better your honor is i'd first like to address the standard or review as it applies to the rule thirty two violation the government has argued that this error should be reviewed under a plain error standard but i've argued that it should be under the i mean that is per se reversible under the circuits precedent and united states versus park which is a per curiam opinion and based on that opinion since it's per se reversible mr style doesn't necessarily have to prove particular prejudice and yet if this court does deem that he does have to prove prejudice i think he can a rule thirty two violation is based upon the idea that the judge was infected by his reading of the pre sentence report prior to the acceptance of his other party the  times he alerts the the parties to several bits of information that could only have been gleaned from the pre sentence report but he said that he said during the sentencing hearing he said that yes you know certainly i think he would have read the p s r before the sentencing i think the question from judge breyer was what evidence is there is that he actually read the p s r before he accepted the plea well since there's no indication that he accepted the guilty plea at any point between the change of plea and the sentencing hearing it's uncertain now what time he actually did choose to accept  the guilty plea so as far as the timing about when he accepted the plea there's there's no indication when he did to the extent that he sentenced mr still i think at that point he may have imply of the accepted the guilty plea enough that point the judge had read the pre sentence report let's assume for a second that you do have to show some level of prejudice and i understand your argument you reserving on that but the sooner you do can you explain how mr stele how he was prejudiced by judge ha presumably having read the p s r before accepting the plea well judge had or at some point indicates that he was moved by the fact that mr stiles living situation was was a lot worse than he believed it could be if he was in the custody of the bureau prisons this was information that was only available in the pre sentence report and as i argued in my second argument may have affected judge titers determination of his custodial term and assuming that he pled guilty or he accepted the plea before sentencing mr stele then the same information could have prejudiced him as to whether or not acceptance was appropriate what does the district court judge have discretion to reject a plea if someone has set out all what's required by rule o situation where a judge actually does have discretion about whether to accept or reject it regardless of whether will levin has been satisfied and united states as a person is o'brien supports that i'm still trying to get the what with the prejudice b is your argument that because he presumably read the p s r before accepting the plea he accepted the plea and get it and in fact the reason why accept the plea was because he saw how bad his living situation was and said he should be in a prison rather than a shipping container somewhere ye substantial rights and if it affected the defendant's the potential rights in the context of harmlessness their analysis arguably it effects the defendant substantial rights just the same under plain air analysis what would have prevented defense counsel from objecting during the change of plea or for example during the sentencing when the p s r talks about how there was this plea hearing in the p s r there was no objection to the p s r file there's no objection to the middle order was there something that could have prevented defense counsel from making the argument you're making now previously at the time that the change of plea happened i think the preceeding was very long and judge had only inquired of defense counsel if there was no objection to whether or not he could accept the plea today at that moment it was never inquired of counsel you know whether or not it was appropriate to postpone acceptance of the plea until after reading the p s r so there was it exactly clear moment in this record for defense counsel to object to that point what about when the p s r came out that he believed that the factual basis was adequate but it still still maintain that he was waiting to formally accept the plea until after reading the p c s p s r so it wasn't clear exactly that the p s r was wrong on that point it's not clear here what precisely was happening or why the judge chose to actually postpone accepting fully accepting this plea into after reading the p s r i guess what i'm asking is that is there anything that would have prevented the trial counsel from making the argument you're making now you've made a very  very smart argument here in this case you spotted something i'm just trying to figure out was there a reason why there's something preventing the earlier counsel from making the same argument you're making no i don't think there was a point during these proceedings were counsel was given the opportunity to make this specific kind of objection and the point that it would have happened was when the judge indicated why it was formally accepting the guilty plea when if the judge had actually stated on the record at least prior to sentencing at some point i'm formally accepting this guilty plea after having read the p s r for these reasons then i think that would have been a point where counsel could actually have objected to the error but since that never happened which is why i argued it compounded this error there was no such place in these proceedings for defense counsel to object to the the court's form or reasons for accepting this guilty plea and unless there's no further questions i reserve the rest of my time for battle  morning your honour's may please the court bram than for the united states defendant pleaded guilty to defraud ing over three hundred people over the course of nearly a decade million dollars defendant chose to plead guilty and he was allowed to do so over the government's objection using an alford plea defendant of course never himself objected at any point during the change of plea hearing and while counsel now says that he had no opportunity to do so that ample opportunity to do so would clue ding when they judge allowed him to use an alford plea at his own election including at any point during the government's extension a factual basis during the change of plea hearing when judge judge might read the p s r prior to final acceptance of the plea that was the occasion to do so because counsel having said what he was going to do is postpone the acceptance of the plea until after he reviewed the p s r is there any evidence in the record to suggest that the judge did not do exactly what he said he intended to do there's no evidence to s didn't actually read the p s r why were to finally accept and why would we conclude that the judge failed to do what he said he was going to do i think for one thing there's a question as to whether the judge actually did accept the plea at the change of plea hearing and of course the government takes the position that the plea was accepted in which case the judge could not have reviewed the p s r before accepting the plea because the play is automatically accepted at the change of  even if the court were to conclude that the judge did review the p s r prior to final acceptance of the change of plea there is absolutely no showing of prejudice and the government believes that this is absolutely not a case in which structural error