it's morning folks so welcome to our court to brief observations for those of you who may not have appeared in our court before that i wanted to make and will proceed with the first of the cases as you proceed with your argument you can safely assume that we've had an opportunity to read not just the briefs in the record excerpts but in some instances we've had a chance to read the record the entire record as well so feel free to go right to the to the heart of your argument second for those of you unfamiliar with our lighting system there's sort of a time keeper there's a green light which means of course go yellow or amber which is a two minute warning and the red light indicates your time is up when you see that red light come on would be appreciative if you could bring your remarks to a conclusion that doesn't mean you've got to stop dead in the middle of a sentence or a thought but if you could bring it to a conclusion we'd be much appreciative with that we will proceed with the first argument united states versus jasmine proud conviction was vacated he requested such a hearing where the district denied that request instead it impose a twenty month upward variance to the statutory maximum without a hearing and without any explanation for the  of the civil case or the criminal case it's just seems to me and maybe it's neither here nor there because you've got both appeals but the sentencing claim is more at home in the appeal from the subsequent sentence than it is in the twenty to fifty five i would agree with that or in the c e o way appeal i get that your honor it doesn't something we did in abundance of caution but it doesn't affect your analysis in any way does it no your honor when a district court granted twenty to is whether the district court erred by denying mr brown and we sentencing hearing in the answer is yes for two reasons first under this court's precedent mr brown had a constitutional right to a recent seeing hearing because this entire sentencing package was vacated and set aside and the district or had the discretion to impose a different lesser sentence can you tell me what that phrase means i got to tell you i have no idea what entire sensing package sensing package is just the aggregate of the sentence whether it's a multi count case or a single count case it's the package of sanctions imposed on a defendant includes the term imprisonment the term a supervised release any restitution a pint bottle sussan and it's just a package of sanctions and when it does th package it can be when a district court does it in a section point two fifty five motion the idea is that whether it's a multi count case or single count case the slate has been wiped clean there is nothing left on the books and we are back at square one and stands in the shoes someone who's never been sentenced but all his due process rights that he would have initial sentencing to the benefit of the defendant and that's the idea that's the logic of the cases as i read them we have a case out there u feed taylor if you could help me with that an interesting case is a lot of dicta in that i want you to tell me what's burning what is and and what kind of a right as it cast on this case i think taylor supports mr brown there there was a section twenty two fifty five motion right so that's the same is this as opposed to it coming up under federal rules of criminal procedure correct and just to be clear they just talk about taylor this idea that you could treat it as a rule thirty five motion the district court had that option that option is no longer available that version of rule thirty five was repealed as part of the sensing reform act so just in case there's any actually was not required to vacate the sentencing package in its entirety and schedule a rehearing in that it could instead have entered in order simply amending the sentence and for the proposition that a recent seeing hearing was not necessary we cited the hill and older supreme court case in sixty two where the sentencing error arose under rule thirty two but what significance of any are we do a tad to what i think is no more than that now is addict on or it's not even something that can be part of this case the old version of rule thirty five prior to sensing reform act stated that in a legal sentence may be corrected at any time which no longer exists a but supreme court precedent at the time stated that because of that language district court had the option to treat a twenty to fifty five as a rule thirty five and if it did that then it was essentially treating as a sense in modification a sentence modification motion which would not require the complete baker of a sentence only a modification of a sentence that option is no longer on the table furthermore the district court did vacate mr brown sentence right but the difference there was  about the difference between would between train as a rule thirty five or twenty two fifty five but that was the option and if you look at the cases cited so bios you see julie it does arises twenty to fifty five correct that's where i reference it for you and the second point you bring up is the fact that mr taylor did get a response in hearing by the district court but that was not critical to the taylor court's decision the taylor court cites jackson for the proposition that the right to be present when your tire sensing package is vacated and set aside is constitutionally the issue and the holding in terms of the fact that mr taylor's entire sense and package is vacated the fact that mr taylor was afforded of baker in a remand from this court wasn't because a district court happened to schedule re sensing it was because his entire sensing package was b k didn't set aside so he doesn't have the right to be present in every twenty to thirty five that's correct right so what's the difference different when is it for one side of the aro and when on the other in paris for example another twenty to fifty five are we we say that he didn't have a right to be president the difference between a recency and a correction goes to where are we doing to the original judgement are we wiping it off the books are we starting over then that's a recent scene and defender has a due process ripe for only beginning part of the sentence or it's just a ministerial act that's a correction because we aren't taking the original sense completely off the books we're just modifying it and that has different this was an error the second reason when i was in error is even assuming the district had the discretion to choose between a correction or we sense in which we submitted didn't have that discretion but even if it did was still not in appropriate remedy given the facts of this case mr