSR say his guidelines? The PSIR said that his guideline range, I believe, was 327 months, your honor? I apologize, I have to look for one second. I thought it was 292-365. No, I thought it was 265. Sorry. And was there objection to that? I think that's a yes or no question. Well, was there an objection to the literal rudimentary calculations of the sentencing guideline based upon that? No, there was. All right, both sides agree that his guidelines range is 292-365. Literally. And then you go to sentencing and you put forward all kinds of good arguments as to why under Kimbrough, etc. And spears. In spears, you should come down on to that. Yes. And the trial judge agrees and gives your client 268. Excuse me, 248. Right? Consistent with Gunter. Consistent with just before you go on, is that, am I correct on this? Could you say that again, Your Honor? I'm not sure. I want to make sure I have my facts right now. The guidelines range is 292-365. Correct. There are also some good arguments made under Kimbrough and spears that that's too high. This is crack, different. Yes. That's an opportunity to come down, trial judge agrees, and goes downward to 248. That's correct. 42 months, 44 months below the bottom of the guideline. Yes. And your argument is that the government violated a plea agreement, covenanting not to file in 851 because in arguing what a reasonable adjustment under Kimbrough, or spears might be the court ought to keep in mind what this would have been even under power. Yes. The US attorney convinced the court, and I'm quoting from the record, that is if a powder cocaine statutory maximum of 30 were applied, and that is an appropriate maximum, it would produce an advisory guideline range with a base offense level of 32, 210-262 months. The court agreed with the government's argument, and the government's argument was premised on the 851 effect. Absent the 851 effect, a 76.1 gram case was a 20-20-year maximum, which would effectively yield a guideline range of 168-210, when the government argued that the equivalent statutory maximum, based on Warren's offense, would carry with it a 30-year maximum, based exclusively on the effect of his prior conviction. I'm submitting that argument, making that argument and convincing the court of that position violated the promise that was made to Warren, not to make that argument, not to use 851 to increase his sentence. That was what he drew from that. That's a reasonable inference to be drawn from the statute and from the plea agreement. And when the court then sentenced him, concluding first that the government was right, that the crack powder disparity eliminated in this case, yields a 210-262 month range. How can that not be a violation of his plea agreement? The effect that they could have gotten from the filing of an information was effectively done without it. I mean, they promised him that we're not going to do this, yet they did it. And that was the argument that convinced the court to sentence him to a higher range. Thank you, Mr. Cogan. We understand your position. Thank you to Council for excellent briefing and argument. We'll take the matter under advised