may please the court my name is nathaniel garrett and i represent the appellant tyrone davis i endeavor to save about four minutes for rebuttal and i will watch my own clock and united states versus austin this court held that it was bound to follow just this sort of my words concurrence in freeman versus united states none of justice sotomayor as fellow justices adopted her reasoning to the contrary the four justice concluded that she had adopted in a row rule and the four justice dissent characterized her reasoning as arbitrary and unworkable austin thus adopted as law of the circuit the supreme court's least popular answer to the question presented in this case when and under what circumstances may a defendant who is sentenced after entering into a rule eleven see plea agreement seek modification of a sentence under section thirty five eighty two this course should overrule austin and it should hew to the principle that under mark's versus united states a plurality or concurring opinion is binding only if it is the logical subset of other broader opinions such that it represents a position implicitly approved by a majority of the justice concurring in the judgment let me ask you question about that let's assume that just to sort of mar yours opinion in that case produced every time he granted relief the rest of the  e focused on logic right to me suggests that if we have a if there are no outliers as there would be under justice sort of my ors opinion we would nonetheless reject the opinion as the controlling opinion is not results we look at not logic no your honor well to be fair since one thousand nine hundred seven when marx was decided the federal courts of appeals have essentially adopted two different tests one does look at results we reject that test for a number of reasons and urge the court to do the same but let me answer your your direct question which was what if the results are always subsumed within the player as and that's a better way of putting it opinion it would be a harder case but it's still there's still a problem with that approach and we are to the courts rejected and the reason is it's still results in anti majority area in cases like this one where in effect you're taking one justices reasoning and applying that to future cases and so that's that's the real  problem is that you have eight justices who have said just the sort of my hours of the way she just approaches this question what is including me if i understand your point let me ask the question slightly differently let's assume in this assume for a moment your case does not fall within the which was submitted to this court by the government fall is a case that answered the exact same question as king versus palmer which is under delaware valley should we should plaintiff's attorneys get a  for the risk of nonpayment fogl said we're going to count noses and we think that they should the d c circuit said we're going to do the logical subset rule and independently conclude they should it the supreme court took that case again because they hadn't decided it and in city of burlington they agreed with the d c circuit but in this case they have decided if they have the david dressed if once you can see that you know for within just a sort of mayor's rule they have addressed the very situation that comes in this case they were unable to agree on reasoning but they agreed on the result don't you know how your case comes well again your honor there's two problems with that want one is what i described the anti majority and probably the others you're counting to says which is in itself a big problem number one it contravenes marks which tells you to look at the justices concurring in the opinion and number two it raises in my mind severe constitutional problems with article three because what you're doing in effect is you're taking dicta which is what it essentially is and you are counting back to two  to derive a controlling rule and that has never been with the supreme court has has instructed and in fact several courts have rejected that approach and also by the way now there a number of the circuits followed suit in m as austin ted and there's been some petitions for sort that they have tonight i do i honestly don't know the answer i would suspect but i don't know the answer i think i have no ok and until now the ninth but but let's let's i want to have one but let's talk about those opinions your honor many of them do not expressly announce their reasoning the ones that do talk about how going to just judge her it's a question they assume that just the sort of miers opinion is a logical a perfect logical subset of the pluralities and it's not it's not a logical subset because there are situations as duvall and apps describe the sentencing guideline by the parties is considered to be say a cocaine sentencing guideline was but the judges considered the district good and career criminal correct that's one the she wouldn't grant relief no your honor as judge williams explains in deval she hasn't answered the question at all because that part of one b one point ten wasn't even an active yet what what judge williams explains is a play couple may very well mean and may the plea agreement gave a sentence that would have been ok under the old under the old guidelines the judge the judge rejected the old guidelines because he didn't like one hundred to one and he did twenty to one star and and so but he ends up in the same place just relief under that case would you not because he had yes it worked through the guidelines all the way to justice kennedy it depends what the district court judge says at the district court judge says i don't think it let's say i don't want to do  reject that as a matter of policy from this from this case so you can imagine a situation where the parties work through the analysis to do one point one of the district court says i reject the guidelines in this case i think they're completely far too harsh but i'm going to ask the following question i'm trying to figure out how your position plays out we're not supposed to look at justice sotomayor is a position under your argument we have no laws now which comes out of eighty two if they entered into a roulette and see plea what we do say because that's the reasoning that as