[00:00:01] Speaker 03: Okay, we'll call case number 24-6262, United States versus Threat. [00:00:13] Speaker 03: Thank you, counsel. [00:00:30] Speaker 01: Good morning, Your Honors. [00:00:31] Speaker 01: Amy Sanyo on behalf of the appellant, Mr. D'Angelo III. [00:00:34] Speaker 01: May it please the court. [00:00:36] Speaker 01: Rule 32 imposes an affirmative duty on the district court to verify that a defendant and his counsel have read and discussed the pre-sentence report. [00:00:46] Speaker 01: Here, while the court initially satisfied this duty through its routine question to defense counsel at the beginning of the hearing, that changed during allocution. [00:00:56] Speaker 01: when Mr. Threatt stated that actually his lawyer hadn't reviewed and discussed the PSI with him. [00:01:02] Speaker 01: At that point, the district court had a couple of options. [00:01:05] Speaker 01: It could have accepted Mr. Threatt's claim and delayed sentencing, or it could have asked follow-up questions to resolve any potential conflict between what Mr. Threatt and his counsel had each said. [00:01:15] Speaker 02: Counsel, it seems like you are really expecting a lot of the district court's sua sponte duty here. [00:01:25] Speaker 02: And this ties in a little bit to this threshold question that we have to decide, which is whether the error is preserved, right? [00:01:34] Speaker 02: So when you say that at this point the district court had a couple of options, well, no one put the district court on notice about what those options were or what you wanted to have happen, right? [00:01:47] Speaker 02: And I'm not sure how we should be thinking about that, both in terms of whether the district court erred, but also in terms of whether the issue is preserved. [00:01:55] Speaker 01: So to start with your first point, Your Honor, I don't think we're expecting a lot of the district court at all. [00:02:01] Speaker 01: I've never seen a case, the government has not cited a case where a situation like this happened. [00:02:08] Speaker 01: There's four cases cited in the briefing where the defendant said himself, hey, I've never seen the PSR. [00:02:15] Speaker 01: And in every single one of those cases, the district court knew exactly what to do. [00:02:19] Speaker 01: It paused the proceedings, it inquired further, it got to the bottom of things, and then it made a finding. [00:02:25] Speaker 01: whether or not the review actually happened. [00:02:28] Speaker 01: In one of the cases in Smith, that was in the same district, the Western District of Oklahoma, with a different panel lawyer. [00:02:36] Speaker 01: That's not the error on appeal because the district court fixed it, but the district court found that the defendant was telling the truth. [00:02:45] Speaker 01: We're not expecting a lot if the district court is told, affirmatively, you haven't met your duty to verify because I'm telling you that this review didn't happen. [00:02:55] Speaker 01: All the district court has to do is then resolve that dispute, ask a few more questions, get more information like district courts do all the time during the course of their regular duties. [00:03:05] Speaker 03: So is your position that it's sort of self-executing that if the district court asks, you know, makes an effort to [00:03:15] Speaker 03: determine that counsel has reviewed the PSR with his or her client and, you know, the client says no, that the rule, you know, in and of itself contemplates that the district court is going to take further action without anyone even saying anything. [00:03:37] Speaker 01: That's right, Your Honor. [00:03:38] Speaker 01: The text of the rule is clear. [00:03:40] Speaker 01: It requires verification. [00:03:42] Speaker 01: It says the district court must verify. [00:03:45] Speaker 01: And if the defendant says no, even if his counsel says yes, then what the district court is presented with is a conflict, a dispute. [00:03:54] Speaker 01: The district court has to resolve, otherwise it can't- A dispute between the lawyer and the client? [00:04:00] Speaker 02: What is the dispute that you say needs to be resolved? [00:04:04] Speaker 01: In general, Your Honor, or- Here. [00:04:06] Speaker 01: Here, it's not even clear that there was a dispute. [00:04:09] Speaker 01: If counsel has asked about an opportunity, that's perfectly consistent with Mr. Threatt saying, [00:04:15] Speaker 01: That opportunity never actually happened. [00:04:17] Speaker 01: I never actually reviewed the PSR with him. [00:04:20] Speaker 01: But if we can see that as a