[00:00:00] Speaker 02:
United States versus Rodriguez-Para, 24-6099.

[00:00:15] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 03:
My name is Kathleen Chen, and I represent the appellate, Mr. Jose Rodriguez-Para.

[00:00:22] Speaker 03:
During his allocution, Mr. Rodriguez-Para disagreed with the PSR's allegation that he had been drunken and violent during his arrest.

[00:00:30] Speaker 03:
The district court could have declined to address these factual objections on procedural grounds, but that's not what it did.

[00:00:36] Speaker 03:
Instead, it concluded that the allegations in the pre-sentence report were true and that Mr. Rodriguez's contrary factual allegations were false.

[00:00:46] Speaker 03:
That was clear error.

[00:00:48] Speaker 03:
When there is a factual objection to an allegation in the pre-sentence report,

[00:00:52] Speaker 03:
The district court cannot simply rely on the allegation to overrule the objection.

[00:00:56] Speaker 03:
Instead, it can rely on the disputed allegation only if it is proven by a preponderance of the evidence.

[00:01:03] Speaker 03:
The pre-sentence report or the allegation in the pre-sentence report itself is insufficient to prove the fact.

[00:01:09] Speaker 03:
But that's what's happened here.

[00:01:11] Speaker 03:
There was a dispute about what happened on the night when Mr. Rodriguez was arrested.

[00:01:16] Speaker 03:
The pre-sentence report said that he was drunk

[00:01:18] Speaker 03:
hit four cars, and was violent and insulting to police and medical personnel.

[00:01:23] Speaker 03:
Mr. Rodriguez denied being drunk, denied hitting the cars, and said he was never disrespectful to police.

[00:01:31] Speaker 02:
That was after he did object.

[00:01:33] Speaker 02:
That's true.

[00:01:34] Speaker 02:
Given several opportunities to do so.

[00:01:37] Speaker 02:
And on this record, as I read it,

[00:01:40] Speaker 02:
He never specifically said he was objecting to the PSR, nor did his lawyer, whose lawyer was there after his statements.

[00:01:50] Speaker 02:
Even his lawyer never said, just to be clear, Your Honor, these are objections to the PSR, and kind of left it at that.

[00:01:58] Speaker 02:
That's true, Your Honor.

[00:01:59] Speaker 02:
What do we do about that?

[00:02:00] Speaker 02:
It's kind of a mess.

[00:02:02] Speaker 03:
I agree that the dispute is clearly raised untimely, and the district court would have been well within its rights to say, under Rule 32

[00:02:11] Speaker 03:
F. This is late.

[00:02:12] Speaker 03:
I don't have to consider it.

[00:02:14] Speaker 03:
And also, of course, the district court is not required to hear pro se objections by someone who's represented by counsel.

[00:02:21] Speaker 03:
But this situation, I think, is squarely addressed, both by Harrison, particularly when you read it in conjunction with Jarvey.

[00:02:29] Speaker 02:
And in those cases- Because the court opened the door.

[00:02:32] Speaker 03:
The court opened the door.

[00:02:33] Speaker 03:
And I think here, what really takes this case and makes it a real dispute is the district court says,

[00:02:40] Speaker 03:
He says, directly addressing Mr. Rodriguez's statements, your statements are directly contrary to the PSR and wildly implausible.

[00:02:48] Speaker 03:
And then he chooses to rely on the PSR statements.

[00:02:51] Speaker 03:
And this mirrors very closely what happened in Harrison, where the defendant makes pro se statements that are, as this court recognized, not precise.

[00:03:02] Speaker 03:
She says, that was all wrong.

[00:03:04] Speaker 03:
The amounts are wrong.

[00:03:05] Speaker 01:
Does it make any difference, though, that in Harrison, the timing of the statement was different?

[00:03:12] Speaker 01:
The defendant interjected at the moment in the hearing when the court was asking about objections to the PSR.

[00:03:23] Speaker 01:
Council said it didn't object, and then the defendant

[00:03:29] Speaker 01:
spontaneously jumped in.

[00:03:33] Speaker 01:
And then Harrison said the objection was therefore preserved.

[00:03:40] Speaker 01:
Well, I guess the court also kind of paraphrased the objections.

[00:03:43] Speaker 01:
So that happened as well.

[00:03:45] Speaker 01:
But the Harrison court said the objection is preserved.

