granted saying that the sentence was vacated and the case should be remanded for reset and sing in light of united states versus thompson even though every court there's a record in this court that's considered the thompson remained issue has done a full re court refused to do such a reception or something in this case so miss christiansen i can't disagree with you that a lot of remarks of the district judge made reflected i have to say annoyance at the thought that the whole thing was going to have to be done again but the other thing district court does over and over again is say this was the sentence i wanted let's put that to the clerical error to one side right this was a sentence i wanted i'm not changing my mind i'm not changing my mind ever ever ever no matter what you say and on and on she went so do we actually have any doubt that if a proper thompson remained had taken place she would have anything different namely reaffirm the term of years and six what she thought needed fixing in the supervised release connections i certainly think there's a possibility i mean she was from the get go focus that she was not going to reconsider his and that's understandable given the posture in which his case came before her the first time he was a very difficult defendant long criminal history mister bond and she obviously remembered that but what was pertinent here that he was trying to say and she prevented him from is that in the year between the two sentencings he had done significant work in prison he got his ged which is not easy to do when you're in prison particularly since he was in the us p and he had taken classes to said in our case you have to change your condition of supervised release in a particular way you have to think about it more you have you know you have to consider whether it's the interaction with the the prison sentence in light of what the court of appeals said but isn't it possible for a judge to say as he did repeatedly you know i've listened to you and so on and read the  thompson case and so on i just don't see any reason to change what i said the first time i think if the judge had said what you just said you're all he did said in effect you know i think she didn't she she didn't for one thing say that she had considered what he was raising she said she wasn't going to she didn't say that she had read thompson and i think that we hopefully can assume that she had run thompson but any court who had been dealing with these issues would know that thompson well what she said example well i gave a lot of thought at the time posed to sets that i thought in this case for this person was appropriate i really don't have anything more to say about i think the key in there is at the time and then she sa and i really wasn't intending to go over that again right but i do have one other point for me with these thompson complete reset you know vacating the sentence full sentences actually of a couple points one is that i maybe are maybe i'm a close of one here but i haven't thought that meant that the actual evidence needed to be retaken and i thought that that meant that new evidence could be brought in and additional argument could be made that but the district judge didn't have to drag in victims again dragon you know everybody could rely on the records so that's one point i was second point that she seems to be influenced by is that mr mobley didn't file any kind of memorandum you know obviously i know things i was not trial counsel i was appellate counsel last time i know things that aren't the record about why one wasn't filed but it's not necessary and it's not certainly not required to file a sentencing memorandum prior to  there are many attorneys who don't do that and rely on oral arguments for whatever reason maybe their oral arguments are better than the written arguments and i do think that one thing that thompson really changed about our way of seeing sentencing is that it is not two components not imprisonment over here supervised release over here that they do interrelate and the judge said well wait a minute didn't i impose the maximum term of supervised release this time and i think if the judge had thought a little further about that maybe perhaps i'd maximum term cert supervised release maybe he doesn't need the high end of the guidelines particularly since the year he's been in prison he's shown an ability to start his rehabilitation i will agree with you about taking evidence on the guidelines taking evidence from the guidelines the victims and i'm not sure the victims came in the first time around but i understand your point that's what we would c case then the thirty five fifty three a factors and i think what mr mobley really wanted to argue and and what he tried to assert he did talk about lost in his criminal history but more was at thirty five fifty three a factor that he was perhaps in artfully asserting because he was you know a defendant not a lawyer so i do believe that had the judge been open to this remained for the thirty five fifty three a factor is to be considered not only for supervised release but also things she could have said i still think whatever it was i have sixty one months since read she had said i've considered your arguments i have the discretion to give you a different sentence i'm choosing not to we wouldn't be here that would be an exercise of discretion when he for doesn't mean what she's saying is not heard which saved the g d and everything but i'm not impressed i think she qualified by saying i did it at the time and i'm not going to consider what you're saying now and i don't know she she started out the hearing that way so i think that that was the way the tone of the hearing as it started and i think that's the way it finished as well when she said she didn't have to in the court of appeals to such she didn't have to and she wasn't going to now do you agree  with the government that we should review only more plain error the failure to provide a real opportunity for elocution because no objection was  below i don't agree i think that the attorney certainly didn't make an objection to mr mobley said that he did want to talk and he did have something to say and she cut me off he didn't talk he did talk but he he said what he you know he didn't understand why he challenging it as he didn't check on the appeal well or managed it is she supposed to is the judge supposed to rethink reconsider all the conditions without hearing anything from the defendant or she will cry or just say well you have to you have to tell me what you think of these this is a good well i think she does have to consider what the defendant has to say regarding the condition the she has i find it very difficult to read this transcript as anything but her understanding that the argument on the first appeal dealt with supervised release that the remained dealt with supervised opens up by saying good morning ok so which parts of supervised release to just agree with defense