Legal Case Summary

. That is clearly indicated in the pre-sentence report. The government did not challenge an object to that. Also the defendant, at the time was 18 years of age. And he was probably maybe a year or two older than his accomplices. But the point is he was not convicted of a prior robbery or any destruction of property. And he was given community service. He didn't complete all of his community service. He did some of it. Let's say the community service was probably about 210 and he probably did 57 short of it. But he was not held in contempt by the superior court. We have no information before this court to speculate or I shall say to conclude why he did not complete his community service. I think the thing that got Judge Gomez particularly, that was the catalyst for most of the upwards. The second time your client was involved with a minor. Now I don't know here what the role of the minor was

. The only evidence I can see or even allegation in the record is that after the robbery, the minor who was KC received either $6,000 or half the proceeds. It's unclear which one it is. But your client pled guilty to aiding and abetting the commission of a robbery. That is correct. Who aided and abetted. Who was he aiding and abetting in the commission of a robbery? JC? A KC? Well it's a legend. And what did KC do? Because I do not see as a matter of evidence in this record. And if it's not in this record, I don't know where the district court came to the conclusion that he had involved a minor in in the court. And that was the nature of my thought argument because the record shows that my client split the money in half. The presendence report says after the robbery and co-defending Cruz got $6,000. She was the bantella that told him when to come. The presendence report claimed any case that it was my client in broad daylight approached the ladies who was going to the ATM machine, grabbed the bag and ran off. What did KC do in this? The only thing I know is at some point KC got one half the proceeds and some of the vehicles were put, two of the vehicles were on the drain with him. It tells me that this individual may be 21 years of age but has a mentality of a minor

. Well, your brief highlighted the fact that the minor was not involved in the robbery. But you didn't highlight at sentencing, you didn't make that claim. And there seemed to be a consensus at sentencing that the minor was relevant to the robbery. It was involved in the robbery. And I think that played a big part in the district judge's decision. Because when we look at the nature of the judge, the minor was involved with your client in the robbery. I don't have any other information to admit in the late night. All I know is that a minor after the fact got some of the money. But what you do to aiding a bad deal with KC? The commission of a robbery. That is correct. You have to admit somebody and the only somebody. Well, it could have been aiding and a betting the bank teller, I suppose. But a bank teller was not charging for one. I don't believe it

. But I said to you, I said to you, no objection. It was a consensus that your client was involved with the minor. You didn't object to that. I did not object to that. I couldn't object to that because I did not deny it. In the discovery, it was given information that he gave KC some of the money. But I said he was not charged with conspiracy. We appreciate it. Just aiding an a betting. Was it accessory after the fact that he gave KC some of the money? Well, he said there's nothing to indicate. He just gave two amounts of goodness of his heart. Well, they go to his state of mind. That's what he is really an adult. Or whether he has a mentality of a minor himself

. But why is wrong with the district judge for purposes of 3552? It's a 3552, yeah. A 503. A tagging in the consideration that he was leading this minor assray in his criminal activities. Because you have to speculate to having specific facts to result conclusion. And that is a problem. Is it a reasonable, is it a reasonable inference that a district judge could make? No, it was not a reasonable inference because there's no facts to support it. I suppose one can say, now I'll go the other way now. One can say that it's really not speculation if indeed the thought or the belief is not challenged. Well, I can assume then that the minor was involved in the robbery because that was not challenged before the district court. Because it was vague, but enough to conclude that since the minor got the money, I had no reason or basis to challenge whether he was involved when the facts is clear that the minor got some of the money. But for me to speculate as to, he did not do it, he did not, all I know for sure there was no guns involved. The minor did not grab the money, the minor didn't drive any go-a-wik, any get away vehicle. But the minor got some of the money and if Mr. Jomie Willow was a cleaner idiot, I can't

... I'm not saying you didn't deny that the minor was involved. You didn't deny it. I could not deny it, but I'm saying to the extent of his involvement, you got to speculate. Well, you have a long time reserved on rebuttal, we'll get you back. Thank you. Mr. Potter. Please the court, good morning, ever a part of the United States. The sentence in judge gave the appellant Mr. Williams. Five years for committing a brazen daylight wrap of a teller, she was walking to replenish a back machine. And all the facts that were before the sentence in judge, that sentence of five years was indeed a reasonable sentence