[00:03:48] Speaker 01:
But here, there was no interjection at that particular point in the sentencing hearing.

[00:03:55] Speaker 01:
Why shouldn't that make a difference?

[00:03:57] Speaker 03:
I don't think it makes a difference, because the way I read Harrison, the thing that really makes a difference is the district court recognizing that the defendant has a disagreement with the PSR.

[00:04:06] Speaker 03:
That's what this court says is really dispositive.

[00:04:09] Speaker 03:
The district court is saying,

[00:04:10] Speaker 03:
says the defendant, oh, so you disagree with the amounts that are on there.

[00:04:13] Speaker 03:
And that is when there is a recognition of this factual dispute.

[00:04:18] Speaker 03:
And then the underlying principles that this court is relying on to recognize that untimely objection are, of course, the district court's discretion to hear untimely objections at any point before the sentence is imposed, which, of course, applies with equal

[00:04:32] Speaker 03:
force to an objection raised during allocution.

[00:04:35] Speaker 03:
And I would also draw this court's attention to its decision in United States versus Jarvey, where, of course, there the problem is the defendant was not allowed to make his objection.

[00:04:45] Speaker 03:
However, this court said that would have been improper as well.

[00:04:47] Speaker 03:
But this defendant's right to allocute on his own behalf and to make any argument in support of mitigating a sentence includes the right to raise these untimely pro se objections to the pre-sentence report.

[00:05:02] Speaker 01:
The defendant the court didn't restrict the defendant in his opportunity to allocute There's no allocution error however, but I think in fact in fact didn't the court even give him a second chance to speak after he did the allocution and

[00:05:22] Speaker 01:
And then the counsel talked to it.

[00:05:24] Speaker 01:
And then the court says, do you have anything else?

[00:05:26] Speaker 01:
So there really wasn't any restriction.

[00:05:29] Speaker 01:
Of course.

[00:05:29] Speaker 03:
And I agree.

[00:05:31] Speaker 03:
There's absolutely no allocution error.

[00:05:32] Speaker 03:
And I wouldn't rely on Jarvey for the allocution error principles.

[00:05:36] Speaker 03:
But I think Jarvey does show that it's not improper for a defendant to object to the pre-sentence report during his allocution.

[00:05:43] Speaker 03:
And I would note that this court in Jarvey.

[00:05:46] Speaker 01:
But a defendant could get up an allocute and make all kinds of objections, some of which would be timely, some may be untimely, some may not have any basis at all.

[00:05:59] Speaker 01:
I mean, there isn't a restriction on what can be said.

[00:06:02] Speaker 01:
But just because something can be said doesn't mean that it's a good argument.

[00:06:08] Speaker 03:
Your Honor, and I take your point very well.

[00:06:10] Speaker 03:
I've read many allocutions.

[00:06:13] Speaker 03:
But I do think Jarvey is instructive on this point.

[00:06:15] Speaker 03:
So one, in Jarvey, it's actually similar to Harrison, the defendant's objecting to the drug quantities in the pre-sentence report.

[00:06:22] Speaker 03:
And this court notes that that's an untimely objection, but it also reminds the district court that it has a discretion to resolve that objection and encourages the district court to do so on remand.

[00:06:31] Speaker 03:
And I looked up what happened to Mr. Jarvey on remand, and he got time served after initially being sentenced to 90 months.

[00:06:37] Speaker 03:
And so similar to what happened to Ms.

[00:06:40] Speaker 03:
Harrison,

[00:06:41] Speaker 03:
These untimely pro se objections, which went to the heart of the sentencing recommendation, were things that the district court could, with good cause, make an untimely ruling on and did.

[00:06:53] Speaker 03:
And it did make a substantial difference to the sentence.

[00:06:55] Speaker 03:
And although these factual objections did not go to the guidelines range, they did go to something that was important to the sentencing.

[00:07:05] Speaker 03:
Of course, the district court repeatedly said that it was concerned about what happened during the night of the arrest.

[00:07:09] Speaker 03:
And it explicitly identified Mr. Rodriguez's allegedly or disputedly drunken violent behavior on the night of his arrest as a reason to impose upward.

[00:07:21] Speaker 03:
And in fact, it said, I never impose an upward variance in a legal reentry case.

[00:07:28] Speaker 03:
I'm not sure I've ever done it.