opposed to the result the reasoning that both justice sotomayor and justice kennedy well because that's the one thing you know all five justices absolutely agree upon as based on yes in order to find but again if that's so why don't we look at the reasoning that just sort of my or has and the reasoning of those in the dissent and we know as justice as judge her which is suggested to you if we just count noses i don't know how the case is going to come reasoning of the four dissenting justices of course i am i'm looking at the reasoning of the nine justices and trying to figure out how they're going to come out with a case that's presented to them and if i conclude looking at all my reasoning with they've announced that five to four are going to have your client lose why doesn't your client lose because you can take that into account as a discretionary matter in deciding what the rule ought to be but that's not the controlling opinion of the case because historically under the command model of precedent a dissenting opinion is not rationale of the various justices they don't do a market analysis they just look at the rationale in the reasoning to determine what was the rule that comes out of their case well frankly i think the supreme court has been all over the map in terms of how they actually apply t that the parties negotiated and have the same question for morgan when he gets up but there is no stipulation with regard to criminal history category the parties agreed that it was a base off and slow bill of thirty four there really isn't anything else that that is even tied to the guidelines in the police there are several things tied to the guidelines but again we're we're not we're not contending that we would prevail under justice or miers opinion before right now but but there are other things for example at e r thirty seven they talk about the acceptance of responsibility under three one point one and the government says specifically and we will consider the guidelines and making our determination whether to move for this reduction of the problem i have with with the way this thing went down is the parties stipulated to a sentence of eighteen years basically but then the defendant was given the right to argue for less than eighteen years we don't know what the government could or would have done had the court departed downward it's i've never seen an eleven c once the agreement like this i agree it is odd as i understand it is had partly to do because a new council had come in but i agree i can't tell if the government was saying and if he reduces we're still bound or not it's just not clear to me that your brief says that because that plea agreement was modified this court is not required to invoke justice out of meyer's current yes that was the is a different question than whether there was a controlling opinion yes and my only point is that i'm not asked i'm not suggesting the court should willy nilly cast off everything that has come before it clearly what the supreme court said  different reasoning the justices had were not free to adopt the minority position or act because we know we know the five justices of the court have at least said that relief is available and there are some circumstances but are we required to choose between the other two no i think there could be for example a modification of judge just the sort of miers very rigid test which for example she says what matters to me is what the parties say in the agreement but further i would require them to for anything so we can do whatever we want and that seems a bit lawless to me i think the supreme court thinks they're saying something but your honor the common denominator but bridget kelly  mean the fact is that the logical subset rule has been around now for at least two decades in the supreme court does not suggest that that's a wrong way of looking at in fact they have several cases where that's exactly the kind of analysis they conduct frankly i think th case from last term you can find a lot of cases that's one of them were just the sort of maior expressed her view of marks you can find a lot of cases where there is sincere and deep disagreement with the notion that something is controlling unless there is a fundamental reasoning that enjoys a majority of the just a problem with your argument if i were to use venn diagrams to diagram this the only area where the you circles would overlap with the concurrence in the judgment bottom line if states government would submit that this court is simply not free to adopt a logical subset rule because the supreme court has at least on three occasions applied marks in a fashion that is inconsistent with that rule so if the supreme court does not interpret marks in that fashion i would submit this quite simply is not free to do let me ask you about those occasions because as i look at them they all lack one thing that troubles me about this case and that's the question of whether or not the so called controlling opinion would produce a result in which only one person on the court agreed in those other cases i don't think that was the case i would grant relief in which eight other people would not within the framework of the freeman decision and the way the case was presented to the supreme court i would say no and i want to qualify that because the case is presented to the supreme court and decided by the supreme court was a case in which there was no dispute that both the agreement and the defendant were subject to sentencing under two d one point one so when you read the pluralities decision and they talk about of course the guidelines are being taken into account because the court is considering the guidelines in deciding whether to accept or reject it the plea agreement the court is taking as a given that the two d one point one guideline is the applicable guideline that the court is applying the problem that you have when you start looking at the variance that a judge william started to discuss in the d c circuit is that was a fact pattern and it wasn't present in freeman it's not one hundred percent clear to me that proudly would go along with that analysis mcclintock it's pretty clear that under the pluralities reasoning that relief would not be granted in that case isn't it if that if you apply the