yes for this morning is united states against scott mr mcqua because the district court in this case did not give him a proper and fair hearing after after committing him on his violation of mandatory surprise released to one day time served in another three years of supervised release and the argument your honor is that not only was there procedural error there are worse but in the end this was an altogether bad breakdown of the sentencing process that we have eyler selves in the district court in a criminal case the facts of the case where that mr scott was found in violation by judge the judge for opening up on the line of credit buying a car after that couple of years after some earlier violations had been noted and then just put in the back burner something that no one ever did anything with those yes your honor that's correct i believe there was there were several five other horrifying missions that were put aside after in the context of this particular hearing in which  was two days two days of the hearing and then immediately of the court goes into the sentencing process and as we began so the court never calculates the advisory range under the under chapter seven for revocations of supervised release that's correct there's no acknowledgment and then a stone which there's no background document either that shows that range unless you had all of back to the different violations and twenty fifteen i would agree with the  was referred to specifically were presented to the district court at the time of sentencing i believe there was a prior probation violation with the recommendation with the government's correct that it was five to eleven months incarceration and another three years of violations which i think you have to go back to to get any calculation or failure to make restitution payments failure to notify about a change of residence going notify about an arrest and things of that sort quite  in regards to certain i would call them accusations that he had not been complying with the supervised release and other areas not just this particular violation and the court started to blend in and i concept that he did not want to send mr scott to jail because he wanted to pay the rest ultimately then there was no we didn't begin with an established guideline range we did not get into the aggravation offered by the government an opportunity for mitigation from the defendant's point of view we just had this back and forth which we can decide here and you're saying  no thirty two point one allocution at the end your honor there was none there was no offer that we could piece together this this broken egg at some point to try to get the whole lake but you don't have it but not you basically tried to shut him up right yes as i want to add for the record the lawyer says no and i think that the government's a point of waiver waiving issues and although i don't believe that the right to elocution has the same constitutional gravity of the right as the right to remain silent where the lawyer can't i can't get up there on behalf of my clients that he's not going to testify that much by the court you know understands that's his right i think elocution rubs close to that that there should be a there is an opportunity for him to say what he needs to say on his own behalf even if he disagrees with how counsel may be handling the sensing hearing which in this case also was a bystander he blurts out in the middle of the hearing when the court says i'm not inclined or something to the effect of i'm not inclined to send him back to jail we will will agree to continue with supervised release which i don't believe mr scott was ever asked if that was ok with him and obviously it's not because we're here appealing this the sentencing hearing before this court ultimately your hours as i said nothing was offered from mr scott's point of view in mitigation and he did it his counsel did not interject to get the proceedings back on track the court did not  take care of the opportunities that the court should have been offering it and the sentencing hearing as your your decisions and this court and as the northern northern district district judges have established this process of sensing that we have is very it's very organized it's very controlled and it's a very significant way to practice and it's very valuable that these things are done the way they're supposed to be done and that wasn't done in this case well the rep verification is different than  y sentencing it is and i would object to different standards i agree i agree and i think that it wouldn't be subject to another pre sentence report wouldn't be on behalf of the defendant would be required there are certain i would say it's not as strict or strike it's a more summary proceeding but again the judges is entitled to rely on the presentations of counsel and i don't disagree with that and i think and i see that in your client counsel basically as his agent gave up any allocution right for him in under the and i'm sure that the court sees under the circumstances after reading the hearing understands that when someone says i'm not sentence you to jail sometimes the lawyer thinks that's a very good thing most of us do i would say that's out of the ordinary but that doesn't make that having having given that issue up that's a way for likewise  thirty six months of supervised release calculation under the guidelines that there's no contention that that's an accurate no right not at all it isn't accurate though it is to the point of the day it is because it's too long yes so i would say that the even under a let's when i want to call a lesser standard but lesser scrutiny than it in a motion to revoke sentencing after revocations been made i still the process still has to be available to the defendant to allow himself to present his case in mitigation to ask for a lot lesser sentence than three years and even end don't we have insisted that the court at least signal we've had a couple of cases from central just here bill and i recently declared that the court needs  signal awareness of what the policy statements suggest for punishment i'll say broadly whether it's incarceration time or further supervised release time  after a violation causes revocation and i agree judges that the judge since poser just pull a number out of the hat and i'm not there i agree i agree and i think because of this particular hearing if you would call it in the way it went all our one year three years no protections were were in place and the process what broke down and mr scott's rights to a fair sentencing hearing not a perfect sentencing hearing but any kind of a sentence hearing it didn't happen here and that's the argument and we're asking this court to remand the case for abuse and the lawyer also gave up any affirmatively gave up any challenge to the thirty six months of supervised release i can't disagree with that but i think again i think it's just just somebody it's not a direct appeal right but if if there's any harm here well unless unless it's a forfeiture and not a waiver and i don't think i don't think attorney thanked the court for the opportunity and said that if i don't believe the defendant has anything else he wants to tell the court and then when there was a change of attorneys a couple months later the new attorney said we're not going to challenge anything that happened before  and the first the first time i got up to up was the recency basically giving him the one day time served at that time there was no transcript we had no idea that this process had gone on the way it did there was a motion to reconsider done later after review which those things were challenge and offered right but there was no attempt to reopen the sentencing hearing and have a do over that's good but at this time but i want going back to your original point your honor the fact that counsel i don't believe that judge the judge offered him an opportunity to allocute i believe mr scott wanted to say something his lawyer jumped in the way and then he shut him up didn't and then mr scott didn't see anything i don't believe that was presented to him but you have this opportunity now to say something in your own behalf you can avail it or choose not to that's the proper way to do it and it was all right thank you very much all i think this is a terrible example of sentencing on revocation first of