[00:07:29] Speaker 03:
But the thing that makes this case stand out to me is that Mr. Rodriguez-Para, or one of the three things, but one of them,

[00:07:36] Speaker 03:
is that when you were arrested, you were disrespectful to police, and you were being drunk.

[00:07:41] Speaker 03:
And so just like in Harrison and Jarvey, these are disputed facts that really go to what sentence should be imposed.

[00:07:49] Speaker 03:
And so similar to those cases, I think these are the kinds of disputes that the district court could have decided to resolve on time.

[00:07:58] Speaker 01:
Let me ask you about another case.

[00:08:00] Speaker 01:
Sure.

[00:08:01] Speaker 01:
decided two years after Harrison, and that would be United States against Smith.

[00:08:06] Speaker 01:
There we affirmed the District Court's reliance on the PSR's facts, and we said that the defense counsel had the opportunity to supplement his argument based on the defendant's allocution contesting the PSR, which counsel declined.

[00:08:23] Speaker 01:
And here counsel didn't pick up.

[00:08:27] Speaker 01:
on the allocution objection.

[00:08:31] Speaker 01:
So how is this case different from Smith?

[00:08:35] Speaker 03:
Your Honor, forgive me.

[00:08:36] Speaker 03:
I haven't read Smith, so I can't directly comment on this.

[00:08:39] Speaker 01:
Same author as inheritor.

[00:08:41] Speaker 03:
But one thing I think is really important here is the district court actually recognized the disagreement.

[00:08:49] Speaker 03:
And then it said, you're disagreeing with the PSR.

[00:08:51] Speaker 03:
That's implausible.

[00:08:53] Speaker 03:
And he relied on the PSR.

[00:08:54] Speaker 03:
And so the district court,

[00:08:56] Speaker 03:
was not required to decide what happened on the night of December 28.

[00:09:01] Speaker 03:
But having recognized this disagreement, he could not then say, you know, that's contrary to the PSR, so I'm going to go with the PSR.

[00:09:09] Speaker 03:
That move of weighing what Mr. Rodriguez said against the allegations in the PSR, and then treating the PSR as evidence that Mr. Rodriguez-Para's objection was false, that's the error.

[00:09:22] Speaker 01:
What if the court had just said nothing and the execution happens, Mr. Rodriguez-Parr says what he said, the court says thank you very much, goes ahead and imposes the sentence, that's it.

[00:09:40] Speaker 03:
That's a totally different case.

[00:09:42] Speaker 03:
I think that's actually very close to it.

[00:09:43] Speaker 01:
Well, OK.

[00:09:45] Speaker 01:
Maybe it is.

[00:09:47] Speaker 01:
But when the court dismisses the objection and says it's wildly implausible, could that be understood as saying, well, I'm just not going to consider that?

[00:10:02] Speaker 03:
I don't think so.

[00:10:03] Speaker 03:
Because the reason the district court says, if you look at his statement, he says, that's directly contrary to the presented support.

[00:10:08] Speaker 03:
That's wildly implausible.

[00:10:10] Speaker 03:
I think because the district court seems to be saying, you know, that can't be true.

[00:10:14] Speaker 03:
It's not in the pre-sentence report.

[00:10:16] Speaker 03:
What you have is a factual weighing.

[00:10:18] Speaker 02:
Well, he was looking at the credibility of Mr. Rodriguez.

[00:10:21] Speaker 03:
And, Your Honor, I don't think there's any basis to make a judgment of Mr. Rodriguez's credibility unless you are taking the pre-sentence report as evidence.

[00:10:29] Speaker 03:
And, Your Honor, I think, again, if one imagines

[00:10:33] Speaker 03:
the Jarvie case, where instead Mr. Jarvie had been allowed to allocute and been allowed to say, these amounts in the pre-sentence report are wrong.

[00:10:41] Speaker 03:
I think that court case makes clear this court would have said it would have been proper for the district court to treat that as a factual objection.

[00:10:51] Speaker 02:
Rule 32 also has a good cause provision.

[00:10:55] Speaker 02:
And couldn't we read the court's reaction to the statement?

[00:10:59] Speaker 02:
Basically, this isn't a good faith objection.

[00:11:04] Speaker 02:
I'm just dismissing it out of hand.

[00:11:08] Speaker 03:
Your Honor, I don't think so.