reasoning what i'm actually not one hundred percent sure of that either and i will explain why  for example if you have a case where the parties have a negotiator see agreement tied to the one point one and the court instead calculates a court decides no the defendant subject to something is a clear offender if the levels don't match up like happened in this court pleasant decision and the court nevertheless accept the agreement well the court in that sense is varying down and accepting the agreement like what the court rejects the old sentencing guidelines and says i'm not going to have hundred to one i'm going to do twenty to one or ten to one because i think that's the better way to do my thinking but then i but i found it was other stuff so i end up in the same place anyway is that how does that one come out under under the already of you i guess in that circumstance when you say you're rejecting the hundred to one ratio you're not necessarily rejecting to the one point one as the apple guideline you're just suggesting that i don't like the ratios within that guideline but it's still refusing to apply that guideline i think that guideline is barbaric and i refused to apply most my conscience will allow me to do is ten to one but within the  i would suggest that within the kimberley framework you're not refusing to apply the guideline you recognise that's the alcohol guideline you're just choosing to very down and you're choosing not to follow it i wouldn't say that you know you're just free to say this guideline doesn't apply in this case because it certainly does but even if even if if you accept the premise that there might be some outlier that that could theoretically generate a result that assuming that the plurality would would alternately the sentence is still based on that agreement and it's still based on that guideline because it's a that's when you accept that agreement you break setting that guideline that's where you go where you're you know would you change you can now you're telling me is one then how can her opinion be to controlling rule well the best analogy i can come up with is the supreme court's decision in the panels versus united states that was another four one four decision where justice kennedy issued an opinion that most of the time would match up but wouldn't all the time and in this court in the fair waters case adopt the justice kennedy's plurality as the controlling opinion citing to a seventh circuit case that recognized that there might be this one outl instance where it didn't match up with since as a prop for all intents and purposes there was legitimate you know was legitimately a subset it was sufficiently predictive to be controlling and i think that's kind of the key thing here is that marks is in a way shorthand it's a shorthand for essentially counting noses now when you have a pure marx case where like marx itself where you have a case that's a very broad rule and then a more narrow rule but it's no one would dispute that it's a logical subset you don't have to count the noses because in that circumstance it's just a heuristic you can say yes in this circumstance it applies the same thing if you have a pure result case where the you may have different rationales but one rationale always read emails and more now result and that would sort of be like for example graham versus florida where the the court you know adopted justice kennedy's view about proportion purposes which was much more narrow than than justice scalia's view but it's always going to produce a subset again in that circumstance marx's operating as a heuristic you don't have to count the noses but there are going to be cases where when you were a nose counting is going to have to take place and that actually makes sense because when the supreme court decides a case they're deciding a case they don't they don't sit to decide  they're trying to divine a rule and for a lower court unfortunately when they have a fractured decision doesn't have the luxury of casting aside or or just saying well we'll start over the court has to attempt to subsection see that the dissenters would say sorry you don't get a sentence reduction and just a sort of my aura would say you don't get a reduction even though course they arrive at this very very different route is that a rule that we are bound to follow or is that really a prediction of what the supreme court is likely to do based upon the rationales that they have expressed in the frame in the freman case in the hypothetical that you've given me where the facts are going to shake out that the is going to say no relief and another player in that sense is to say no really and the concurrence is going to say no relief right in that circumstance i think yes just a sort of my oars concurrence is the rule that will apply against the more narrow of the rule it's it's a common sense now so my question is how do you get a rule then out of four dissents when the dissents were not giving us a rule at all they were just objecting to the rule that the plurality was trying to establish why is that a rule rather than merely a prediction well it's predictive of course it is a prediction but why is it more than that well it's more than that because again well first off let me back up i'm not one hundred percent clear that the would get the rule because you would combine those dissents in the current concurrence of the current still more narrow it's narrow in the sense that the dissenting justices would never grant relief and again you have just a sort of my who would sometimes grant relief not always but sometimes so her position is has done it and they did it in the league of united latin american versus perry where the court combined the dissent in the the v f case with justice kennedy's concurrence and justice kennedy in who's writing for that case said well that at those three have together and that's the holding that holding is on challenge in this case so they can do it they can do whatever they want well that's true but we're bound by what they've told us to do so well i but again i would suggest that the supreme court believes that that's an appropriate method of dividing the rules going forward from a case that that makes sense and if you look at the view of case that actually makes perfect