sentence in green versus united states the supreme court held that this rule explicitly affords the defendant to rights to make a statement an allocution and to present any information in mitigation of punishment in order for this court to give effect to that second part of rule thirty two i it must allow me to geisha and to p presented at the sentencing hearing there should be no limit on the type of mitigation although there are limits on regular sentencing evidence such as reliability relevancy and other courts have suggested that the defendant may not challenge his guilt at a sentencing hearing which is seems to be a pretty reasonable limitation to mitigation evidence the purposes of the roller obviously to present mitigation circumstances in order for the district court to fulfill its mandate under thirty five fifty three eight to consider the defendant's characteristics and personal history the supreme court has also mandated this in pepper must give the court full picture to make an individual ised decision and it must also preserve the appearance of fairness in the justice system for the defendant to have an adequate time to address the court equal to the government's if so desired in this case the district court severely limited the mitigation now mr cunningham did get to present some however it was clear that the court was not interested in hearing the majority of what he wanted to present the court consistently limited mr cunningham's presentation it was clear the parties had discussed her prior to the sentencing hearing there's i'm sure there's corners where on thing happens you know i'd like to call some witnesses your honor in there and the judge most likely said we don't do that because then he later said that on the record we don't do that here which means that depending on which county in the northern district of illinois you commit a crime you may or may not get to carl call live witnesses at your sentencing hearing we don't usually have witnesses my next hearing is in twenty five minutes the parties hurried through it each witness it's not time to my knowledge but got less than five minutes to talk the court consistently said cut it down wrap it up and said that it was too emotionally hard for mr cunningham a way to continue it is emotionally hard sentencing is very difficult situation this going to miss all of their childhood if you received which he did fifteen years this court has repeatedly how that sentencing must not be reduced to a formality and that must mean that mitigation can be presented it will not turn into a full blown evidentiary hearing at every sentencing as this court is more than aware sentencing come in all different shapes and sizes some defendants have no mitigation evidence they have nobody to speak for them which speaks volumes in itself some of them may only want to do written evidence some might want to do testimony some might want to do videos which is occurring more and more we're thinking about twenty letters court didn't take those things into consideration the court did make comments that he had considered the mitigation the women on the live witnesses however and defense counsel said listen just paper is one thing seeing someone testify live an entirely different proposition as i mentioned in my reply brief there is no way the government would ever give up live witnesses in favor of paper when they're talking about a case agent or an expert witness for example sometimes court reporters put it in the transcript and i'm not sure it's in this one it seems it took less than an hour but a less than halfway through they were talking about i know you have another hearing in twenty five minutes so we know it took at least twenty five minutes probably but there aren't times listed to my knowledge and again if the concern is that every sentencing hearing is going to clog up the court's docket that's certainly a concern we can't h day hearings on every sentencing but that is not what we're asking for certainly it would not happen in every sentencing but it does need to be an individual ised consideration by the the district quirke not  the defendant to ever make a record as to what he would have said to the judge or had someone said on his behalf to the judge if the judge had permitted ham's mother being able to testify defense counsel made a comment that she could have shed some light on his difficulties as a child which continued into adulthood and i think that that's a particularly salient point here because the judge struggled with mr cunningham's past and he was arguing of course that i have rehabilitated myself and the judge rightly said yes but you committed this offense when you had a wife or it was married y significant other in children so what makes this different and i think that there could have been more presented it's one thing for a defendant to be able to  fun it wasn't really resolved defense counsel said she could have addressed that and that's kind of all where i went i think from defense counsel's point of view it's a very fine balance when a judge tells you we don't do that here and you don't want to possibly prejudice the judge against your client by raising a huge stink about i want to do this i want to do this your honor no matter what you say that's certainly not going to be good for your client should you want to call three witnesses and you do write that was after the limitation was noted however and i i don't know if it reflects from the record but there were more than three people they are there were significant number of people there and he did call the probably this three most important witnesses but even those witnesses were limited in what how long they were allowed to testify and what they were allowed to talk about i think the pastor probably could have expanded a little bit more about the rehabilitation that he had done within the church the past working on him for a clear how many of those people were or were in the courtroom but just don't know right the court did make a comment about if they're only going to testify about what's in their letter i don't want to hear repetition so i i think know not that i'm aware of no deal or standing order from the particular juror true not that i'm aware of no i looked on their website and i did not see it and that's usually where the standing orders are my colleague might know because she actually practices in rockford  this was kind of a this is kind of why where you're doing things just my world right right and you know i know for a fact that as a judge noted in the chicago division witnesses are very freely  defense counsel need to do and it really is on eyes and ears are our burdens to have at sentencing to kind of change the way