the morning united states versus mr george the morning your honors please the court my name is gail stage and i represent mr virgil george in this case the court has asked the parties to focus on the united states versus doyle opinion which was issued by this court in may of this year and it relates to the right of allocution we would stand on the arguments made in our brief for the other issues that that we raised on behalf of mr george in this case the district court imposed a sentence upon mr george and in fact recessed the sentencing hearing and after the fact reopen the case and asked mr george if he had anything to say mr george said not at this moment he declined to speak and the sentence was over that was a violation of rule thirty two of the criminal rules of civil procedure and in that rule the court the rule states that before imposing it's a court must permit a defendant to speak or present any information which might mitigate a sentence now the difference between this case and the joy opinion is that in the joy opinion there was no opportunity post imposition of sentencing for the defendant to speak in this case not only was mr george not given an opportunity to allocute prior to the imposition of sentencing but the sentencing was so contained caress that there were things that he probably could have said and would have wanted to say in order to dispel some of the ideas that the district court judge had as an example at some point the district court says that this is page twenty five of docket entry one eighteen which is the sentencing record the judge tells the attorney that he was minimizing the defendant's conduct the defendant could have said judge i take full responsibility for everything that i did another time on page twenty six of the record the court says the biggest mistake to defend it made was taking the stand i watched him testify the judge can infer the opposite of what the defendant's testimony was well defense counsel had to point out the defense never testified in this case so the judge was mistaken image guards to those facts at another point the district court judge said this man's a con man that's a page twenty seven and thinks he can talk his way out of anything he's a consummate b s artist and not a good one he later said he should go in the crooks gallery of inept crooks and again mr george was never given a meaningful opportunity to dispel those notions right after this discussion i want to i want to point out the government was given five a transcript pages to argue why mr george should be sentenced at the top of the guidelines and why he should get the harshest sentence possible in relation to his two counts of conviction altogether it's pretty certainly pre booker and i would argue that gordon is no longer good law especially in the doorbell opinion the eleventh circuit panel recognized that post booker the eleventh circuit has essentially had essentially not changed in regards to the element three of the plane air rule that there was a presumption that that there was a harm to the defend so what the dual opinion of centrally did is that abrogated and if you know how much you rely upon westlaw but if you go to west lot you look at some of the three door opinions out of the eleventh circuit you'll see that presumption and the question is in this case you know was there a presumption when the defendant arguably was allowed to say something and i would argue that no it wasn't meaningful the substance of the rule must be followed not merely the form and even if it's futile even if there's really nothing the defense could have possibly said still the rule must be complied with the mist be given this opportunity and our relief that we're asking for simply  feel i do that the district court just forgot to ask and then try to correct it immediately after you impose sentence because you did ask your client would you like to say press corps well you're right about that but there are two cases from other circuits one from the seventh and one from the tenth which i will file with the court after today's oral argument and in both of those cases the circuits there are published opinions the circuit court said you know how as a defendant to really understand the nuances of being able to argue for a different sentence once they've sat there and heard the sentence imposed upon them you know defendants are familiar with the process the whole point of rule thirty two is for the district court judge to directly address the defendant and say you have an opportunity to change my mind you have an opportunity to impact your sentence that didn't happen in this case in other cases in which the courts have found no presumption there's been the district court resounded the sentence and said ok convince me that i was wrong or the defendant had an opportunity to interact during the hearing but you know the court found that the defendant said enough to try that it was a form valid question we just simply don't have that the defendant did not say a word during sentencing if there no more questions thank you thank all controls this case now your honor i have to respectfully disagree controls cases about remedy whether there needs to be a showing of prejudice produced by the defendant before the can be the discretion of the trial court to give a lower sentence is what booker changed and that's why do i hold that in cases where the trial judge has discretion had discretion to give a lower sentence that you don't need to have been any further showing of prejudice why is your partner saying is ok this presumption are prejudiced but after you've sent somebody if you happen to say ok is there anything you want to say and he says no that  prejudice that's what you're asking us to hole actually your honor i would put it slightly differently in that you ask whether there's been prejudice after you established that there has been a complete violation and what gordon says  s there not a complete violation here when he did not ask because what gordon holds at page eighty two is that if the trial judge asks after sentence is announced and provides an opportunity that in the words of gordon that is an effective cure of the violation the entire purpose of the procedure we have of a trial judge i'll never have to realize in the garden context there mandatory that wasn't a lot of discretion to go chance to allocute plays you're absolutely right you're on eleventh circuit with what the rule requires it's what should happen is pretty basic yes your honor how do you get around you know in between gordon and booker was this case of united states versus proudly two thousand and two the eleventh circuit that's in that the case that really established this presumption of prejudice forgive me your honor perhaps i'm confused my understanding is that produce one of the cases that doyle