case after this court's initial remained where mr woodside was denied the right to be present the right to have an attorney present at a recent scene hearing in violation of criminal forty three to address and i think it's appropriate probably makes most sense for for me to address both the first and second assignments very together because they go hand in hand the second being that the court did not state its reasons and open open court in violation of eighteen u s c thirty five fifty three c would it make sense for him to have the answers made in open court if if you lost on the first part of that that he wasn't ti and then you say there's also a right under thirty five fifty three c to be in open court when the decision is made i'm saying assume you lose on the first one doesn't the second one sort of fall away at that point i when there's nothing else being done other than reading it well that's i'd give a greater explanation that if you just issue it i think it gives the opportunity for counsel if counsel is present with the defendant to make the appropriate arguments with regards to that assumes that there's some kind of hearing right which i'm hypothesizing doesn't exist if they don't have a right to a hearing could it be that the law requires that that  be read in open court when there's nothing else to be done that makes sense so really gets back to whether hearing whether you we will you need a sentencing hearing doesn't i would agree yes ok thank you it was us that this was not a general resentencing it was a limited this court directed to remain backdown i think it was limited certainly in scope and want to put my reply brief was that it was limited in scope but in application it wasn't as limited as it appeared especially because the court never in the first instance made the findings with regards to the scope of jointly undertaken activity so that was really never adequately addressed in the record by counsel the remand was really for the district court to was to make a determination with regards to the scope of whether or not mr woodside should be held accountable for the regulars mr mcgregor's drugs basically and so the issue then is  since the coup or never adequately made findings in it didn't appear that that was really articulated for appellate review very well they never made them in the first instance that that gave rise to even more reason as to why when mr woodside hired new counsel to come in and filed motions requesting such that the court should have given new counsel hearing in order to at least argue if there were weren't going to allow evidence with regards to some of those issues so that what was your best case and supported your position that you are entitled to presence of counsel and all second district the demat case is also a general as well but it's speaks more specifically to thirty five fifty three c in a violation of those rights but i think those two cases  think where it said that the defendant has no right to allocution that a recent it's limited very well that's different certainly and that's not what we're asking for here with regards to this case elocution this under rule thirty two no case directly saying that what the distributor did was wrong and you know it your honor in the distinguishing factor is that the allocution was certainly the issue in the other case that's not what we're arguing here we're arguing  is that hearing should have been allowed in mr woodside a new counsel should have been allowed to address the limited issue on remained that the court set forth for a propellant review because quite frankly as  court recognized last time the numbers in the testimony was all over the place it jumped around and certain issues certainly the scope of the jointly undertaken activity wasn't thoroughly with regards to what the court did in their opinion it certainly is more detailed than the first time around it is a little confusing though as stated in the brief because conservatively the court said that they were going to err on the side of caution and use the testimony of to that goes through britain's calculations it it merely relies on stafford so i would say that the opinion really doesn't hit the heart of britain's calculations about what the judge was thinking  mean and there are sort of a harmless error concept in all this i mean you're the drug quantity was over the top of the sentencing right i mean it would have been the same sentencing range either way i mean even the quantity had been a lot less than calculated i don't necessarily agree to that i think the guy lined up a tent in this case could have changed certainly especially if mr woodside was not held accountable for mr mcgregor's drug he asked about that if i could as i understand it maybe these numbers have problems but what it appears is that he is responsible for one hundred roughly a hundred fifty eight thousand docs oxy caught on pills and in order to reduce the guideline range because that translated into something that was pretty close to the top of the range and there he would have had to reduce that to fifty five thousand and for two of the three periods where  mcgregor had nothing to do with it you have forty eight thousand so you'd have to have like all that seven thousand attributable to two mcgregor alone out of one hundred thousand pills is  possible for us to say that that's just couldn't be supported by the record and therefore a firm on that ground without getting into the issue that you raised about whether he addresses adequately the drugs that were sold by mr mcgregor  makes sense absolutely your honor and it's a fair question certainly because it is certainly a large quantity the answer is that it is possible i believe when you know that because you're talking about with mcgregor an eighteen month period i believe and certainly there's a lot of numbers so if i'm speaking with regards to the numbers i i certainly don't mean to but i was not trial counsel but we could we could go if if the number if  close examination showed the numbers to be so unlikely as not to be unreasonable to have made a difference we could affirm on that ground we have a power i believe your honor that  would be possible for the guideline to change at least down to the thirty two level which would be i believe the have to attribute all of that first period to mcgregor which is really not consistent with the facts of i believe that it is when i went through the record i believe that that calculation could be done in actually your client was furnishing the pills to mcgregor who would then sell it to breed and then stafford then your guy decided to go independent and undercut mcgregor right made his own side deal with the breed that's correct however i would i would just stick to the court that the  situation with regards to mr woodside supplying pills to mcgregor is really not clearly articulated what that relationship was basically how often the frequency or any of that was not done in the record but to the second point of that they certainly were in joint undertaking they were competitors undercut by dollar amounts selling to the same person and so there were questions during that time  didn't your client continue both to sail to stafford breeding and to mcgregor for a time prine i'm going to put this in believe that's in the record clear your honor and i would say that if if there was a he