brown saying mr brown's new guideline range was seventy seven to ninety six that's correct your honor and how many months has he served he served more than ninety six his current release date is october of twenty nineteen i'm not sure how that works or terms again time but i'm confident saying he served more than the top end of his guideline range if the court is no further the irony would be if we agreed with your position and we said the district court was  because it was a complete vacate or to give him the right to be present with vacated the sentence and sent it back it would if anything only prolong and i suppose you'd go to the district co provisional release pending the resolution of the sentence but the irony is that he would stay still go or unfortunately that was incumbent upon us to resolve this thing quickly it seems to me but i'm just raising that question terms of the it please the court michel taylor for the united states under twenty two forty five district courts enjoyed broad discretion in deciding how to fashion an appropriate remedy congress expressly gave district court two different options the option to correct the sentence or the option to re sentence the defendant so those are two separate also understand your argument is that this was a correction and not of  sharp the defendant was on may eighteenth two thousand and eleven which sentence was vacated following the court granting defendants motion to vacate under twenty eight you know so it's go twenty to fifty five i mean doesn't that contradict your argument well that footnote does appear on the face of the amended judgment but if you look at the order itself which was the basis of the district court ruling the court order never vacate and set aside the sentence the court actually says it's  the defendant sentence and that reference in the amended judgment to the sentence being vacated doesn't show that the court chose the option of re sentencing the court here clearly chose the option to correct if the court you know the question is wh two remedies under twenty to fifty five to the court jews did it choose to correct or did it choose to research is it a correction he started out with one hundred eighty month sentence which exceeded the statutory maximum  if that indeed is the case and then there was an upward variance why shouldn't he have given the defendant the right to be heard well your honor the court did choose the option here to correct rather than to erase the whole sentencing proceeding and start with a clear slate so for instance it didn't order the creation of a new p s r it didn't take any new evidence it decided it was just going to grant this limited relief of correcting the defendant sutton's now a correction is not merely a ministerial act as the defendant had suggested we can see this actually in the adam's case there the court corrected the sentence after the vacation of a state conviction that had been one of the predicates for an enhancement and the court corrected the sentence from  two hundred ninety two months sentence to a two hundred sixty two money ask a question about what the what the court actually said the trial court do i have this right at the amended judgments said that the defendant's quote sentence was vacated i am any judge moore says that i let me finish the defendant's sentence quote was vacated following the court granting his motion under twenty eight us code twenty two fifty five the district court itself chose a language vacate or rather than a correction or emendation what significance if any are we do was scribed to the fact that the trial judge said he was vacating the sentence well if you actually look at the court's order i think that's the best evidence of the court's actual intent because the order says the sentence is corrected it doesn't the order is docked nine up for it doesn't say vacated in the order and then the order directs the you agree you would lose if it's correct you say you win i guess you know i always or severing over it and not looking at the substance of what really happened here i think  really the focal point of of our analysis or at least it ought to be i think that's correct and when you look at the substance of what the district court chose to do the remedy that the court chose was a correction regardless of what language it happened to  but note the order actually says a correction and what the court did i believe very we've conceded that it said vacate or at one point it says correction is another and we agree that that shouldn't be the dispositive element right rather we ought to be looking at the substance of what he did right that's kind of substance of what he did is he took one hundred eighty month sentence wiped it out started over and said now i'm going to give you one hundred twenty and i get there with an upward they are immense so that a fair statement of what happened i would disagree that he started over because i think if he had still get the started over he wiped out one eighty inserted one twenty and said he gets there using holding up would they are intense i think that's correct and in fact any time a court corrects a sentence as an adams the new sentence replaces the old sentence the old sentence falls away that's going to happen and even in the sentence correction it's not dependent on whether the court chooses the remedy of free sentencing or not and here the court chose the limited relief now in a twenty to fifty five the district court is the master of the remedy is to say it's limited relief i suppose dropping the sentence by a third is more than limited and the events of relief and imposing  variance to get want to one twenty is more than of limited moment to the defendant right i think that's correct and in fact i think when the court gave us the recalculated guidelines range it actually went further than it had to it didn't even have to recalculate the range in a sentence correction i said some of the cases in the twenty eight jail letter where the court had said there is no need in a sentence correction to begin anew to recalculate the guidelines range but here the court did look and say well this is the range that applies without the enhancement and this is still the sentence that i think is appropriate i am going to correct the illegality that the defendant asserted in the twenty to fifty five motion and once i correct that illegality i'm leaving one hundred twenty in place and that was entirely appropriate especially when you look at the defendant's criminal history in the sentencing landscape the defendant by please point me in the record to where the judge considered the thirty five fifty three  factors well the court considered the thirty five fifty three factors