case and i also understand that my good colleague here was in that case and they said arm was fair but since then we've had a couple of cases come down from the supreme court it seems like that contradicts that pretty well like marcus and parker so if i use plain error of you are you still going to win yes  we have said that but my worry is that if i have contradicting present from the supreme court in marcus and park of and i have to apply one error of you what do i do with your client the m your honor because it seems to me harmless error of you there's no question there's a purse there's a substantial error if you will but and so pointless or for harmless error that would be the end of the story because mr daniels received a higher sentence than he otherwise might have had he been offered the opportunity to allocute but the government says it's not plain because thirty do may not be it may not be something court's failure to address mr daniels non frivolous reasons for a twenty four month sentence which is required under the true hero defense counsel gave two reasons why sentence of twenty four sufficient and that is because allegation three effectively doubled the guideline range for this particular offense because it was considered a drug trafficking in the trafficking offense but the underlying conduct was relatively minor it was possession for sale approximately a half an ounce of marijuana the other reason was daniel had already played guilty two allegations one and two just in state court and he was set the court question counsel about these issues there was a colloquy earlier in the proceedings during cross examination between the defense counsel and the district court it was largely defense counsel explaining the reasons behind some of his questioning so i was right looked at it it seemed like the court was questioning counsel about the issue and discussing it with him you're on a bell s sentence finally the thirty error is that the court relied on to implement simple sentencing factors in sentencing mr daniels and that is the need to punish and the need to uphold respect for the law now these are permissible factors in original sentencing but they are impermissible in a supervised release revocation sentencing they are worried years what indication do i have and what the court said that the other factors such as the defendant's history the need for deterrence and of course respect for the law he goes on to mention respect for the law again and the need to justly punished so there's respect for the law mentioned twice and need to punish mentioned once in the single sentence that explains just records reasoning i think it's fair to say that it was a primary consideration and in the imposition of the sent possessing cocaine with the intention distribute it he was released from custody in two thousand and eight and since then he has committed numerous violations of the terms and conditions of the supervised release he has breached the court's trust in numerous ways and in particular argument you might find helpful but it i'm not sure it's helpful on appeal on appeal i think you need to talk about the failing to give him opportunity to allocute i understand your honor and i will address that point one two he together and argue that it's council there's nothing that suggests council see gives the opportunity for council to comment appeared present evidence witnesses the amendment the two thousand and five amendments the explanation by those who drafted don't talk about counsel the opportunity to allocute and this says and as a result count votes such cooled i've got a question for you yes for i realize the length the language of the rules can be argued to be a little different however in the comments to  two thousand and five amendments i'm reading a sense that says in each instance the court is required to give the defendant the opportunity to make a statement so in one of the comments isn't it clear that the court not the lawyer for the defense is supposed to give me opportunity honor we believe that the important acquirement here are the way to interpret that language is to is that the court is to allow defendant here is not that counsel was entitled to these rights obviously the defendant is entitled to the only way out is this change when we get to eat it doesn't your honor the government's position is simply that and just to be clear the government is not trivializing the right to our hughson here it's obviously a critical right the only point that we're trying to make is that based on the language of this particular rule an opportunity to make a statement and present any information in mitigation is it's not that clear your honor but more important here is there's no question we need the other three tests of the plane there so we're all on the plane whether it's plane that's the government's best argument know your honor our position is that even if this court were to find that there was a plane air the pons three and four of the plane air you are early if we go back to the harmless error of you we've got those cases say if they don't allocute it's automatically a substandard right so there's no way the government could argue that it is the substandard right and then we go to the last prong i don't know how you make the argument that it isn't going to affect the way that society is going to address the court by not allowing a defendant the right to allocute i mean it seems logical that a person ought to have a i don't know how we supposed to do that and i have in the twenty nine years that i've been a district court judge has sentenced more people than i like to think about and i have found that the allocution and sentencing is extremely important and number and number of instances a significant number is actually affected the sentence that i posed how was it the how was a defendant supposed to show that it would have affected the sentence i mean this is this is this is simply an impossible and impossible burden the prejudice is that he was denied the right a procedural right that could have affected the sentence have given less i mean i again this is this comes from my own experience in sentencing i've seen too many cases in which the defendant when a defendant got up to speak and spoke it affected  the sense that i gave notwithstanding the fact that i knew all of the facts from the pre sentence report and from indeed i usually asked defendant last to speak after his lawyers and after the u s a and so i don't know i don't quite understand what more he can show and i don't know why you're you know i don't know there's any rule against confessing i mean this doesn't hurt you that much if we were first on this ground the next time around you know us attorney will send around and say if the judge just you know make sure the judge says to the rest of the friend to speak before impose a sentence and there point in my mind and i want you to be able to grasp this with my i think i have focused in on this is the green versus united states where it says and i read because i read it every time when i was a district judge the most persuasive counsel may not be able to speak for a defendant as the defendant i speak for himself with halting eloquen we would ask that this court look at the entirety of the transcript here the evidentiary hearing and the sentencing hearing and the history of this case and this judge's history with this defendant and it is our position that if you focus on plan four integrity or public reputation of the king of the judicial proceeding and given the entire context and record