dispute, then that's something that the district court has to resolve before it can move on, because it can't possibly be verification if the district court doesn't know which version of events is true. [00:04:33] Speaker 02: Well, how should we be thinking about what we have in the record that evidences the district court's understanding of your client's claim? [00:04:45] Speaker 02: during his allocution, because you cite to us, you rely on Holguin-Hernandez for this proposition that you don't need magic language, fully agree. [00:04:56] Speaker 02: But Holguin doesn't really speak to how we're to look at what the district court then says, because that seems to me to be instructive of, okay, here's a court saying, this is how I receive your statement. [00:05:09] Speaker 02: And here, the district court received it as, I'm not gonna take up [00:05:14] Speaker 02: any of the defendant's complaints during his allocution aimed at his defense counsel. [00:05:20] Speaker 02: So it seems to me the district court just understood this as a, and even your client said, ineffective assistance. [00:05:28] Speaker 02: So why isn't it reasonable at that point for the district court to understand this not as a rule 32 problem, but as a problem about, okay, this defendant is unhappy with his lawyer and that's not for right now. [00:05:42] Speaker 01: So we can look to the decisions of the other circuits, Mark and Scott, where almost exactly the same thing happened, where a defendant stated on the record during sentencing, I've never seen the PSR. [00:05:58] Speaker 01: I don't know what it says. [00:05:59] Speaker 01: And in those cases, the court applied the same core rule. [00:06:04] Speaker 01: They didn't cite Hogan Hernandez, but the same rule of it was brought to the district court's attention. [00:06:10] Speaker 01: That's not, to my understanding, a subjective inquiry of what the district court in its own mind was believing, whether it was listening well enough. [00:06:18] Speaker 01: It's whether it was brought to the attention. [00:06:21] Speaker 01: And this is during allocution. [00:06:23] Speaker 01: And so this court has said in Jarvey that allocution is a special time. [00:06:27] Speaker 01: That's the time for the defendant as an individual to bring concerns up with the court related to sentencing. [00:06:33] Speaker 01: And so the district court wasn't free to decide not to take it up, whether the district court wasn't listening or he didn't understand. [00:06:42] Speaker 00: Council, can I interrupt you for a second? [00:06:46] Speaker 00: You admit that we're on plain error, excuse me, plain error review here, assuming error? [00:06:55] Speaker 01: No, Your Honor, we don't agree that we're on plain error. [00:06:58] Speaker 01: We think this is preserved just as it would be in the Third Circuit and the First Circuit, but we can satisfy plain error, which we argued in the alternatives. [00:07:08] Speaker 00: What is the injury? [00:07:10] Speaker 01: So for prejudice, the requirement that this court set out in Ron Hell under Rule 32 is very similar, if not the same, as the prejudice inquiry would be for third prong for substantial rights on plain error. [00:07:33] Speaker 01: That's basically, we have to show that the error mattered. [00:07:35] Speaker 01: And in Ron Howell, we do that in two ways. [00:07:38] Speaker 01: We first have to offer evidence or assert contradictory facts to challenge the PSR's accuracy, which we have done here. [00:07:47] Speaker 01: And then second, we have to show that that error, that whatever mistake it was in the PSR, that that would have mattered, that that could have affected the sentence. [00:07:56] Speaker 00: And we've done both of those things here. [00:08:03] Speaker 01: So the prejudice, Your Honor, is that Mr. Threatt was not able to challenge two enhancements that significantly affected his guidelines range. [00:08:13] Speaker 01: It doubled his guidelines range from what would have been 77 to 96 months, all the way to 188 to 235 months, which was above the 180 month statutory maximum, which is what he ultimately received here. [00:08:30] Speaker 01: And so he was not able to challenge [00:08:33] Speaker 01: these enhancements which were based on hearsay allegations, sometimes multiple levels of hearsay, without actually any proof because it wasn't challenged, so the district court was allowed to accept them as true. [00:08:45] Speaker 01: And he didn't get the opportunity to actually engage in any sort of dispute about that and challenge them and have a chance to have