when it imposed the original sentence it talked about the defendant know what i'm talking on recent saying do you agree the chart didn't talk about the thirty five fifty three i factors in recent saying the court did discuss some of the thirty five fifty three factors in that it where it discussed the procedural history and the fund where when the first paragraph of its order it describes the three counts the defendant was a i mean is your argument that he did consider the thirty five to thirty three i factors or that he he didn't because he didn't have to there's no expressed ashtray command to consider the thirty five fifty three factors but as a practical matter those factors are certainly the driving did he do that it shows that he took into account and i think we all know the it's in that i'm just a i just want to be sure i understand your argument and so the thing in the judge's order that demonstrates that he considers the thirty  three a factors is the first paragraph where he lists the charges of conviction and the prior convictions i would say that the way you see the court considered the thirty five fifty three i factors is not limited to that but as to the record as a whole we know the court c how i'm talking about on recent sing i mean what i'll look at well i think i think that thirty five fifty three factors are part of what this court can consider in deciding whether the district court abused its discretion and d sing your honor it's our position it's not a recent thing so the court didn't need to begin anew with a brand new thirty five fifty three a analysis and that's why i think the distinction is important here because when the court is considering whether the court abused its disc you don't look at it with the same lenses as you would look at an original sentence that bifurcated procedural and substantive reasonable in a standard martin or a question to you though is she understands that part of your argument is that he didn't have to reconsider the thirty  three factors on reasons but it to the extent your argument is that he did nonetheless she is just asking for evidence that he did well we can tell one of the thirty five fifty three factors for instance is the sentence that is available and the court obviously chose under the a a this is the sentence that's now available and we know that the court considered the amended range in this new because it set forth that in the statement of reasons we know that the court considered the parties arguments the defendants twenty two fifty five memorandum discussed the facts of the offense the united states talked about the fact that this defendant by pleading guilty to what everybody thought was an a c c a count a scaped of consecutive consecutive five year sentence on the one twenty four  count and a potential exposure to a drug count which would have had a thirty year maximum so all those factors were before the court and then exercised its discretion to reduce the defendant's sentence to remove the statutory air of a sentence that was in excess of the statutory maximum but to not go further than that and give the defendant basically a windfall to go down even further to this new range on the thirty five fifty three issue that under our cases that a the parties motions and briefs on the twenty two fifty five discussed the factors and then the district court says i've read the parties motions and briefs yes if the court show if the court's order for instance and eggers story the court's order because the parties filings had talked about the thirty five thirty three factors that showed the court's consideration was sufficient now i start with the thirty five eighty two and that's a little different because under thirty five eighty two there is an express director and that granting thirty five each a relief the court must consider the thirty five fifty three factors you don't see that twenty two fifty five it just says the court has discretion to grant an appropriate relief and when the very argument that the  nt made in his twenty to fifty five motion is that my sentence is illegal because it's in excess of the statutory maximum it is not an abuse of discretion for the court to fix that very error and say well now your sentence is not in excess of the statutory maximum but i'm not going to go any further than that i'm not going to start over i'm not going to order a recent and saying i'm not going to have a new p s r i'm not going to take new evidence just like the court of appeals in the joseph case can fashion a limited remand that didn't require the court to entertain arguments about post sentencing rehabilitation the district court when it is fashioning a twenty to fifty five remedy can say this is all i'm going to do i'm not going to go further do we know why the district court varied upward here did he offer any reason  couldn't find it yet i don't think it's express i think it's implicit that everybody knows that the driving force for the district court sentence originally was the defendant's criminal history was the defendant given any opportunity to challenge the wisdom reason he varies are poorly and the defendant is not given the chance to utter one word about it but the defendant actually did have the chance he asked for leave to file a reply in the court and granting leave to reply i warned him that an order could enter you know here's your chance to file a reply and an order could enter without any further proceeding and in his reply he chose instead of talking about the thirty five fifty three factors or even submitting filings that might have shown post sentencing rehabilitation as we often see in thirty five of the two proceedings the defendant instead just insisted on the particular procedure he wanted so he wasn't entitle to that and the district court did not abuse its discretion in granting relief on the record that it had before let me just ask this sort of one more time in this way in jackson we established the proposition i'm quoting from it that quote where the entire sentencing package has not been set aside a correction of a new legal sense does not constitute sentencing requiring the presence of the defended so long as the modification does not make the sentence more onerous now in this case he was convicted of only one hundred twenty two count the district court had sentenced him to one eighty if not the district court essentially set aside what jackson characterized as the entire sentencing package and we send him to one twenty isn't that alteration of the entire package in this case it's not like it was three counts he dumps to one is still there as an anchor there's no anchor all there is the nine twenty two character and he comes up with a complete