all confuses the underlying reason for the revocation because taking out a line of credit isn't the same thing as failure to make  restitution payments and failure to notify the probation officer there is never any calculation of the policy statements there's carelessness about the length of supervised release leading to this at least one a mistake that's made there is a failure to observe rule thirty two point one b which explicitly says that the court has to give the person an opportunity in this is of course revocation of supervised release this is not original sentencing an opportunity to make a statement and present any information mitigation none of that so i don't consider the whole thing really off the rails let me address each of those concerns in turn with respect to the advisory sentencing guidelines and you raised this a moment ago there was a background report that set forth where when was it prepared and and what underlying offense just a pertain to judge it pertains to different offenses exactly right and they have different some offenses are grade b some are grade c some are grade a maybe if it's luckily the same gra i understand that's your recommendation of a sentence that is not what i'm used to seeing you know some of these things from judge karen we've had recently doesn't say the colosseum statements recommend a we are saying you know you do say we'd like custody of five months and then in terms of supervised release of thirty six months that's a mistake too since it would have to be to thirty six minus five to be thirty one months but i before correct because there are limitations on how much more supervised release can be imposed if there's a term of incarceration and here it could be up to three six months supervised an additional thirty six months  supervised release and that's what it said in the initial report it's what the governor said referencing the fact that the violation was different it still was a guideline see offense and we say that the government made their clear at  seen here in the defendant defense counsel knew their report did not object did not disagree it was correct your honor i'm not sure it was and i'm also very concerned that the judge is just floating around  a year more supervised release three years or more of supervised release the lawyer is shutting his defendant off his cock and client off his clients trying to say something the lawyers interrupting the judge seems to let that happen again have this court approved of in the case united states versus do period i don't think it's a colloquy if what you're getting to is that this was the functional equivalent of allocution i had to completely disagree with you the judge is certainly asking him questions to get in the judge's mind clear what went on but the judge is not giving him the opportunity to say anything he might wish to say there's no open ended what would you like to say in your own behalf court heard in the to bury case and i don't read it that way i guess that's the problem you can stand there and tell me that's what it is but it looked like a q and a to me not at all like an opportunity to present whatever medicating decisions focused on the third factor are we confident that the proceeding was fair had substantially take ok and in this case i submit you can reach that same result but the new you would agree though that the revocation of supervised release rule thirty two point one calls for allocution it's a rule based right i'm not saying it comes from some grand source i agree and that he was not given that so we agree with that and so now we're left with you know what kind of a proceeding to have this one in which we can have confidence and i don't see any place where he's given the equivalent of that right judge again t up when he tries to begin to exercise the act i think your honor with respect to then the defense attorneys thought perhaps correctly that what the defendant might want to offer at this point would not be advantageous to the client that may she that the supreme court's been very clear that people have a personal right to allocute and it's not up to the lawyer to say actually you're just going to hurt yourself the lawyer may have thought that i thought that too and the lawyer may have been right for all i know but it's not pertinent well it's correct again your honor that he was not afforded the right to allocute but what is in the record is a sufficient colloquy discourse exchange of information relating to the thirty five fifty three factors relating to the information that courtney's how there's really no right to allocute in your views songs the judge goes through the thirty five fifty the you know thirty five eighty three all say factors that it doesn't make any difference no judge there is a right to allocute but they're all generals on it forcible though in your view no in my view reports view is that the plane air standard applies in you look at it the in particular the last of those three factors which is looking at the perceived need to we have a sense of fairness integrity substantial justice in on this record you can have that confident the court in gauged in the discourse with the defendant that included information about his employment his financial resources both to support a minor child his ability to make restitution his history of making restitution the fact that he made restitution in some amounts twenty five dollars a week for period of time all of that information was in front of the court in the court considered it said several times the focus in the record mr wyvil no you're going to talk to me first the defendant ok and then mr vigeland i don't believe he has anything else he wants to tell the hart we don't hear from the defendant at that point then the court just stand trouble and he says yes well judge i believe it shows in the record the defense counsel in defendant conferred at that point in then fence counsel said i don't believe he has anything else to add to his you just right  and that was the end of it he had previously explained not again with respect to write a valid q should but as it relates to the advisory sentencing guidelines in the appropriateness of the sentence that the court imposed he had provided asserts now in his reply brief that there are additional things he would have offered in mitigation he doesn't tell us what those are in he had an opportunity judge this was a protracted proceeding as you can tell he had numerous opportunities both before the hearing began to raise questions about the advisory calculation or the sentencing recommendation he had an opportunity he had where where well that's where i'm bothered by the record you say he has all these opportunities from this out of date different offense record that he's supposed to intuit to that the government isn't tailoring its recommendations to the reason for the revocation of supervised release judgments not the government never files anything related to this judge we found the government found in motion setting forth this new ground in sport of revocation of supervised release and that's what the hearing was about we never sought to revoke it based on the of the violations that had led to your earlier report we did not proceed or hearing on those issues credit act right right correct but at the time we filed the motion to revoke with respect to the old meaning of the additional line of credit in january we then had it almost a six month cost five month pause before we started the hearing on june wind in continued it until july sixth injury all of their time period the defendant never raised any question about his understanding of the advisory guideline that applied his understanding of the recommendation and at the time of the sentencing the government made explicitly if we were at joplin that recommendation that had applied to the scene guideline offense level see again it was a violation of supervised release and it wasn't be there wasn't any suggestion of confusion on that score by defendant defense counsel or the court the government represented what it was the government represented it accurately the court understood it was in the court imposed the sentence below the advisory darling reached we advised the court that the lower end of the range was five months of custody and up to thirty six months of supervised release the court listened to the part