we would like to have council help us to sort that out we will first start if we are ready we will first start with council or mr silver not address the implications and analyze every man with respect to the right to allocution and that right is a substantial one dane back to sixteen eighty nine protected both by the common law pre concert to sheen and the constitution goes back to do this and it's not a recent thing but that's what they said they said it's not a recent thing so how can we call it a recent thing i'm not asking you to what i'm asking you to call it is what the statute calls it which is a sentencing proceeding i'm not saying that it's a full recent saying i'm not saying that we have a right to present evidence to file objections to the pre sentence report and all those things what i'm saying is that this is a sense in proceeding it's a hard out portion of the full sentencing and the carved out portion asks the court to consider the traditional sense in factors that defendants have spoken to since sixteen eighty nine and i think that this court's recent decision in montgomery which i stand up in a letter earlier makes that point it says look that's what doing on an ally remains as they're considering the thirty five fifty three a factors and it makes the specific point that the comments of counsel are necessary to the extermination and i think boardman versus the style basically establishes that if the comments of counsel are proceed in the crosby proceeding doesn't allow allocution i'm just a little tentative about telling the end bank majority that they were wrong well i don't want you to tell them they're wrong i want you to tell them that they didn't address this issue and in fact the dissent that didn't address the issue that's correct they did not address the issue of allocution in fact that's one of the points that judge if they adopted a case that does adopt the allocution did they have to say we adopt crosby and we mean elocution to i think that they procedure my point is is that we're talking about a fundamental constitutional right if the court if the majority wanted to say that we're cutting that off then they would have done so and i would point out that the portion of judge ward laws dissent that was it that was joined by ju by implication from opinions that don't address them you know i did one of those of us law searches allocute exclamation point that word never appears in the majority opinion so we're talking about a fundamental constitutional right this court adopted that position in boardman versus that dates back to sixteen eighty nine you've got an opinion that doesn't use the word allocution you've got to dissent that says defendants are going to appeal on the outs use an issue because of their decision and they don't respond to the dissent that to me indicates argued that there was a serious problem with allocution with respect to the procedure that they're going to adopt or they don't address that they don't dress it at all i don't think you can draw anything from that other than that there is thinking that's a decision that we're going to leave for another day and in fact they say in their you're howard anyway to be great if we would declare emmeline dicta but i think what we should really do is say this is a fundamental right it's not addressed in the majority opinion and it could have been because it was brought up in the dissent are now so let me interrupt for just a second you have co counsel in the solomon did she expect to share some of your that occur i'm not saying i'm entitled to all of those all i'm saying is that the due process clause requires at a minimum the right to allocution and whatever it is that you're doing in the district court on these remains that right attaches because it goes to the traditional district court and the majority of the conditions of supervised release that were imposed were conditions that under the set of the guidelines that are five d one point three are listed as are mandatory conditions under statutes other conditions are conditions that are solely recommended and at the time that mr bates was eventually sentenced those guidelines were taken into account by the district court the district court now of course has more discretion under booker to determine whether or not those guidelines should be suggest that the court approach this this question in two stages the first stage would be to ask what were the procedures to be followed as outlined in annulling three and do those procedures require an allocution on a limited reem at the first stage of before the district court judge decides whether or not he's going to have a new sentencing here the second question would be along the lines of what judge what a loss adjuster during the initial argument is whether or not there's any constitutional problem with that if  provides that there should be an allocution at the first stage of the limited rain man on the first question i think it's clear from the family three opinion itself that the judge is entitle to make the first initial decision based on the briefs that are submitted by counsel for both parties and the record from the entire record from the prior proceedings in the case and that he need not hold a hearing and if there were any question last by that section of the opinion the procedures to be followed in the o three that question was resolved in a recent case of montgomery which was the subject of a twenty eight a lot of that's been submitted by both parties to this well both parties seem to cite montgomery but i owe it says to me when i read it is that  there is an absolute right to have the views of counsel solicited that's all of it says that it also refers to crosby and says that while like hearing is optional written submissions from coun mandatory and i think that it's impossible to read either that section of amalie three that says the procedures to be followed or the montgomery decision as saying anything other than the court supreme the to decide this first initial question at at least at a opinion i don't have the direct cite in front of be worth discussing the crosby opinion it refers to it says and this is the use of counsel at least in writing should be obtained citing crosby and while a hearing is optional the written submissions from counsel are mandatory and if i have some time at the end of my presentation i can find that section for for your honor and cite it for you i think however when you look at either the the section of the family three opinion that says procedures to it to be followed or montgomery or crosby which was the second circuit opinion that was adopted by the on bank majority in amalie three it's playing out what the court had in mind was we send it back to the district court to make this initial determination as to whether or not there's a plan are and if it decides that there is fine error then we get the defendant present and we have a new sentencing hearing where all the rights of sentencing including allocution would pertain but it's still the dis decide whether or not his decision would be materially different under a and visor guidelines system one of the problems that your are articulated with the emily three opinion was that it it seemed to assign an  has no right to be here why should it be any different in front of the district court it's a practical consideration it's the government's because it would seem that given the fact that on the family man the district court can allocate but it's not those practical difficulties on which the government is relying for its position before this court you simply don't think that there is that that there was ever any intention that defendants would be given a right to allocute at this initial stage and that there's no that's true that's true but then you would have a comeback  and i don't think that that's a procedure that was intended by the court i don't think it's a procedure that makes sense i mean whether or not the the and when you three train has left the station this court has decided that at that stage of the proceedings so i think that when you review the crosby in montgomery and emily three cases allocution is not a part of the procedures that's been set forth by the government  set forth by the court that there's not a constitutional problem with that because the gist of what is not taking new evidence not making new factual findings at the first gauge the amalie three remand what he's doing is examining that third pro of the plane our review and that if you did give the right to allocute it's going to create all sorts of odd situations where the defendant is allocating at a stage where his allocution has no meaningful bearing on the decision that's actually before the district work and you can have the defendant allocute ing over and over and over again and not necessarily at the stages where his allocution would be most appropriate to to consider i also want to address before i sit down the argument that because the statute authorizing a rematch in this case uses the word sentencing proceeding that automatically all the constitutional and i would assume statutory or procedural rights attendant to a sentencing a full sentence in hearing that's the case just argued will be submitted for decision and the case is i should say that both argued will be submitted for decision and the court w