counsel says this is a new sentencing hearing we can make arguments about the sentence and she pretty much says no you can't and i think actually to give her the benefit of the doubt this was a moving target at the time there were a lot of supervised release cases coming out and i don't think she appreciated that the sentence itself was vacated there was no sentence on the record it's not it wasn't a limited remained just to fiddle around with the supervised release conditions and you know it may seem to be splitting hairs but if she had said something like i realize that the sentence is open for discussion again i'll listen to you always and to you frankly i haven't heard anything that's made me change my mind i suspect that's actually what you would have said  we don't have any hints from her that she's actually under some legal obligation to reconsider the incarceration part of the sentence where your honor i agree that the sentence was vacated and the government did actually receive point the thompson didn't leave the door open to consider other parts of the sentence i think it's a question between what's required by thompson and what's allowed well i was methodist i understand that but she has just as with the sentencing guidelines we reversed any number of cases once the sentencing guidelines became just a question area where the district judge still acted or said things that made us think that they hadn't absorbed that lesson yet and had and elected not to exercise it which would have been fine i understand that your honor when the government points out that thompson does open the door she does respond well that's my understanding she then does elect to complying with thompson's requirement that there be some statement on the record linking the terms of supervised release which are but going to be largely consistent but linking to what i mean this is an incomplete sentence you're saying nothing's changed for imprisonment know and you're focusing on supervised release so when she says well that's my understanding she's talking about supervised release right there she's not talking about incarceration your honor just in context in terms of the incomplete sens does say that the record limiting the terms of supervised release if you continue to the thirty five fifty three factors but not as a sentence of incarceration that's what maybe our court has been crazy but our idea has been that there is some substitution effect between terms of incarceration in terms of supervised release maybe that's not the case in many instances and she's i say no no one here disagrees with the proposition that she was absolutely entitled she thought that the correct incarceration charm was the same to reimpose it as long as she did it understanding that it was really a full remain and in she needed to give people a chance other than just sort of slip in you know on the side these coins she's she's very she tells the defense lawyers absolutely nothing you can say that's going to make me change my mind i'm not prepared to go over that again whether that is the opportunity for allocution being required in a reset thing in light of thompson and what i've been wondering is why should a reset and sing in light of thompson be treated differently and i of course what i wonder is is there any case support for such a state man well your honor i think it's unclear as to whether it should be treated differently and that's moving target at the time and you see in the transcript that the district court doesn't ask do i need to give you another opportunity to say something and defense counsel response is somewhat convoluted but eventually responds no i don't believe which the district court could reasonably interpret either there being no procedural need in this context or that there is no interest and delivery and elocution but the supreme court's made very clear that allocution is a personal right it's not something that the lawyer does for the defendant yes trying her and the question here can you can you cite me a case where nighter where allocution was not given and we didn't say that was a structural error that required reversal i do not have a case befor me speak on the issue of mitigating evidence the defendant alleges that he was barred from presenting mitigating evidence during her sensing the defendant did in fact present the mitigating evidence which in this case was the accomplishment of receiving a ged and completing numerous classes various courses this was before the court at the time there was a no point where the court said that they would not consider mitigating evidence if there was any request for mitigating evidence the court never said no you can't present that the district court was of course entitle to give little or no weight to that mitigating evidence and here you have a situation where the district court considered that evidence and found that no evidence presented indicated that the district court should revisit the defendant's term of imprisonment and judge posner you've stated one of the areas where the district court said that there's another area where the district court says i have and this is after that mitigating evidence regarding the ged and the completed classes was presented the district court says and i have no reason to think that i didn't impose the correct sentence which was certainly imposed only i get it after i gave it a lot of consideration and several hearings another section where she says nothing has been presented to me today to indicate that the court should revisit the term of the prison allocation and that was the case where this court determined that rule fifty two applies to elocution issues i will say that capice was decided in april prior to mr a few months prior to the government or by her that you disagree with that it gets to say them and she says well those are issues you couldn't raise on appeal and chose not to that was the last page of she's obviously giving him a chance not that it's a good chance that he can talk her out of this i think if it was a chance it was the worst chance possible if it was a chance for him to talk her out of it was the worst chance possible media means allowing them to present and argue evidence mr mobley gets it while the so the lawyer was there to percent clear arguments and the district court judge shot him down when he tried but he didn't have a chance to developments like he gives the roman numeral headings that he doesn't have any chance general why all but he could have simply said you know charset i'd like to say there's some more points i'd like to raise i think he could have but the judge made it clear she wasn't going to consider it but i do think she the judge show she was impatient and that she didn't try to cut anybody all i would have to disagree with you all where do you think she cut someone off i think she says or not as she says i'm not going to i'm not going to consider it there's nothing you can say to make me reconsider my