good morning everyone and welcome to the th circuit will take the cases in the order on the day sheet the st case for argument is united states versus tommy hansen good morning your honour's john ba ts on behalf of the defendant tommy hanson i'm intending to reserve two minutes for a bottle and to focus on the sentencing arguments in my brief the district court imposed an illegal five year sentence year was in error but both parties agree that we're looking reviewing it for plane error because there was an argument based on the time frame objected to it though we didn't object to it ok i do think even though i raised it for the st time in a reply brief i presented the ex post facto issue i may have gotten the standard of review wrong but i think that is still appropriate given the recent ones circuit case that specifically applied to an overview to an ex post facto violation it's that saying that that should be the standard here but let me ask you my next i would disagree that the judge made it very clear that he would have imposed a twenty year sentence either way and the reason is that the judge was looking at it in the context that the mandatory minimum was twenty years on the supervised release case he believed that there was a five year mandatory minimum in the new case he believes the statutory range is fifteen dollars to forty dollars so when he's talking about the sentencing he goes through it and so he knows that the lowest sentence  he could possibly impose is twenty years and in fact his statement specifically referred to the mandatory minimum any it's it's it's at least very paul's ball that he was targeting or someone in your situation should serve at least fifteen years i think that's reasonable because we're trying to protect the public so it's he were st it amounted to a minimum he refers to a congress that and then and then he says if so  and then the nd point responding to the court's question would be that the precentor port recommended a fifteen year sentence in the new case and the court on the next page and accept a record twenty nine refers to following the present report which recommended fifteen years in the new case to run consecutive to the sentence according to post and the other case i don't  he says i think it twenty years and says this issue have been not greater than necessary just as five years and singles and he says the way i get there because i have to follow the legal framework is s and he explains how he's putting it together  again it's in the context of him knowing that the twenty years the mandatory minimum sentence he might have very well said the same thing if you thought the matter to a minimum with seventeen years we need a hefty sentence to two to punish him to take bundles well it seems to me that based on what you're just argued and based on how you've responded to judge questions that the court was saying i'm going to give fifteen years and i'm going to give a mandatory minimum on the nd part whatever it is and if it had been two to got seventy five dollars you got fifteen but then are we saying that this is a packaged or a bundled say well i think the judge not the judge did make some comments that the that he was concerning the two sentences together needed and if it's a packaged or bundles sentence do we have any precedent in this circuit that suggests one can impose a packaged or bundled sentence for a new  that found in fairly similar circumstances where the court imposed a thirty three month sentence on a supervised release violation where the maximum was twenty four months and the defendant had challenge the conviction in the the new case and it reversed and vacated the sentence in the old case but affirmed in the new one ok that would be my position under specially because of the cross appeal role cing bundle packages no there is no reason for the government to appeal a fund a packaged or bundled sentance and so if it's a package or bundle sentence the government would have to pay a little as well because i think my position would you should look at the two sentences separately well i understand you want to do that but i'm suggesting even with your argument to judge it gooda that this is a part of a package store bundled sentence and if it's a parakeet or bottle sentence then the government would need to appeal and if in fact there's an error then we'd send everything back to the district judge to redo let me just add on is there a case that would preclude us from doing that when i looked at the cases and what our authority was with the reasoning was when i got up after the initial cases it was this is a practical approach there was no authority that was listed so if we thought it was practical to do they have there's nothing that stops us that you're aware of no there is some another policy consideration i think it may deter defendants to have two cases to actually exercise their right to appeal you touch on the a lean issue because we do have a jury verdict here that found the basis for the supervised release revocation which then triggered the statutory punishment only i was thinking about the only thing that's on the all case there may be an additional element that the defendant had to commit the new offense while on supervised release there's no jury finding as to that alan but you made a double jeopardy argument  it seems to me that our case law says that when a defendant commits a supervised release violation he's actually breaching the trust that the court has imposed upon him and that's a separate justification for sending him back to prison without regard to the punishment that will be imposed upon him for the subsequent that's that's true i think that haman decision somewhat undercuts that and that now is looking at the he thirty five a week a five year sentence for a new offense to actually be part of a new punishment that puts the six in th amendment implications into play if you could it seems to me then based on your argument it would be totally makes sense to send all this back to the district court because it's a packaged bundle sentence and because then the district court could consider the argument you want to make and it poses whatever sentence the district court would want to impose they're after could the district for code court impose up to a seventeen year sentence or up to a twenty years based on what the president is  talking about the president we have in greenwich as well as other places how high could the sentence go that's an interesting question i want to do you're in i think our position would be the lower the number would be the max why maybe you're i maybe that may be your preference but what case says that the best