plots the court the court knows that there are three cases the defendant relies on each of which is over forty years old now for the proposition that this is a per se reversible error however the supreme court has on many occasions in more recent decades said that per se reversible errors which defense counsel acknowledges are structural errors are exceedingly rare and they go to the fundamental heart of the justice system and ensuring that the defendant is guaranteed a fair trial belove here none of those concerns exist first of all when these cases decided forty years ago and more were  heard rule thirty two which was what prevents the court from reviewing the p s r prior to accepting the plea actually prevented the defendant from looking at the p s r at all so back when there were  significant concerns about what might happen if a judge saw the p s r prior to the guilty plea that was a time when the defendant had no opportunity to even see the p s r or object to anything in it in addition to that the defendant in this case had no criminal history whatsoever as the p s r reveals in paragraph one eleven and the courts that decided those three cases that the defendant relies upon for the proposition that this is per se reversible concerned with the part of the possibility that a district court judge might rely on a defendant's prior criminal history to find that defendant guilty there's no such concern here so any possible prejudice is a limited not only by that but also by the fact that this is what the defendant wanted he chose to plead guilty he got what he wanted then you're is it your argument that whether this harm by a trial judge reviewing the p s r before accepting the police should depend on the content of the p s r your argument amounts to i think that that's definitely part of the argument that if there is nothing in the p s r to suggest that the judge might therefore find the defendant guilty based on something in the p s r then there is no harm here there is even better evidence that there was no harm because defendant's coconspirator actually went to trial and did not plead guilty and received a sentence of two hundred forty months that is a full eight years less than the sentence the defendant received for the exact same conspiracy conspiracy in addition to other counts for which his coconspirator wasn't even indicted so here there's multiple reasons to know that this did not harm the defendant in any way so under any reason a ball reviews standard that is consistent with modern jurisprudence this defendant has shown no evidence of prong three of the planer standard and no evidence that this affects the judicial integrity or reputation of the court under problem for in addition i think there's really no error at all and the government's position is that in rule of levin under rule eleven b three the court is entitle to review the p s r prior to entry of judgment and what's important here is that  mean the court is entitled to find a factual basis under rule eleven b three for a guilty plea prior to entry of judgment so what's important here is ordinarily the factual basis for a change of plea established at the time of a change of plea hearing but eleven b three and the advisory committee notes to the nine hundred sixty six amendments to rule eleven make very clear that the judge is actually permitted to use the to find a factual basis for a plea and the point of that is to protect a defendant's rights if a defendant enters a guilty plea and then the judge reads a p s r and says actually i don't think that there is a factual basis to support this plea he should then vacate that guilty plea at the before judgment here what was likely happening was judge pattern below was simply when he said that he was going to defer final acceptance indicating that he intended to review the p s r to ensure that there was in fact a factual basis because defend it was entering a unique sort of plea and alford plea where he was effectively maintaining his innocence even as he pled guilty with respect to the third issue in this case which is the tapia error i think that one point that is particularly important is that the government while conceding that error has requested a limited  that defense relies upon was not a plain their case and even matthews says that a limited remained is appropriate where there is a full factual record as has been developed here putting aside the plain our  is plain why should we tie the hands of the trial judge you for going to send it back for resentencing long shouldn't we let the trial judge handle that the way the trial judge wants to i think that when there is a do think the plain error factor comes into play and in that context encourages a and efficiency of judicial resources both here and by a lot when inefficiency of government resources because the point of the planer standard is that if the defense does not make an objection at any point during proceedings below that the court's review is extremely limited and extremely narrow for the purposes of efficiency and in addition the supreme court case in molin martinez added this court's case and planes both endorse the limited remand in the plain era context with respect to the how how would you have the limit that the district court judge would he in fact intended to rely on a rehabilitation or corrective treatment needed for imposition or lengthening of the sentence and if he did in fact which i think is ambiguous because actually he reduced the defendant's sentence based on his medical needs so there is some ambiguity as to whether he imposed or lengthen the sentence based on medical needs or corrective treatment which  remount would say did you you should determine just a court judge did you in fact rely on an impermissible basis for imposing a sentence and if you did and if you did would you have still impose the same sentence abs impermissible factor so that that is and that is consistent with what the court the supreme court said and moline a martinez mechanism short of a full remained to determine whether a district court in fact would have  for the question th prejudicial where the defendant does not need to show a particular prejudice again mr stone would argue here he has he had everything to lose and nothing to gain by his alford plea this is a case where he is an elderly man who is medically infirm the reduction in his guidelines that he was not offered a plea agreement which is the usual reason why defendants take advantage of an alford plea process he got his sentence which is effectively a death sentence for him the sentence that he was facing with the amended guidelines for the two levels off he got for acceptance of responsibility was still extremely long two hundred sixty two months in other words this is the precise kind of situation that rule thirty two was meant to guard against a judge witnessed his change of plea accepted the factual braced basis and there's no indication in this record that this judge postponed acceptance to read the p s r in relationship to the factual basis the judge actually stated that it was accepting the factual basis on the record and then said it was still postponing acceptance until he read the p s r but this is the kind of case there is no reason if the judge was not satisfied at the change of  colloquy at the time he should never have accepted it that was the point there is no reason to have then gone on to read the p s r and then for other reasons that are not relevant to guilt or innocence choose to formally accept his plea at that