. What facts in the record here justify a sentence twice as heavy as suggested by the guidelines? What facts in the record demand that type of punitive sentence? The facts in the record judge is many facts that this was Mr. William's second offense involved in a juvenile. That in the first offense that he was convicted of when he was a bit younger, he was given a sentence of probation, community service that he did not complete. The court looked at the history and characteristics of this defendant and found him walking to be frank with the court. The judge felt the need to have Mr. Williams or to detour any future crimes committed by this defendant. And the imposition of a five-year sentence goes directly to the court's belief that this young man was out of control. Not only that judge, but in sentence and Mr. Williams, the court found that Mr. Williams had no respect for the law. And he had no respect for the law in that this is the second time before the court. The second time before the court for the very same nature of the offense that he previously committed when he was 18 or 19 years old. And now here he is again back in front of this court for the same type of offense using a minor again. We're using a minor

. I don't know if there's any support for using a minor. Well, having a minor involved in the offense. And I heard the question posed to Mr. Hard just to what role did this minor play? And to be frank, the evidence before the sentence in judge, when the issue of the defendant, when an issue of Mr. Williams using a minor came up, there was no objection for Mr. Williams. And there was no objection because the facts was clear. The P-Senders Report gave Mr. Williams a two-level enhancement for involving a minor. Involving a minor. I do make a distinction, but maybe it's too fine or distinction, and I could be wrong. A minor was involved. Who involved who? We don't know. I don't know. Well, the testimony, the one Mr. Williams, and the Q-Ted at sentencing. He indicated that he planned the rap. There's no dispute in that. There's no dispute that he got the minor involved in this rap. And if that was a big issue before the court, surely Mr. Williams, his attorneys would have jumped up and said, no, you're on it, that is not the case, that is not what happened in this case. Let's return to the 3553A factors because the judge gave a substantial upward variance here. I mean, doubled the top of the guideline range. Do you think the reasons that he gave would support such an enhancement? He mentions respect for the law over and over, and he mentions the same type of offense involving a minor over and over. But there wasn't an awful lot of analysis here, was there? I guarantee that judge, the public was not a whole lot of analysis that the court did. But they still did. The evidence before the court did show that this defendant had no respect for the law. This was his second time back, same type of offense, minor involved, robbery involved

. Well, the testimony, the one Mr. Williams, and the Q-Ted at sentencing. He indicated that he planned the rap. There's no dispute in that. There's no dispute that he got the minor involved in this rap. And if that was a big issue before the court, surely Mr. Williams, his attorneys would have jumped up and said, no, you're on it, that is not the case, that is not what happened in this case. Let's return to the 3553A factors because the judge gave a substantial upward variance here. I mean, doubled the top of the guideline range. Do you think the reasons that he gave would support such an enhancement? He mentions respect for the law over and over, and he mentions the same type of offense involving a minor over and over. But there wasn't an awful lot of analysis here, was there? I guarantee that judge, the public was not a whole lot of analysis that the court did. But they still did. The evidence before the court did show that this defendant had no respect for the law. This was his second time back, same type of offense, minor involved, robbery involved. So, clearly this court had something to go on when it made the determination that this defendant had no respect for the law. And also the seriousness of the offense. Again, it was delayed, robbery, $105,000. Because clearly when the court looked at that also, the court considered a nature of that. It's a little different than breaking into a store when there's nobody there in the middle of the night and rifling through the cash register. It is a bit different, but the nature of the offense is still the same. It involves getting something for nothing. It's trying to get money, trying to get property that does not belong to you. And the defendant committed that offense, and here he is now committing a similar offense, arguably a more advanced, a more sophisticated offense. The court obviously put great value in that and taught that the punishment metered out to the defendant was reasonable. And again, given the facts, I don't think it would not be reasonable at all. Should the court be considering the leniency of a potential sentence in comparison to the statutory maximum, which he did in this case? Well, I think the court did. I never saw it done before by the court. Well, obviously the judge taught that the guidelines were inadequate to address this defendant and look to the statute