that we can give the district court could give your client is seventeen years because i couldn't find one so i could find maybe green which says could be twenty years but maybe it doesn't so i'm asking your input and a case which  support that and i don't have any case law that would directly on point i do think you know there's a general approach presumption against vindictive sentencing against increasing the sentences and the question would be that it is that you look at the two sentences together or individually but i thought we had case law that said that you can't enhanced a protect your client in response to judge smith's question from getting more on the other count of conviction than what the district court imposed the st time around i think that was the argument yes greenlaw doesn't really say that that's the question i mean if it's a sentencing package the judge then has a right to look at everything again and i'm still i mean i can see what judge tallman saying as it relates to vindictiveness that may be of issue but other than vindictiveness i don't see how greenlaw suggests that the judge just way stay at seventeen why can't they get up to twenty why not more clear at sentencing that it viewed this as a package deal it viewed twenty years as the overall appropriate sentence and considered all of the section three thousand five hundred and fifty three a factors relevant to that what if i don't agree well if i don't agree that the district court said it was going to do twenty years what if i say the district court didn't say that all this record said we're going to give him fifteen years and whatever is the excess that i have to impose and so therefore for this to it would be seventeen but because nobody told him it was too it was twenty well as it seemed to me that this transcript is so crystal clear that that's exactly that he wanted twenty well i think there are two risk where in the transcript is it so clear that he absolutely wanted twenty instead of fifteen plus whatever was the excess well i think at pages twenty eight and twenty nine this is where the district court notices this and it's your best well but i think it's important to remember that the district court had just gone through a lengthy discussion of the three thousand five hundred and fifty three dollars a factors and it then can said that it viewed the overall sentence for the two matters the revocation matter and the criminal matter the overall sentence is twenty years and it's thought that was the reason it was twenty years is because he thought there were mandatory things that he had to as to fifteen and five if he had known fifteen and two he would have been saying twenty years at all well i think fifteen is not mandatory for the criminal offense that is the minimum but we could give him plenty of really way on the fifteen but what about the two or five i think that that is that is our overarching point had that had this error been raised at the time all the district court would have had to say was ok well then i'll are you and the district court bound by the fifteen year sentence imposed for that count of conviction so that at best henri mann the district court could impose an additional two years for the th sentence on the criminal case just as he did in the revocation matter or a right the conviction on the underlying offense correct and the sentence has been appealed no he didn't make an argument in his opening brief but the cross appeal rule does not require the government to cross appeal from a judgment that it agrees with especially when the defendant has already noticed an appeal from that judge i'm also wondering if you would appeal well the appeal would be you would have to defendant is saying is the government should have crossed appeal from a judgment that it agreed with that the defendant had already noticed in the people from so was already going to be before the court in order to preserve its ability to make an argument in defense of the overall sentence in response to an argument that wasn't raised until he filed his opening brief long after the time for cross appealing had passed that doesn't make much sense but it also is not fair to the district court because as we've explained the district court went to great remand we think that that would be the appropriate result because otherwise what the defendant is saying is had had he raised this in a timely fashion the district court could have fixed but by not raising it in a timely fashion by raising it late he has somehow prevented the district court from doing that and he gets a windfall by having three years knocked off with his sentence but how is that fair if the defendant didn't challenge the fifteen year sentence that he got the  count to come back and increase that sentence to eighteen in order to achieve the twenty year sentence on the side on the appeal that that's what's bothering me well i think couple of answers judge  more than fifteen years on the substantive count but i think that i actually think that would be unfair because we know that the total term that has been sentenced to is twenty years and one of the main reasons that the district court imposes that sentence is because it is squarely within the middle of the guidelines range for his criminal punished for his criminal conviction that what you're trying to do is the problem the problem is if this is a day seven package and there for fifteen years is going to stand we could send the two years we could send the excess back for another sentence and that would be what the defendant would be asking so you've got to argue that sentence a package if we find it is in the sentencing package then you didn't appeal anything and then we'd have to come along and say well we'll excuse the fact they didn't well because this is a little big us so excuse that in order to get to where you're going that we would abbott twenty years to look at otherwise if this isn't a sentencing package and you didn't appeal then we so in our sensing packaging cases the the other counts as and says on the other counts were not appealed isn't that right it just leaves a k did everything that somehow we thought we have the authority to do so but there's a long line of cases  we just vacated the fences on all the other counts that were not appealed and said that for the court to do a complete sentences and yes that i mean that is the standard practice in courts of appeals throughout the country it is the practice that the court the supreme court indorsed in greenlawn and they're the court i think in this is important for this case the court explain that when the government is not seeking to expand the overall sentence