corrects well it extends right post booker so i think what what the sea change was from booker that led to doyle is to show the effect of the error but i still hold believe your honor that gordon establishes whether a trial judge can and the reason we have the procedure after a judge impose a sentence to say is there any objection is to the manner in which sentence was pronounced is specifically so the trial judges can correct errors like this one on the spot as gordon sa if the judge has already gone through all of his rationale for imposing a certain sentence and then simply after the fact says do you have something to say wouldn't any reasonable person think that the dies been cast the judge didn't say listen i made a mistake i'm taking everything back let's start from where the lawyers ended i'm taking back the sentence please speak if you wish to and then go ahead and do whatever but if you impose a sentence that you're not telling the defendant in that scenario that you're giving him the chance to change his mind how can a defendant know or think that he's got a shot to change anything i think there are going to be hard cases and less hard cases and i think gordon actually shows a harder case than this one as to the futility aspect because there it's very clear th defendant viewed the late opportunities his response when declining the opportunity was what's the point whereas here i don't think it was content chris at all if you look at the last page of the sentencing transcript the defendant's answer is not this moment i'm ok your honor thank you for everything defense counsel then adds thanks for the fair shake that's all we can ask for that's less of a factor of a defendant feeling fud the futility abbott was present in gorton where the former fifth circuit held that nevertheless it was an effective cure and there was no need for remained the cases from the other circuit that counsel is brought up today are also cases where the court specifically points to evidence in the record that show the futility page twelve sixty eight the end there as lopez case says that it was clear that it already been decided that it was futile in lucky the court refers to the fact that the defendant clearly felt that anything he would say at that point would be rule it's ok as opposed to can tank are actually in the rule the point your honor is that judges can cure mistakes that's why we have contemporaneous objections there could be a case there is certainly a scenario where the judge would say you know what i've made up my mind but you go ahead and speak if you want to and that would be a different case but that's not this case judges make mistakes and that's why we have appellate courts but we also have a procedure for the trial judge there on the spot to say do you have any objection to the manner in which sentence was pronounced and the whole purpose of that procedure would be would be defeated i mean there's other than gore do you have any other case you can cite us where the judge in fact ignore the rule to allow allocution prior to that where the judge offers the opportunity to speak at the hearing correct recognizes the mistake and corrects it there on the spot that there would be no need for remaining for resentencing and gordon gives a good explanation for why gordon says at page eighty three that returning from recent unsing here we've all acknowledge he doesn't get to re argue anything he just gets put back in that same position to the same judge who has already announced the sentence i mean he's exactly in the same position before a judge who has announced sentence gordon i'm going to look at you're saying he's already announced sentence and the names that means that the post sentencing allocution offer probably wouldn't have made any difference and yet that's exactly what  consistent with gordon on this point doyle says the remedy is to go back before the judge who has already announced sentence and now have your chance to speak and what gordon says is that the defendant would have no greater opportunity to speak than he's already been to make a statement well i mean i'll act is that correct i'm going to read a little further because i think there is some more to it that weighs on this question what the court said here was i want to make sure i gave the defendant i did ask this was before sentence i did  if the defense or anything further i want to make sure you understood that included the defendant he said it badly he said it incorrectly but when he's explaining to the defendant why he's doing it what he's saying is i want you to understand when i asked before i meant you to and if you and says i want to make sure you understood that that included the defendant if he had anything he wanted to say to me and that's when the defendant says no no thank you your honor so i think what the what the court said here was not the kind of language that would indicate to a defendant that it was futile what he was saying was when i asked before sentence if there was anything further i meant to include you now granted he didn't he said it wrong he violated the requirement of the rule but what gordon says is that is an effective procedure to say you know what i've caught it i'm going to offer you that opportunity now because really what is he being offered by dorio other than the chance for that just rest of the all these thirty five fifty three x factors mean a lot more now than they did at the time and to be able to argue about those not having a decision on all those factors for the defendant speaks materially different than the years of gordon i me it's just a different sense in which everything is different i understand that you're on a by store respectfully think that goes to the prejudice prong and not as to whether the late opportunity of gives the defendant his ample chance to speak to the judge and then this court has recognized that gordon's rushing now continues to make sense the defendant had his opportunity to speak as to what he says and to what factors the judge is considering after hearing that that's what booker and  rationale for doyle led to i understand you have no published presidential opinion though post gordon supports your position i don't believe so you are but gordon remains good law on the circuit and has not been overturned nothing in doria was inconsistent with it well doesn't  were in a different era here well respect for your own i think doyle does it doesn't bring up or mention cures at all so i think the door held can't be read to have overturned gordon if you believe it's in conflict i suppose that's something the full court would have to address but since doyle did not address situations of cure i think that gordon remains binding precedent in the circuit and in that case it holds that that the post announcement cure is effective we believe you