those enhancements not apply. [00:08:57] Speaker 02: So how should we be thinking on that point about the fact that in defendant's sentencing memo, [00:09:03] Speaker 02: sort of takes up a factual challenge to the July arrest, and says it was a brief scuffle, and it was a fairly quick attempt at the headlock that failed quickly. [00:09:15] Speaker 02: I mean, it feels to me like those are the sorts of factual challenges that you would be mounting to object to the PSR's predicate facts in support of the enhancements. [00:09:28] Speaker 02: That didn't happen for reasons at issue here, perhaps. [00:09:32] Speaker 02: But that sentencing memo troubles me, because it suggests that the factual challenge was available. [00:09:40] Speaker 01: The sentencing memo that the attorney drafted was a legal challenge. [00:09:45] Speaker 01: It was to whether the facts as alleged in the PSR rose to the level of met the legal standard of that guideline, what is akin to aggravated assault. [00:09:57] Speaker 02: OK, so maybe you're answering my question. [00:09:59] Speaker 02: So you don't think that the sentencing memo is [00:10:02] Speaker 02: taking issue with the facts in the PSR. [00:10:04] Speaker 02: It doesn't do that explicitly for sure, but it's not even sort of doing it. [00:10:08] Speaker 01: It's not even sort of doing it, Your Honor. [00:10:10] Speaker 01: It's super clear, especially what counsel says at the sentencing hearing, that counsel's position is, Your Honor, this isn't aggravated assault. [00:10:19] Speaker 01: This is simple assault. [00:10:21] Speaker 01: It just doesn't rise to that level. [00:10:22] Speaker 01: The lawyer is saying, [00:10:25] Speaker 01: that these facts as they have been alleged just aren't good enough. [00:10:29] Speaker 01: Not that the facts didn't happen or not that what the officer alleges there are three layers of hearsay isn't actually what went on. [00:10:37] Speaker 02: And I also have, I'm really stuck on how to understand prejudice in this case. [00:10:42] Speaker 02: I know Judge Kelly was asking about this in terms of what you're showing is if you're on plain air, but I don't really even understand what your [00:10:50] Speaker 02: attempting to do with the attachments to the opening brief. [00:10:54] Speaker 02: And I see that you see in our law, because you're trying to be responsive to what you, I think, understand our law to have required, that to show prejudice, even for preserved rule 32 error, you have to point to something. [00:11:13] Speaker 02: And that's what you seem to be doing. [00:11:15] Speaker 02: But I don't understand where you [00:11:19] Speaker 02: where that requirement comes up. [00:11:21] Speaker 02: And I say that for two reasons. [00:11:23] Speaker 02: One is that Wrangel did not suggest there needed to be some sort of evidentiary showing. [00:11:31] Speaker 02: And that's weird because we don't take facts on appeal. [00:11:33] Speaker 02: That's not what we do. [00:11:35] Speaker 02: And then you rely on Martinez. [00:11:38] Speaker 02: It's unpublished. [00:11:39] Speaker 02: But that's a plain error case. [00:11:41] Speaker 02: So I guess my question is, if you could speak to [00:11:45] Speaker 02: Where do you see this requirement where an appellant has to all of a sudden develop facts on appeal to satisfy preserved prejudice for Rule 32? [00:11:56] Speaker 02: And is there any daylight between preserved prejudice and prong three, if you're on plain air? [00:12:02] Speaker 01: I don't think there's any daylight to answer that last question, Your Honor. [00:12:06] Speaker 01: But this comes directly from the court's precedent in not only Ron Hell, but Archer, which is applying Ron Hell, which is [00:12:16] Speaker 01: a case in which the defendant attempted to show prejudice by saying, I would have challenged the loss calculation. [00:12:23] Speaker 01: And the court says, uses the same language in Ron Hell, and that is offer evidence or assert contradictory facts. [00:12:32] Speaker 01: And so if your honor thinks that that's just a proffer, that's an offer of proof that actually doesn't require evidence, great. [00:12:38] Speaker 01: That's fine. [00:12:39] Speaker 01: We've done that. [00:12:40] Speaker 01: But we wanted to make sure every defendant that's ever tried this in the ten story has lost. [00:12:46] Speaker 01: So we wanted to make sure out of an abundance of caution that we were doing everything possible. [00:12:50] Speaker 02: Understood. [00:12:51] Speaker 02: And what are we supposed to do with it? [00:12:54] Speaker 02: Is