that the defendant has received it's not trying to keep the defendant in prison longer than he would be under the sentence he currently has then there's no need to cross appeal because the government isn't trying to expand its rights here he's going to serve twenty years in prison we are saying that he should remain continue to serve twenty years in prison even if this error is corrected before the district court the only way you get there is by changing the sentence on the substantive count that that's right if that's right and i think yes that that is what happens but but the reason judge holman that we can get pathetically so that we're not talking and theoretically here i just had one of the sentencing cases on a prior calendar and there were four counts of conviction and the district court imposed concurrent sentences on all four counts but they were for the same amount of time and the defendant successfully challenged one or two of the four counts and so we re mandated to permit the district court to conduct on an open record a new sentencing with a lower sentence on the two counts that the defendant had successfully convinced of was error in that case the district court could clearly impose the same sentence of thirty years because there was no attack on the other two counts for which concurrent sentences were imposed but this is different i mean typically a sentencing bundling involves multiple counts of say of a drug conviction here we have a substantive violation the nd c p account and for convenience the district court consolidated the sentencing involving the supervised release violation and it seems to me that that's different from the typical sentencing bundling i see my red light is on the what do you have a case that's you know that it's actually just didn't seem bundling well candidly we have not found a case that addresses precisely this circumstance there are obviously a number of cases dealing with sentencing package issues in general and we think that the same principles apply here  now what the supreme court has said what you're really saying just so i understand there is no precedent for suggesting that this is a sentence package when it has to do with a sentence bundled right well there is no case saying that that cannot be bundled in in fact to those who want to change but i understand you want to change what i said is there a question is there is no case they can be bundled now we're looking at the circumstances of this particular case and reading what the judge said right to determine whether he really bundled it or not that's correct now and at that point we have to read the transcript and  we there i have to buy your idea that that he always wanted twenty years but supposing we don't buy that idea supposing we buy the idea he wanted fifteen years and whatever the excess was then at that point are fifteen years max on that child pornography conviction which would be a substantial downward departure from the guidelines reign margaret all that's what that that it but that's right we don't he's giving fifteen years that's right but i think you would have to then take into account the fact that he thought that there was this other sentence that was going to be added to it that would then bring him within the guidelines range however what i would note is pardon for interruption but you're overlooking the fact that a violation of supervised release doesn't even have to be a crime i mean you could be punishing the defendant because he associated with known felons inviolate rect terms and to my way of thinking that's a different animal than bundling counts of conviction for criminal violations in one sense and well i think i think it's entirely true that that it does not have to be a crime but i think where it is a crime and where the defendant has been separately charged and convicted of that offense it is not at all uncommon for courts to view these as part of the same overall sentence and that's because the criminal conviction is in fact what triggers  i not correct the sensing guidelines don't even apply to supervise really that's correct so you're you're trying to engraft our criminal case law interpretating sentencing guidelines in bundled cases where the guidelines do apply to each count to a supervised release violation that happens to be sentenced at the same time that we're sentencing a count of conviction which is covered by the sensing god i don't think so judge tom and i think what we're saying is that when a district court has multiple things before it and this is actually analogous to the supreme court's recent decision in dean which involved a nine hundred and twenty four c consecutive sentence and a sentence on the underlying count when the court has two different things before it and it needs to decide what should the overall sentence for these be it can consider both of the sentences that it's going to be imposing in deciding what is the appropriate sentence overall and that is all the district court did here now if the court is concerned the judgments go into your question if the court is concerned that perhaps the district court thought that really fifteen years was the only appropriate sentence for the criminal conviction and then whatever else was added on  that would be appropriate no matter what that amount was i think the appropriate result at that point is to send it back so that the district court can tell us if in fact that is what he thought and the appropriate way to do that is simply to send it back so that the district  can reconsidered sentencing package and determine whether in fact that is what it wanted to do this court can do that because mr hanson has appealed from both judgments they're both properly before the court today there would be no  inaccuracy in proceeding in that manner and so that is what we think should happen if the court decides that it should be remanded thank you thank you give you and it all thank you i just want to respond to the point that the courts have put any significance at all in the fact that the nose of appeal checked the box for conviction and sentence you know no some appeals are filed before an attorney has a chance to review the record i was generally taught to always check both and from my memory whenever i actually research this before there is no significance to the fact that one or the other boxes checked and in fact even if you just checked your peeling the sentence you could still go back in your briefs and appeal the conviction and still do that so it doesn't provide any notice to the government that we were appealing the sentence and the fact that you didn't brief or raise that issue in your opening brief