[00:11:09] Speaker 02:
That would be an abusive discretion type review.

[00:11:13] Speaker 03:
Your Honor, there's no finding as to good cause.

[00:11:15] Speaker 03:
And I don't think there has to be one on the record.

[00:11:17] Speaker 03:
There wasn't in Harrison.

[00:11:18] Speaker 03:
All that happened in Harrison is that the district court said, oh, so you disagree with the quantities in the pre-sentence report.

[00:11:26] Speaker 03:
And then she goes with the pre-sentence report, and this court found that there was an improper factual finding, an improper reliance on the pre-sentence report.

[00:11:32] Speaker 03:
So again, I would encourage this court to go back to Harrison.

[00:11:35] Speaker 03:
Even though there was no good cause finding, this court found that there was a ruling under 32F, the good cause late finding.

[00:11:43] Speaker 03:
And I actually think this is the kind of case where when there is a fact that goes to the court,

[00:11:49] Speaker 03:
of the district court's reason for sentencing, such as whether you had 1.5 kilograms of meth or 40 kilograms of meth, or whether you were the mean drunk whose behavior was so outrageous that you were going to be the first legal reentry defendant who gets an upward variance in front of this judge, that could be a good cause.

[00:12:08] Speaker 02:
We agree with that.

[00:12:09] Speaker 02:
And in this case, then, should the judge have adjourned the sentencing proceeding,

[00:12:16] Speaker 02:
and then required the government to come back and basically prove up that portion of the PSR.

[00:12:23] Speaker 02:
I think the district court had two choices.

[00:12:25] Speaker 02:
Then we'd have another sentencing hearing and an evidentiary proceeding.

[00:12:32] Speaker 03:
The district court had, I think, basically two options.

[00:12:35] Speaker 03:
It could have ignored it or just not made a ruling, and then I think there would have really been no appeal.

[00:12:42] Speaker 03:
because there would be nothing to point to to say that the district court's making a factual finding against us.

[00:12:47] Speaker 03:
But I don't think this is like a technicality.

[00:12:49] Speaker 03:
I think really the district court was saying, Mr. Rodriguez-Para, I think you're lying.

[00:12:53] Speaker 03:
And I think you're lying because that's not what the pre-sentence report said.

[00:12:56] Speaker 03:
And that is exactly the kind of factual finding where the district court is just taking the PSR at its word and elevating it over the objection because it's what the PSR says that the federal rules in this court's cases prohibit.

[00:13:09] Speaker 03:
Even though I'm acknowledging that this case could easily turn out a different way if the sentencing had gone differently, I'm not saying this is a technicality.

[00:13:15] Speaker 03:
I think, in fact, the district court decided he was lying because that's not what's in the PSR, and that is not what's allowed.

[00:13:21] Speaker 02:
Gosh, but I'd be a little uncomfortable writing an opinion that tells the district courts, don't engage with a defendant at allocution because

[00:13:32] Speaker 02:
You might back yourself into reversible air.

[00:13:36] Speaker 02:
I worry about that.

[00:13:39] Speaker 03:
I take your honor's concern.

[00:13:40] Speaker 03:
This isn't a punishment of the district court.

[00:13:43] Speaker 03:
And again, I think this court's decisions in Harrison and Jarvey just reiterate that when a defendant makes an untimely pro se objection to the pre-sentence report, he or she isn't doing anything wrong.

[00:13:54] Speaker 03:
The district court has options.

[00:13:56] Speaker 03:
If he exercises its discretion to decide what is true and what is false,

[00:14:01] Speaker 03:
the district court can't just rely on the pre-sentence report.

[00:14:05] Speaker 03:
And there's a lot of good reasons for that.

[00:14:06] Speaker 03:
Of course, the pre-sentence report are just allegations.

[00:14:09] Speaker 03:
They're untested.

[00:14:10] Speaker 03:
And as Harvey and Jarvie demonstrate, or Harrison and Jarvie demonstrate, sometimes they're wrong.

[00:14:16] Speaker 03:
Ms.

[00:14:16] Speaker 03:
Harrison got 14 years off on remand because the government was not able to prove those allegations.

[00:14:21] Speaker 02:
So how about if we interpret what happened is basically the court accepted the statements that allocution

[00:14:30] Speaker 02:
as a plea for mitigation of the sentence, rather than as an objection to the PSR.