started supplying staff or bring in late two thousand and eight or early two thousand and nine then woodside goes and says all right i'm going to supply you two but i think one of the questions of of being involved in the same selling tea has to do with whether woodside continued to supply mcgregor at that time doesn't the record reflect that he did i don't think he did i don't think it's a do you think it's not reflected in the record that's was was that addressed in the briefing before the recent saying or was there no input from mr wood sides counsel the new counsel the new counsel the new counsel filed i believe a motion requesting a hearing and was he there and did it include a brief that addressed the issues that he wanted addressed at hearing yes which was the calculation and the jointly undertaken activity and all of those issues and so by not having a hearing we're left with essential the first information that the court had the first time around which is not fair certainly for mr woodside not fair for the court for a polar view purposes well it's fair if all it was liking was an adequate explanation of what was presented earlier it's not true fair about that is now not but there we would submit to the court certainly th explanation is certainly confusing especially in the court's opinion when they were alive on somebody other than who they that's a different issue from whether they have a better chance is not well and on the  but with regards to amount of time to think you are if you have a sentence or two that be all that we'd have time for your i was just going to state that i think in the court's opinion as well the court doesn't address all three aspects of the scope the further ins in the foreseeability the further it is not addressed that needs to be remanded on that ground as well  recalculation of the guidelines second we would accept the two right to be present and right to have a hearing analytically separate i think analytically they could be separate but i think there's roger's question general reese in a scene where a defendant has allocute back in the garcia role as case then there is some constitutional ramifications and the defendant should be present in order to allocute if there are other issues with the way that the originally conducted assessing hearing been there can be constitutional role for patients in this case when this court orders the district court merely to conduct a recalculation of the base offense level it doesn't rise to that level is the sixth circuit addressed in the case the right to be present for hild in open court hearing and have the defendant present but i don't think a defendant is entitled to have that open court hearing a b and b president you have any authority anywhere that says that there is no right to be present for a limited  eight where it says a lot of things can be classified as a recess in hearing or recessing it whether it be limited or general but what determines whether a defendant is entitled to the safeguards of an open court hearing is limited to the context of the proceedings so if the context of the proceeding is over he didn't have a right to allocute then it would necessitate an open for hearing and if you're not you don't if they're analytically separate i understand it seems odd that someone can come but can't allocute or you don't you're not having a hearing but you know rue forty three the cases say that it includes common law rights and the rule protections are broader than the protections provided in the fifth and sixth amendment so why do you have a case even if the six circuit has not rendered one that say as you can send back a limited remained and you can send that someone and neither the rules of procedure nor the constitution require that you do it in that person's presence the best case i have to that point would be the bryant case out for circuit that district court in the district court could double a defendant's time served and the defendant does not have to be present before the court to hear that his sentence is now doubled well i think that reasons this court reversed the court's ruling and sit back because it was outside of the range it essentially doubled it or increased it and the defendant didn't have the opportunity to argue with the court or make an argument to the co so or staffers account the base offense level did not change one rationale for having a different rule for if you come to the same conclusion that as opposed to a different rule for you come to a different conclusion if you come to a different conclusion it's hard to say that all you're doing is explaining what you did before and what if if all you're doing is explaining what you did before then it's very difficult to say that you have some sort of right to be present while they explain something where it was merely an inadequate explanation of what you did before you actually change it then there's i guess at least the possibility that you're doing something different from what you did before in which case presence might have  and it was adequate this court laid out essentially six things that it wanted the lower court to look at and consider and put on the record and the court did that and when it did it came out with the same basic sense of this court then having same s you to pick up on what the judge was saying earlier the rules or the rule certainly the rules say with regards to what i had sided with rule forty three in the other rules that  that the definitive be have the opportunity to have some meaningful input the court had mentioned that make a difference i suppose if we took the same with regards to say like the super bowl where everyone had the patriots winning the super was didn't have much of a chance of winning that game at all if they had just said well everybody thinks the pitchers are going to win doesn't make any difference in this case but that certainly wasn't the case that's why we give people  point is not that your honor but it's the point of the of it is that you're suggesting that the result would not have changed in what i'm suggesting is the result would have changed or could have changed and that's why we have hearings that's why we give people the opportunity to meaningfully meaningfully address situations such as this but we order looks like it's asking for an explanation for evaluation well i believe it's asking for an explanation and a court's the court's input with regards to the jointly taken under jointly taken activity which certainly an explanation is an explanation that's one thing but when you open up the scope of it which has never been addressed in the first instance i think that changes the game a little bit so the case that i would point out that they noted in there we will not  sure the court would not be persuaded by the words carefully chosen by counsel had the person had the opportunity counsel had the opportunity to come in and articulate on behalf of the fin the case that's correct your honor what i did i do think it's important with regards to the court suggesting that they're not going to assume that things wouldn't have been any different in you know if the situation is that we don't give people the opportunity in instances like these it certainly doesn't give the sense of fairness that is mentioned throughout the brief in the reasons behind all of those rules to give people an opportunity