. So, clearly this court had something to go on when it made the determination that this defendant had no respect for the law. And also the seriousness of the offense. Again, it was delayed, robbery, $105,000. Because clearly when the court looked at that also, the court considered a nature of that. It's a little different than breaking into a store when there's nobody there in the middle of the night and rifling through the cash register. It is a bit different, but the nature of the offense is still the same. It involves getting something for nothing. It's trying to get money, trying to get property that does not belong to you. And the defendant committed that offense, and here he is now committing a similar offense, arguably a more advanced, a more sophisticated offense. The court obviously put great value in that and taught that the punishment metered out to the defendant was reasonable. And again, given the facts, I don't think it would not be reasonable at all. Should the court be considering the leniency of a potential sentence in comparison to the statutory maximum, which he did in this case? Well, I think the court did. I never saw it done before by the court. Well, obviously the judge taught that the guidelines were inadequate to address this defendant and look to the statute. And why I'm sorry to look towards the statute. Look at the statutory maximum. Yes, but I've never seen and thought it was lenient in terms of what the statutory maximum is. Is that a little cackeye? Well, I was, it was cackeye, and I think that this citizen judge had this defendant in front of him and he really wanted to express to this defendant. He claimed everyone's of his will and he didn't find that the citizen guidelines adequately addressed that. He looked at the 3553 considerations. He did his analysis and the sentence that he came down with happened to be one half what the statutory maximum sentence would have been. Again, what the court unreasonable in each and all conclusion. Again, I think based on the facts of this case, based on his history, based on his obvious disrespect for the law, the court was reasonable in coming to the conclusion of five years of sufficient. Well, you have to acknowledge that any violation of the law shows this respect of law of the criminal law. Is that correct? This is true. So, so what you're trying to tell us, you think we should uphold the sense because there was disrespect for the law which there is in every criminal sense and this was done before. So that's what you're facing your argument on. No, this is better than the mind of someone who has involved

. And why I'm sorry to look towards the statute. Look at the statutory maximum. Yes, but I've never seen and thought it was lenient in terms of what the statutory maximum is. Is that a little cackeye? Well, I was, it was cackeye, and I think that this citizen judge had this defendant in front of him and he really wanted to express to this defendant. He claimed everyone's of his will and he didn't find that the citizen guidelines adequately addressed that. He looked at the 3553 considerations. He did his analysis and the sentence that he came down with happened to be one half what the statutory maximum sentence would have been. Again, what the court unreasonable in each and all conclusion. Again, I think based on the facts of this case, based on his history, based on his obvious disrespect for the law, the court was reasonable in coming to the conclusion of five years of sufficient. Well, you have to acknowledge that any violation of the law shows this respect of law of the criminal law. Is that correct? This is true. So, so what you're trying to tell us, you think we should uphold the sense because there was disrespect for the law which there is in every criminal sense and this was done before. So that's what you're facing your argument on. No, this is better than the mind of someone who has involved. We don't know really how. And that's your best bet. That's your, that's your longest and strongest suit that's being said, bridge. Well, not, not solely that the defendant showed this disrespect for the law by breaking by Robin the back on this day, but that this defendant showed this respect for the law, but even when he was sentenced for his previous offense. And the law said this is what you must do as a consequence of your being convicted of that previous offense that this defendant did not do it. And the judge, that may have stuck in the judges' cross to speak. And the judge said, well, he had an opportunity. He was given a lenient sentence. He did absolutely nothing to prove to the court or to anyone else that he took the situation that he was in seriously. That I think is the biggest issue that the court was focusing on, what was focusing on when it said shows disrespect for the law. Okay, so I see, so your best argument for affirming this as far as I could see is that he did it before. He did it this time. Any two time losers entitled to double a guideline sense. No, no, let me rephrase brother Collins best argument

. We don't know really how. And that's your best bet. That's your, that's your longest and strongest suit that's being said, bridge. Well, not, not solely that the defendant showed this disrespect for the law by breaking by Robin the back on this day, but that this defendant showed this respect for the law, but even when he was sentenced for his previous offense. And the law said this is what you must do as a consequence of your being convicted of that previous offense that this defendant did not do it. And the judge, that may have stuck in the judges' cross to speak. And the judge said, well, he had an opportunity. He was given a lenient sentence. He did absolutely nothing to prove to the court or to anyone else that he took the situation that he was in seriously. That I think is the biggest issue that the court was focusing on, what was focusing on when it said shows disrespect for the law. Okay, so I see, so your best argument for affirming this as far as I could see is that he did it before. He did it this time. Any two time losers entitled to double a guideline sense. No, no, let me rephrase brother Collins best argument. Let's say perhaps the best argument would be that the district judge carefully considered all the facts of the offense and the characteristics of the defense. And what had happened here and what had happened before gave a close consideration and then determined the appropriate sentence and the sentence with both substance, and procedurally reasonable. That's your best argument, isn't it? That is the best argument. I thought so. I don't know if I accepted, but I thought it was phrased nicer than judge Collins. I was exactly what the judge did. Again, judges might disagree. My friends, some judges that may say, well, he should have given them 50 months or 40 months or he should not have gone beyond the guidelines of 30 months. But this judge was in a unique position to assess this defendant and he did so. And he did so by addressing the 353 factors. Yes, the argument could be made that maybe he could have been more in depth and go more in depth, but he touched and the issue sufficiently to give a clear indication as to where he was going and what caused him to come squared down and this 60 month. And that's most of what we can actually judge to do. That's exactly what the judge did in this. Thank you, Mr