new sentence on the nine twenty two why isn't that the entire sentencing package being set  aside my time please no it's not the entire sentencing being set aside because the court didn't decide to begin a new it didn't set aside the original p s r it didn't change restitution or forfeiture it changed just the term of imprisonment and there's no reason to adopt a blanket rule that in single count cases courts have no authority to correct a defendant sentence but in multi client count cases courts do that blanket rule has no support in section twenty two fifty five which allows courts to either correct or knows that none of them could be a reading that in a single county i agree there's no holding one way or the other here and furthermore animal take out case if you think for instance of adams where the only remaining count there's nothing in adam's that talks about which are the counts that remain so the defendant had to dig into the district court record to say aha there was this forty eight month sentence that wasn't set aside but there's nothing about the existence of that forty eight month sentence that would have altered the court's authority to reduce the sentence on the two guidelines counts that did change the court could do that and  steps here you first vacate can set aside the judgment that's all twenty to fifty five's then you can correct re sentence so if the government's argument is that there wasn't a big it or that is an error itself there had not your contention is that because they could cure is always step one that necessarily people who sentences are vacated at step one hundred twenty to fifty five always get a recent zinger no not at all the case law in jackson and taylor a clear the rule is when your entire sensing package is set aside and that rule makes sense because the idea is that you are now in the shoes of someone who has never been sentenced before and what about counsel's confess i hadn't thought about this before but what about coun s note there at the end that the restitution wasn't messed around with the no new p s are all that stuff is that part of the sentencing package or are we just talking about a brazen i think this it is part of the sentencing package but it was  reimpose it wasn't it wasn't changed at all the science was vacated a new sentence was reimposed or did but i guess is that somewhat more formalistic than i had thought before if the if you just reimposed the same term of restitution the same you know restitution or a term in the sentence actually i'm don't think mr brown had any restitution i may be incorrect about that but i might have put words in her mouth that i thought that's what she said  understand that a sentence of x period of time in jail is certainly at the got so that a fine would be part of the sentence an order of restitution would be part of the sentence and an order of forfeiture would be part of the sentence right but the p s r itself the investigative report would not be part of the sentence because i think that's a make weight argument but find restitution that stuff would not be right that would that's part of the sentencing perhaps your honor it is was that in this case altered in any way no you are i mean the entire sentence was vacated right but when it was really him when the new sentence was imposed we all agree under twenty two fifty five it is by definition vacate or because that's what car was called and yes your honor so that's easy the sens and we imposes restitution and a fine the same way he had done in round one but comes up with a whole new jail term is that the entire sentencing package see i'm having trouble with th language that we used in in jackson and trying to apply it i think what your honor is asking and forgive me if i'm putting words in your mouth what is a sentencing package and a sensing  a bundle of sanctions typically we talk about sensing packagers in terms of multi count cases one sentence is undone the whole bundle may be undone but colloquially speaking a package can be a single count case taylor makes up one clear the packages a term of imprisonment supervised release the fine restitution that's a package of sanctions and there but what i'm asking about is if he really imposes two of the same sanctions i e restitution in a foreign but comes up with a wholly different scheme for incarceration was the entire package altered or only two important pieces or the entire whenever there's a vacate or and a new sentence is imposed that yields the requirement that the sense that the defendant be present and you're not saying that so somehow you have to tell me when does he get a right to be there constitutionally and when doesn't i see my time's expired you take your time and it's an important point and speaking for myself i'm just looking for some some guidance here because an entire package includes one two three four fifty five step one new sentence i'm correcting you changing it altering it call it what you want and in the process of doing that i'm going to give you a whole new jail term but otherwise i'm not altering the fine the restitution or let's just assume hypothetically the forfeiture the entire package has not been changed to critical pieces have been changed and yet the language appears in jackson where the entire sentencing package has not been set aside a correction of a new legal sentence does not constitute a recent thing requiring the presence of the defendant i'm not sure i find that language helpful is all i'm really trying to say and i'm just looking to have you give me some guidance here a couple points your honor the rule is constitutionally speaking to requirements the entire sentence is vacated and to the court has the discretion to do something so changed doesn't mean the sentence for those or those counties weren't vacated they were vacated they were just reimposed so the entire sentence package was vacated the fact that he got the same penalties interesting i hadn't noticed this before but the they entered a new assessment of one hundred dollars which you know is a district judge every count of conviction you so he got a new assessment  seem he had already been assessed under the old judgment and then the total fine was zero in the total restitution i mean that does that comport with your yes your honor the fact that the court reimpose a hundred dollars special susman i think they would just give him the credit for it for what he already paid previously because by technically breaking the original hundred dollars he would essentially have a credit and then they would take that credit back when there was a post again all right thank you thank you thank you very much you both thank you very much will call the second case which