[00:14:38] Speaker 02:
Why isn't that good enough?

[00:14:41] Speaker 03:
I just don't think that that's what the district court statement said.

[00:14:44] Speaker 03:
Again, the district court said those statements are directly contrary to the pre-sentence report.

[00:14:49] Speaker 03:
And that's substantively identical to what the district court said in Harrison.

[00:14:54] Speaker 03:
And then it says,

[00:14:56] Speaker 03:
I don't think that's true.

[00:14:57] Speaker 03:
That's implausible.

[00:14:58] Speaker 03:
He's making a judgment as to the truth of the statement.

[00:15:00] Speaker 03:
And that is just simply not permitted.

[00:15:03] Speaker 01:
Do you think that a reversal would incentivize sentencing courts to just sit silent in response to allocution?

[00:15:16] Speaker 03:
You know, I see I'm out of time.

[00:15:18] Speaker 03:
And I think this is a good question.

[00:15:19] Speaker 03:
I thought about this.

[00:15:20] Speaker 03:
But I think that, you know,

[00:15:24] Speaker 03:
this court should take the position that judges are trying to do their best.

[00:15:28] Speaker 03:
And if an important factual dispute arises regarding something like the drug quantity or what really happened on the night that this man was arrested, especially if that dispute goes to the reason that this judge is going to give for giving a variance or not, then there may well be good cause for the district court to reopen sentencing.

[00:15:49] Speaker 03:
And I've seen sentencing continued.

[00:15:51] Speaker 03:
But there's also going to be cases where the district court's going to be well within his discretion and not abuse his discretion to say, the time for that has passed, and I'm not going to get into it.

[00:16:02] Speaker 03:
And that is a decision that the district court can make.

[00:16:05] Speaker 03:
And it's a discretion.

[00:16:06] Speaker 03:
The one thing the district court cannot do and that the district court

[00:16:11] Speaker 03:
made a mistake here is by deciding that what the district court or what the defendant said is false simply because it's contrary to the PSR.

[00:16:18] Speaker 03:
And so for that reason, we would ask this court to vacate and remain free sentencing.

[00:16:22] Speaker 03:
Thank you.

[00:16:28] Speaker 00:
Good morning, Your Honors, and may it please the Court, Elizabeth Joines for the United States.

[00:16:33] Speaker 00:
The appellant did not preserve his argument for appeal, so the applicable standard of review should be plain error, and this Court may affirm for three different reasons.

[00:16:43] Speaker 00:
First, this Court may affirm because the appellant has waived review on plain error.

[00:16:47] Speaker 00:
Second, even if this court exercised its discretion to review for plain error, the appellant can't show plain error.

[00:16:55] Speaker 00:
And third, even if the appellant's argument had been preserved, the district court did not abuse its discretion.

[00:17:02] Speaker 00:
As to the first argument,

[00:17:06] Speaker 00:
The appellant has conceded that he didn't make timely objections to the facts contained within the PSR.

[00:17:11] Speaker 00:
So the question here is whether the statements that he made during his allocution constituted objections to the PSR.

[00:17:18] Speaker 00:
And I think from the government's perspective, it's ambiguous at best whether the comments that the defendant made during his allocution constituted objections.

[00:17:27] Speaker 01:
But wasn't the court's response indicative that the judge thought that it was an objection to the PSR?

[00:17:36] Speaker 01:
Because the court specifically referenced the PSR.

[00:17:40] Speaker 00:
Your Honor, I think it's important to note that here we were far past the Rule 32 I3B stage.

[00:17:47] Speaker 01:
Everybody agrees it was untimely.

[00:17:52] Speaker 01:
But that isn't your argument.

[00:17:53] Speaker 01:
Your argument was that it wasn't

[00:17:55] Speaker 01:
clearly an objection to the PSR, but the court seemed to think it was.

[00:18:00] Speaker 00:
Well, Your Honor, I think the reason that I say that is because since we're outside of that time frame where the PSR was being objected to and adopted, we're now in Rule 32 I4A.

[00:18:12] Speaker 00:
We're focused on mitigating statements, and that's what the district court... All right, then what if Mr. Rodriguez-Para stood up at allocution and said,

[00:18:23] Speaker 01:
Said, Your Honor, I know that you asked a little earlier about an objection to the PSR.