. Let's say perhaps the best argument would be that the district judge carefully considered all the facts of the offense and the characteristics of the defense. And what had happened here and what had happened before gave a close consideration and then determined the appropriate sentence and the sentence with both substance, and procedurally reasonable. That's your best argument, isn't it? That is the best argument. I thought so. I don't know if I accepted, but I thought it was phrased nicer than judge Collins. I was exactly what the judge did. Again, judges might disagree. My friends, some judges that may say, well, he should have given them 50 months or 40 months or he should not have gone beyond the guidelines of 30 months. But this judge was in a unique position to assess this defendant and he did so. And he did so by addressing the 353 factors. Yes, the argument could be made that maybe he could have been more in depth and go more in depth, but he touched and the issue sufficiently to give a clear indication as to where he was going and what caused him to come squared down and this 60 month. And that's most of what we can actually judge to do. That's exactly what the judge did in this. Thank you, Mr. Hart. Mr. Hart, your bottle. First of all, I will have to disagree with the government's conclusion that the judge was in a unique position and that he should be giving difference because first of all, there wasn't a trial on the merits. There was no trial. There was no suppression hearing. The plea was not taken by the judge. It was taken by the magistrate. The probation officer didn't take the stand. So that judge, the trial judge, was in no more of a position than this appellate body. The same information this court has. It's the same information the trial judge had. So I don't see a case where. What is our standard of review? For abuse of discretion

. Hart. Mr. Hart, your bottle. First of all, I will have to disagree with the government's conclusion that the judge was in a unique position and that he should be giving difference because first of all, there wasn't a trial on the merits. There was no trial. There was no suppression hearing. The plea was not taken by the judge. It was taken by the magistrate. The probation officer didn't take the stand. So that judge, the trial judge, was in no more of a position than this appellate body. The same information this court has. It's the same information the trial judge had. So I don't see a case where. What is our standard of review? For abuse of discretion. And I believed clearly that the judge here has abused his discretion in the sense that number one. Everything that the judge had considered for enhancement had already been considered by the sentencing guidelines. The $105,000 that was stolen cause an eight level enhancement. The age of the trial, I mean the the minor, mean involved. That was an additional two levels enhancement. The fact that there was a prior conviction that is recognized in the criminal history category or he's very many in the criminal history category of one. The issue as a well and that my client had a prior conviction for robbery that is not correct. He only has a prior conviction for destruction of property. There is no evidence of my client plan anything with Mr with with Casey the evidence is he planned with cruise Maria Cruz and what is. What was before the court that is not mentioned in the brief is Maria Cruz and the defendant the appellant Mr. Williams lived together in the same household and it was. Cruz sister that got the baby for a German Williams and it was true sister. It was a true herself that work at the bank and told Mr. Williams went to go and what time and at that time Mr

. And I believed clearly that the judge here has abused his discretion in the sense that number one. Everything that the judge had considered for enhancement had already been considered by the sentencing guidelines. The $105,000 that was stolen cause an eight level enhancement. The age of the trial, I mean the the minor, mean involved. That was an additional two levels enhancement. The fact that there was a prior conviction that is recognized in the criminal history category or he's very many in the criminal history category of one. The issue as a well and that my client had a prior conviction for robbery that is not correct. He only has a prior conviction for destruction of property. There is no evidence of my client plan anything with Mr with with Casey the evidence is he planned with cruise Maria Cruz and what is. What was before the court that is not mentioned in the brief is Maria Cruz and the defendant the appellant Mr. Williams lived together in the same household and it was. Cruz sister that got the baby for a German Williams and it was true sister. It was a true herself that work at the bank and told Mr. Williams went to go and what time and at that time Mr. Williams was unemployed. So did you represent Mr. Williams in his prior offense? No that was in the superior court. I was appointed in the district court. I don't know the particulars other than what is in the precincts and support. So he was before a state judge and in the state judge was lenient with him and why I guess what I'm struggling with in your position is I assume you don't complain when your client gets a lenient. That's a good thing. But I complain when is unfair though. Well just stay with me for a minute when your client gets a lenient sentence you don't jump up and down and say well this is more lenient than the gurus who put together sentencing guidelines would believe. And if a judge has a right I mean I was a trial judge colleagues were we we know what it's like to impose a lenient sentence particularly with the first time offender nothing wrong with that makes sense I think to most people but why doesn't it make sense that when you're lenient with someone and then when that a matter of few years they come back and betray that leniency in such a bold brazen manner as this case that the judge doesn't go in the end. So the opposite direction is this trial judge did here why isn't that perfectly common senseical and reasonable because it wasn't that this particular judge who had been lenient with him in the first place. But he knows another one of his colleagues was lenient with him I mean that's a fact and not only was he lenient with him he gave him a slap on the wrist and your client threw it away he didn't even do the 150 hours of community service he was supposed to do. He only did one third of what he was supposed to do. Why can't this judge take that into consideration