the system is and i understand that judges like to have their courtroom run the way they like to have it run but mr cunningham also had a proceeding i don't know that for a fact if in fact the first time the judge told the lawyer was at the hearing that may in fact be true but i don't know enough knowing that often judges and judges please the court i am tali bucci and i represent the united states in this appeal i would like to start with the factual issues here and how this sentencing proceeding occurred the first time at least that i'm aware of that the the judge was notified that there were going to be witnesses was at the hearing when the defense counsel said i have three witnesses that was before the judge ever told the defense counsel that he did not normally have witnesses or anything about keeping witness testimony brief defense counsel first statement was i have three witnesses that statement was made at the time where the judge was going through the written materials before him so understandably the judge said we'll get to that in a minute and kept going through the written materials once that was done the judge returned to the witnesses and then explained that it was not his usual practice to have witnesses but he would allow the defense counsel to have the witnesses hear defense counsel said i wanted to call three witnesses defense counsel then called three witnesses called the defendant's father in law called the defendant's wife called the defendant's pastor all three of those witnesses also submitted letters those were among the over year letters that were submitted to the judge the judge received reviewed and even commented that he was impressed by with respect to defendant's mother event his mother was in the courtroom as defense counsel noted your honour's  probably aware it's not uncommon for a defense attorney to reflect that there are support from parents or others at sentencing that shows the defendant's family support but at no time did defense counsel say that he went on into or planned to call the mother as a witness she was there in support she had submitted one of the letters that's among the letters that was given to the judge and the judge reviewed but it was no point did they ask or saving intended to call again they said three witnesses and they called all three of them and defense counsel even mentioned to the court in the beginning that he expected those witnesses to give brief testimony there is no evidence in the record that the court actually cut off that testimony the court allowed two of those witnesses to speak freely as long as they wanted only once did the court say anything about wrapping it up during a witness testimony and the court didn't say wrap it up until defense counsel already mentioned that he was starting to wrap up anyways so there is no indication that this testimony was actually cut short in any way the district court had ample amount of mitigating evidence that was put in front of him both in the p s r also in the character letters that the judge reviewed the defense counsel submitted written arguments and written objections which the court went through defense counsel also provided oral argument about the mitigating evidence and the district court heard from the defendant himself and the district court heard from the three witnesses there was ample opportunity to present whatever information defendant wanted to present and defendant took advantage of that opportunity there is nothing that was presented at the hearing about additional information that would have been presented and there is nothing in defendant's appellate briefs that explain what additional information would have been prevented and defense counsel hasn't presented any of information here today about what additional information would be presented the on the factual issue there's also a legal issue here defendant never objected so that the government's position at that is that plain error view applies and no circuit court and the government's research has found that rule thirty two eye for a provides defendant a right to call character witnesses at sentencing and certainly not a right to call unlimited character witnesses at sentencing so even if there was an error that error was not plain in addition defendant has not presented or explained what he would have presented further so there's no effect on his substantial ri soon briefly wrap it up and speak so practice in one division versus  you can see from just reading that record one could get some concern about the speed that might attend perhaps this isn't the case but it seems to be come off the record to me i understand how if you take the judges comments perhaps taking them out of the records and just viewing them in isolation outside of this case i can see where your honor's concern would be i do practice in rockford i don't believe the judge has a standing point being that i don't think there is a hard and fast rule and as your owners are probably aware oftentimes judge does say things wrap it up keep it brief and lawyers are able to get the information in that they need to be brought in and it's not until a judge starts cutting you off that you know that you really need stuff and that's partly what these lights are up here for and if we can continue going even if we're told to stay brief a lawyer knows how to get the information out there is no information at the evidence in the record that this guy  the defense counsel was actually stopped from providing anything he did exactly what he said he was going to do regardless of what the comments that the judge made and i should point out one additional thing that i want to clarify did neither the judge nor the government ever commented on the judge's schedule for the rest of the day the only person who commented that the judge had a hearing in twenty five minutes was defense counsel well he must have been informed and something i'm sure there's a daily calendar that's put out but the judge never pressured anyone that we needed to get yes probably the most important point i've quoted the original colloquy between the court and the defense counsel on page ten of my brief it's in the appendix of page twenty one and twenty two and it's very clear that the court's not going to let th immediately i understand what you want to do you cut it down you don't have to go through everything again as far as me presenting evidence about what would have been it so i'm saying i can't do that i'm sure i could have but our system of justice does not allow me to present additional evidence on appeal i have the record as it is and if the government is saying that the first time defense counsel knew about this rule was it something that is a problem