sense well let me back up now because i'm still stuck on this almost almost but not quite semantic point difference between rule and prediction it's hard for me to get out of the ordinary usage of these terms a rule or a holding based upon what people say in the dissent because they disagreed with what was what the decision was and we treat that as an ascent and a disagreement and to translate that into holding want to combine it with rationale out of the concurrence is a little odd in terms of usage it made also be a little odd and just in the sense of how judges behave dissents are sometimes no i was saying that they're not necessarily considered in the same way that majority holdings are than actually produce the result you sometimes get talk in dissent it's a little looser a little broader i mean for instance for me to look to and to send as a source of law is a different action as from looking reality as a source of law it is and i would suggest that it's only in the rare case where you're going to need to do that but i would point out that but that this is this apparently is one of them in your view i'm not prepared to concede that again because i'm not one hundred percent sure that the plurality would in fact you know hew to its analysis given the change in fact pattern of just judge williams hypothetical but even assuming that to be the case that's how this court resolves its own fractured in bank opinions as an analytic and logical matter there's no reason why the court should have to apply a different rule when you have a fractured supreme court case where you can't divine an easy marks analysis one of those he cs where where that something is always more now than the other where you have some potential for like the oddity where you have one judge taking a position that eight justices would agree with disagree with in one case you should be able when you're confronted with those facts this court should have to say well we know that judge eight justice the supreme court would not grant relief but because the concurrence would we're going to grant relief in this case no i think the court should be able to say look this is the rationales underlying the supreme court's decision we know that judges are going to reject that view we're not going with dot that rule just have it come straight screaming back from the supreme court so i think that that's an appropriate analytical framework when confronted with a sufficiently fractured decision and again it's not all decisions are going to be that fracture but i would suggest that all the other the easy marks cases again are just surest x for the nose counting that you would be doing anyway it's just that when they're not easy that breaks down and that sort of the last resort to try to make sense of what the supreme court decided counsel i want to get back to a question that judge tolman had for your colleague concerns whether this really is an eleven plea if you look at the language an eleven c one c and then you look what happened here where the defendant was allowed to argue at sentencing for a lower sentence in my years in the usa i've never heard of that in the so i think they did decide it as a factual matter what happened was at sentencing there was a change in attorneys and the attorney basically to get some credibility his client needed to be able to come in and  something it since he was he had come in after the agreement had already been accepted but why did you agree to it why didn't you just say counsel here's the deal and that's the deal a government agreed to and if you want to back out of it now the it's the deal is off and we're going to trial it wasn't about backing out and i guess it's perhaps an example of no good deed goes unpunished is that trying to sort of just essentially help the defense counsel from a bone so that he could do something and not make his client happy but had judge leighton sen anything less than eighteen years you would have declared that the deal was off now we're well that's probably true but i think that that's the fact not a no one see one theory well the kind of is because that's the whole point of an eleven it is if we win but not if we lose well no it's the point of an eleven c one c is that if the judge rejects the sentencing stipulation the parties are free to back out right and the defense recognized that if the judge was convinced his sentence below the government was free to back out so it still had its eleven seemed c character it was still you know it did the character of the plea agreement didn't change but if you count of we hold that in fact it was not an eleven c one simply agreement then do we get there would you what your position then can they then sikri sentencing if this is not a law and see one see agreement i mean yes i believe you can because in that circumstance well let me back up you're not going to be barred he's not going to be barred by the freeman rule i would take the position in that circumstance and this is to be fair not been brief because no one has ever really litigated this but this i would argue that the sentence wasn't based on the guidelines and anyway this sentence was not tethered to two d one point one in any fashion it was a below guidelines and it had absolutely nothing to do but you didn't pick eighteen years out of the air i mean somebody must have been looking at guidelines at the time that the negotiations were underway well looking at the guidelines in this in the sense of this is the range but again we didn't even know what the real gun there was a serious dispute about what the actual guideline range was between the defense and the prosecution of the seniors come from frankly kind of picked out of the area i mean if the tooth fairy brought it in a sense i mean not to be glib but in a sense because what happened here is you any logically and you can correct me if i'm wrong it's based on the government's evaluation of the guideline range that would apply and the defense is contrary argument and then based on the party's respective differences you came up with something that you thought was fair and appropriate right but  the guidelines being a starting point i don't think can legitimately dis be disputed if the parties are consulting the guideline to negotiating off of their view