[00:18:29] Speaker 01:
I should have gotten up then and said something.

[00:18:31] Speaker 01:
I'm going to say something now.

[00:18:32] Speaker 01:
I didn't hit all those cars.

[00:18:34] Speaker 01:
I was not disrespectful to the police.

[00:18:36] Speaker 01:
The PSR is wrong, and the government should show otherwise.

[00:18:42] Speaker 01:
Still not preserved?

[00:18:44] Speaker 00:
At that point, Your Honor, I think it would have been clear, it would have been sufficient to alert the district court to the fact that he was making a PSR objection.

[00:18:51] Speaker 01:
But the court thought he was.

[00:18:53] Speaker 01:
He said it's inconsistent with the PSR.

[00:18:56] Speaker 00:
I think that can be differently understood, Your Honor.

[00:18:58] Speaker 00:
I think it can be understood as a statement about minimization of responsibility in an attempt to mitigate during his allocution that's separate and apart from... If there's an ambiguity, who should benefit from that?

[00:19:11] Speaker 00:
Well, I understand if Your Honor's speaking towards the rule of lenity, but here I do think the burden is on the defendant to clarify whether he's... Is that what it would be?

[00:19:19] Speaker 01:
Rule of lenity?

[00:19:20] Speaker 01:
I don't know if it's a rule.

[00:19:21] Speaker 01:
Maybe it is.

[00:19:22] Speaker 00:
Well, Your Honor, from my perspective, I think if the defendant is attempting to make an untimely objection to the PSR, then he needs to clarify for the court, to put the court on notice, as even Harrison says, to sufficiently raise the issue.

[00:19:36] Speaker 00:
And here, I don't think it was clear to the district court that it was a PSR objection.

[00:19:41] Speaker 02:
I think it... And he had counsel also.

[00:19:47] Speaker 02:
I mean, after the statements, as we were discussing, the counsel didn't say or clarify to the court that there was an objection to the PSR here.

[00:19:58] Speaker 00:
That's correct, Your Honor.

[00:19:59] Speaker 00:
The counsel did not clarify that.

[00:20:01] Speaker 02:
I'm not sure how it cuts, but I think I agree with Judge Matheson that at some level, it's clear there's an objection here, and at some point, engagement might be necessary.

[00:20:14] Speaker 00:
Well, Your Honor, even if we were to accept that the defendant were attempting to make an objection here, I don't think that the District Court made a factual finding about the PSR's accuracy in making those remarks.

[00:20:26] Speaker 00:
Right after he says that the appellant's statements were wildly implausible and directly contrary to the PSR, he concludes that those statements did not advance his cause

[00:20:36] Speaker 00:
for sentencing purposes, which I think further speaks to the fact that the court was seeing this as an attempt to mitigate, but really the court disagreed and found them as aggravating statements, as this attempt to minimize his own responsibility in this conduct.

[00:20:51] Speaker 01:
But didn't the court, when he was sentenced, rely on what the PSR said happened at the time of this incident, the time of the arrest?

[00:21:05] Speaker 00:
Yes, Your Honor.

[00:21:05] Speaker 00:
The court said that that conduct from December 28, 2023 influenced its decision.

[00:21:11] Speaker 00:
So I don't think there's a question that the court relied on the facts contained within the PSR.

[00:21:16] Speaker 01:
So you can't really, if there was error, you can't really argue harmless error then.

[00:21:20] Speaker 00:
I agree, Your Honor.

[00:21:21] Speaker 00:
That's correct.

[00:21:22] Speaker 00:
I just don't believe that the court was alerted to the objection here or that it made a factual finding.

[00:21:28] Speaker 00:
I think it saw this entire statement from the defendant within the realm of 32I4A2.

[00:21:36] Speaker 00:
which are mitigating statements during allocution.

[00:21:40] Speaker 00:
And because of that, if the defendant had been attempting to make an objection, he should have clarified it.

[00:21:46] Speaker 00:
And because he didn't clarify it, I think he didn't preserve his argument and has forfeited it.

[00:21:51] Speaker 00:
And so that brings us to plain error review.

[00:21:55] Speaker 00:
Because of that, the appellant didn't brief plain error review in the alternative in its opening brief or in its reply brief, and I think that that issue has been waived.

[00:22:05] Speaker 00:
And if there are no further questions, I would simply ask this court to affirm.

