fact that the judge made findings about certain parts of mr thomas his history and characteristics that were findings that he could not then apparently contest or argue about this is for example his criminal history which was was significant but certainly old information he was not given a chance to rebut after the court made those findings those findings that she made there's also no indication that he had read those findings at all paper talking about rule thirty three three is being broader than the constitutional right and my reasoning my is that i have to get in under the constitution but i'm also making a rule forty three are  constitutional time is a due process right i understand words to process are you right but as i said there's absolutely no difference for due process purpose between criminal and civil litigation and we know from the gasoline products i'm going to give him a blow guideline sentence i haven't yet decided how far i'm going to go below the guidelines that will be decided later those are her exact words that was i took away from the transcript right right that doesn't sound so bad is a practice in the central district of california in which you know that i think it's mainly in civil cases but it's there tentative decisions here a motion in a civil case will be set for hearing and you show criminal well it's not just the right the question is whether a judge violates the right to process by first preparing for a decision that he has made and perhaps happen very often in district courts i think that there are in chambers you things i know they're in chambers meetings prior to stunt saying but in my experience they are mostly very preliminary and no findings are made the judge says i may be think she was wrong about his role in the offense and was that raised in the oral hearing unfortunately no and i think we're coming from that kind of we're kind of having to back pedal because i'm not of this was ok i'm very confused by that as to what you're objecting to i looked this procedure and it looks to me like you're like you should love it because this provided plenty of advance notice about supervised release conditions hearing that would be forded by the defendants the absence of these those cases of all dealt with trial type issues and indeed those cases have allowed all sorts of while type proceedings to occur outside the defendant's presence instances of the co of insight into the court's thinking the court does not do anything that would violate rule thirty two or rule forty three all elements of rule thirty two were covered at sentencing and rule forty three was complied w preserved at all rule forty three of the original language of before three which stems i believe from the baron's cision was that it is concerned with the imposition of sentence and the change in the language to sentencing in two thousand and two the note decision i don't read anything in this memo as suggesting i have made a final decision if you have if i have stated anything incorrect in this imo that's for the court of appeals not for me at sentencing but nothing in the memorandum to suggest at a district court is there asking anything else of counsel for fourth defendant counsel for the government and indeed also for the government despite the fact defend the the district court had indicated at this juncture based on what i've heard so far i'm planning to get low range sentence the government still said you might want to consider still giving a guideline range sentence that the government did not view this as in some way cutting off any form of argument so that the analysis mr pollard change  trying to say that that the cover the work cannot think about i mean that that's sort of the question earl you all were pointing to as well the court can't think about the case outside of when they're in the presence of the defendant i don't think that if i like that now it's of if the court i mean there is a line of cases the allocution of the law by the court has come in and said i'm going to give a two hundred ten month sentence that would plainly violate a law that would violate the allocution visions but i don't think that the court that you know based on everything that i've heard everything that's been ask you you're familiar presumably with the sentencing practices of other judges in the northern district i am you know yes and what are what are the other variations that we need to be concerned about as we write an opinion in sentencing status tom says none of the other district court judges do that we do have other judges who do issue opinions prior to sentencing where they make findings about guideline issues and things of that nature i'm not sure that there are any who  issuing pre sentencing opinions about guideline issues i'm not really aware that it's done much else or there are those opinions expressed sleep if i think they are i mean decide that some of them are about guideline issues so i mean they were more law based i mean i i don't know whether whether the house and if they are i mean usually law based things or phrase more is to create two point one applies but if i don't think any of them ever say you know if i can imagine if if in any defendant in this case she asked defendant alex yes the government to comment she gave the defendant as rights the response of the government's comments and then she explained her decision i mean it may well sometimes be a case that nothing much happens in all of that and that final decision ends up pretty much what things were before but that doesn't mean that the fact that judges tentative opinion coming into a hearing did change means that somehow some constitutional provision or stats was violated it wasn't and the these proceedings are