of which guidelines apply and how it applies no court that i'm aware of has ever held that simply because the part the guidelines are in the parties minds during plea negotiations renders a sub a sentencing guideline based on the guns and in the mean thirty two c two i mean this court in broad flat out rejected that position that simply because the parties took into account the guidelines on which is likely been talked about the court engaging in same process mean that's that that's the reality of how it works the court looks at the guidelines and makes a determination as to whether the parties eleven c one c agreement agreement but i would still take the position that the sentence also be the function of the agreement and getting back to the plea negotiations one has to remember that the tutti one point one guideline is only one factor in fact again this won't this case want pretty high level yes but you want to draw i mean it's what anchors the whole thing is that to do one point one table well yes but again when you're talking about when you pick a sentencing range that again is below the guidelines and it's it's not in light of the guidelines it was reasonable and fair well yes because it is clear that he was anchoring to the guidelines at the time the second sentencing the sentencing the sentence the stipulated sense happened to be within the guidelines i mean that's the oddity of this case is that it started out as a below guideline sentence then by the time it comes back for recency it's a mere guideline sentence and then by the time it comes out for reasons again it's a below guideline sentence which i think is sort of proves the point this is so tough this is so totally not tethered to the guidelines it really wasn't but as you point out there are there are stipulations with regard to enhancements and reductions that are right out of the guidelines sometimes of responsibility the base often  d but there were a lot of things that weren't subject to stipulation you know criminal history category role in the offense the way i see my time is up so it was you know and again so there were many other factors that weren't tied to the guidelines so again to say that this is sort of based on and again this is the key a sentencing range and that's the guidelines got to be the sentencing range for purposes of thirty five eighty to see to and we have a below guideline sentence that's just that in his plea agreement that doesn't spell out all the guideline calculation chooses to fashion that's true your honor i think the judge would be free to set and assuming he set to sixteen i think it's clear that in that context we're out of sort of my warland because we're not talking about c and as judge pi is noted on twenty two the judge says i'm considering the guidelines here's a guideline range eighteen years is fair and reasonable he said under the guidelines i think an eighteen year sentence is fair and reasonable correct but why shouldn't we just decide the case by declaring it's not really an eleven c once you agreement and then we can avoid all  this i think that would be an appropriate resolution or assuming the court doesn't go that way second i want to talk about rap and else because that case was mentioned i think it's a good illustration the courts of appeals have struggled with wrapping knows what rule to apply this court did adopt the concurrence other courts have adopted the concurrence and the plurality i think what that proves is that under the logical subset rule we wouldn't really end up in a different place than we already are which is the courts would simply be  be able to recognise there was no common ground so we have the discretion to choose an appropriate test and i think they would come out pretty much how they've come out already which is some would say concurrence some would say plurality and concurrence and we'd be in the same place i also think the dissent in rapin is really important and interesting because the cases that have been cited for where the dissents are used to sort of count predict the results those are wrapping those cases and i would urge the court in addition to king that really goes to the defense issue how does the court also look at united states versus johnson which does look at the dissent but why because it says in rapid knows the dissent made the point of saying we agree with the plurality whenever they would find jurisdiction so would we we agree with the concurrence whenever they would find jurisdiction so would we in effect you almost have a logical subset a situation where the dissent is saying we would go further than them but in every situation we would agree that's very different than when they said in mark that we're not supposed to look at th and that was just throw away the not my our my primary point judge tolman is that we shouldn't look at dissents my secondary fallback point is if you do if we believe you do look at johnson because when johnson says maybe it's appropriate in those cases where the dissent logically agrees with everything the other part the other just as are saying just disagree with the outcome that's far different from here where the dissent disagreed with the reasoning of justice sotomayor and with the plurality it's very different count noses in that situation in the last the last thing i want to hit on is this point and it's absolutely fair to be worried that we're not being sufficiently respectful of the supreme court of course that's a legitimate concern but there are going to be many cases two of them were mentioned yesterday in the box williams where you are going to have a marx subset and there are going to be a lot of cases where even though there's a fractured opinion you're going to be able to divine the correct result and i just finish my thought of going on but in those rare cases where the supreme court has not divined one reasoning that a majority can agree on we submit it's not disrespectful in that circumstance to say this is no different than a four for opinion we haven't been given majority guidance and in that situation of course we look to what the supreme court has done of course were guided by  or not bound b your arguments this morning a very helpful to the court and to cases who will be submitted for decision will be in recess