[00:22:08] Speaker 01:
Well, wait a minute.

[00:22:10] Speaker 01:
You had three points.

[00:22:11] Speaker 00:
Yes, Your Honor.

[00:22:11] Speaker 01:
And the third one was, even if it was preserved, no abuse of discretion.

[00:22:16] Speaker 01:
So could you address why there was no abuse of discretion?

[00:22:19] Speaker 00:
Yes, Your Honor.

[00:22:20] Speaker 01:
What do you mean by that?

[00:22:21] Speaker 01:
What was the... Well, go ahead.

[00:22:24] Speaker 00:
Well, I don't mean to reiterate, so please cut me off.

[00:22:27] Speaker 00:
But first, the court certainly has discretion as to whether it's going to entertain and consider untimely objections or pro se objections.

[00:22:38] Speaker 00:
And it can exercise its discretion not to do so.

[00:22:42] Speaker 00:
And the government's position would be that it

[00:22:44] Speaker 00:
It didn't engage here.

[00:22:45] Speaker 00:
It asked, as Your Honors mentioned previously, whether the defendant had anything further to say in his allocution.

[00:22:51] Speaker 00:
And he let him say everything that he wanted.

[00:22:53] Speaker 00:
And then he went on to make it statements of reasons and impose sentence.

[00:22:58] Speaker 00:
So I think from that perspective, the district court did not engage, did not fact find, and did not abuse its discretion because it had discretion not to entertain these.

[00:23:07] Speaker 01:
Well, if it did engage, was there any abuse of discretion in the way it handled

[00:23:13] Speaker 01:
the matter when it said this is directly contrary to the PSR and wildly impossible.

[00:23:19] Speaker 01:
Is that no abuse of discretion?

[00:23:23] Speaker 00:
Your Honor, again, I apologize.

[00:23:25] Speaker 00:
I don't mean to reiterate myself.

[00:23:27] Speaker 00:
That's OK.

[00:23:28] Speaker 01:
I may need it to understand your argument.

[00:23:31] Speaker 00:
Yes, Your Honor.

[00:23:32] Speaker 00:
Even if he engaged, I don't see his statements as having fact found.

[00:23:38] Speaker 00:
I think that he was, again, commenting more on mitigating material than on the accuracy of the PSR.

[00:23:46] Speaker 00:
So it could have asked for good cause from the defendant

[00:23:49] Speaker 00:
explain why it should entertain these objections that were untimely, but it didn't receive, again, I think that speaks to the fact that the district court didn't receive these as objections.

[00:24:02] Speaker 00:
So because it didn't engage in fact find, I don't think it abused its discretion.

[00:24:07] Speaker 00:
And I think, Your Honor, the case that Your Honor mentioned previously, Smith, I think supports that.

[00:24:13] Speaker 00:
If there are no further questions, I'll just ask this court to affirm.

[00:24:17] Speaker 02:
Thank you.

[00:24:18] Speaker 02:
Ms.

[00:24:18] Speaker 02:
Shen, you used your time, but if you'd like another two minutes, you may.

[00:24:28] Speaker 03:
I'd just like to briefly address a couple of the points the government made.

[00:24:31] Speaker 03:
First, it never challenged whether there was an objection or that the district court was adequately alerted to Mr. Rodriguez's position.

[00:24:38] Speaker 03:
And so I think that's waived.

[00:24:40] Speaker 03:
But even so, as this court's recognized, the district court did recognize this as an objection in a manner that's very similar to Harrison.

[00:24:47] Speaker 03:
So I think clearly there was that objection.

[00:24:49] Speaker 03:
And again, Your Honor, I think just the main point I'd like to make is the district court exercised its discretion to hear this objection.

[00:24:56] Speaker 03:
It resolved it against the defendant based solely on the allegations of the PSR.

[00:25:00] Speaker 03:
And that is clear error.

[00:25:01] Speaker 03:
And therefore, Mr. Rodriguez-Parr should receive a new sentence.

[00:25:04] Speaker 03:
Thank you so much.

[00:25:06] Speaker 02:
Thank you, counsel.

[00:25:07] Speaker 02:
Counsel excused.

[00:25:08] Speaker 02:
The case is submitted.

[00:25:09] Speaker 02:
And the court will be in recess until tomorrow morning.