. Williams was unemployed. So did you represent Mr. Williams in his prior offense? No that was in the superior court. I was appointed in the district court. I don't know the particulars other than what is in the precincts and support. So he was before a state judge and in the state judge was lenient with him and why I guess what I'm struggling with in your position is I assume you don't complain when your client gets a lenient. That's a good thing. But I complain when is unfair though. Well just stay with me for a minute when your client gets a lenient sentence you don't jump up and down and say well this is more lenient than the gurus who put together sentencing guidelines would believe. And if a judge has a right I mean I was a trial judge colleagues were we we know what it's like to impose a lenient sentence particularly with the first time offender nothing wrong with that makes sense I think to most people but why doesn't it make sense that when you're lenient with someone and then when that a matter of few years they come back and betray that leniency in such a bold brazen manner as this case that the judge doesn't go in the end. So the opposite direction is this trial judge did here why isn't that perfectly common senseical and reasonable because it wasn't that this particular judge who had been lenient with him in the first place. But he knows another one of his colleagues was lenient with him I mean that's a fact and not only was he lenient with him he gave him a slap on the wrist and your client threw it away he didn't even do the 150 hours of community service he was supposed to do. He only did one third of what he was supposed to do. Why can't this judge take that into consideration. Because this judge doesn't know all the facts are so why the first judge didn't let hold my client in contempt. The first judge he perhaps was able to gather enough information about his client to realize that he is not as mature or developed mentally as he should be for his age he may be 21 in number maybe 12 in fact. We don't know we can only speculate as to why the first trial ended in the first conviction in the second year. But if his immatureity prevents him from conforming his conduct to the law all the more reason why an extended sentence is necessary. I'm saying that my charity should be taken into consideration when you speak about him can concern him with a minor to commit an offense and you shall also take into consideration that there was no weapon involved. I think what is really happening here is a dilution of the sentence in process. I think we are going back to how it was before 1987. If the Supreme Court says that the sentence in guidelines is advisory and then it comes along and says in God that the difference should be given to the sentence in judge. But the sentence in judge should look at the various factors to support the recommendations of counsel whether it be defense counsel or the government and the government didn't the court didn't follow the the sentence in guidelines didn't take the recommendation of defense counsel not the government. I think the government sometimes thinks they control sentencing but I think we beg the different the judges in charge of the sentence. Yes but I am saying all of this is safe that perhaps this is a test case for every judge to know say as long as they give some reasonable basis whether or not they are political degrees with me or not as long as they make some degree of sense then I don't care what the government attorney says and I don't care what advice. The guidelines is not what this case is really about the president is going to set to ignore everybody and decide as you please like how it was for the same reason where the sentence in guidelines was put into place. This case was said back to 1986, 1886. I think you make an excellent argument but the fact is we just decided the Tom co case and he got a 100% downward variance and we have held that in Gaul pretty high level drug dealing the guy was looking at 40 plus months I think 40 to 48 months he got straight probation Supreme Court said that's fine

. So I think your point has a lot of intellectual force that we are going back but we may disagree as to whether the Supreme Court is telling us to go back or how far to go back. I did also argue that there was something unique happening in my client's life he got a baby what you know he is lady got a newborn baby and he spent all his time babysitting from the court. So I think the time he was released up to the time of sentencing and that child had an impact in his life and I argued to the court that rehabilitation doesn't necessarily begin from the time you're physically behind a stone wall call a cell sometimes it begins when you start seeing things differently have an opportunity to see what you're losing. He had a newborn baby a daughter at the time of sentencing she was eight months and I think that that tool could have been a rational basis for the court to stay within the range of the government recommended. Thank you. Thank you very much the case was well argued we will take it under advisement