it supposed to be, and we're not supposed to be resolving the merits of factual disputes. [00:12:58] Speaker 02: So are we supposed to receive it in your view, assuming the law requires it and you've complied with that? [00:13:04] Speaker 02: that we're supposed to say, aha, there actually is a problem because you've pointed to something you could do. [00:13:09] Speaker 01: So right, the court is absolutely not resolving facts. [00:13:13] Speaker 01: It's not a fact finder. [00:13:16] Speaker 01: What the court could do is, since this is the first time anyone has actually tried to fulfill the standard, the court could say, what we meant in Ron Helen Archer by assert contradictory facts was just that you have to make some sort of explanatory showing of why this would have mattered. [00:13:32] Speaker 01: that there's something in the PSR that you could have pointed to. [00:13:35] Speaker 02: I mean, I thought that when we say prejudice, we mean harmlessness. [00:13:40] Speaker 02: We mean prejudice as opposed to it's not structural. [00:13:44] Speaker 02: Rule 32 error isn't structural. [00:13:46] Speaker 02: So is that the wrong way to look at it, that our cases you think affirmatively require a proffer or something? [00:13:53] Speaker 02: It's not just that you point out the error by saying, [00:13:59] Speaker 02: here it is, the district court didn't fulfill its rule 32 duty and it's not harmless because we have to show prejudice the way you do in the ordinary case under a harmlessness standard. [00:14:09] Speaker 01: I think that would be the ordinary case for whatever reason in this specific context. [00:14:14] Speaker 01: It's sort of upside down land. [00:14:16] Speaker 01: I don't know why the court's opinions are not drafted that way, but [00:14:20] Speaker 01: You know, we are trying to engage with the standard as the court has written it. [00:14:23] Speaker 01: No, no. [00:14:23] Speaker 02: And I'm not, I think that's great. [00:14:27] Speaker 02: It's just a strange, it seems to be a strange, strange standard. [00:14:30] Speaker 01: It is strange. [00:14:30] Speaker 01: And I think maybe in the typical case, you know, ideally it wouldn't have been written this way in 1993 when Ron Hell was first published. [00:14:41] Speaker 01: But you know, I think typically it is harmlessness. [00:14:45] Speaker 01: But because this is a weird situation where even it's [00:14:49] Speaker 01: If it's preserved, the defendant has to actually do the pointing out and showing how it could have affected things. [00:14:53] Speaker 01: That's usually the government's burden if it's harmless error. [00:14:57] Speaker 01: But if that is the case here, then there isn't any daylight on plain error. [00:15:00] Speaker 01: And so essentially, the inquiries collapse, whether it's preserved or not. [00:15:07] Speaker 01: I see I have 12 seconds left, and I will reserve those 12 seconds for a rebuttal. [00:15:11] Speaker 01: Thank you, counsel. [00:15:12] Speaker 01: Thank you. [00:15:20] Speaker 04: May it please the court, counsel Cedric Bond, on behalf of the United States. [00:15:25] Speaker 04: I'd like to start with the question of preservation, because that is really the threshold question here before the court. [00:15:32] Speaker 04: Because the case here started with the sentencing hearing began with this question. [00:15:41] Speaker 04: Mr. Autry, have you and the defendant each had an opportunity to review and discuss [00:15:48] Speaker 04: the pre-sentence report, including addenda and revisions since the initial draft, the response, yes, Your Honor. [00:15:56] Speaker 04: Now this question is coming up before the court here, whether this statement toward the end of the allocution was sufficient to alert the court that that verification that he began his sentencing hearing with [00:16:15] Speaker 04: was not sufficient. [00:16:17] Speaker 03: Let me stop you for a second. [00:16:19] Speaker 03: So allocution is pretty sacred in this circuit. [00:16:25] Speaker 03: One of us sitting up here on the bench has been deemed to have committed an error by forgetting to allow it at a sentencing. [00:16:33] Speaker 03: It wasn't Judge Rossman. [00:16:36] Speaker 03: And we have a fairly recent body of case law that reverses courts who [00:16:44] Speaker 03: made a remark about what they plan to do at sentencing before allocution, ergo that they prejudged their sentence before the person had a chance to allocute. [00:17:01] Speaker 03: And that suggests pretty loudly to me that in this circuit, when a district judge has someone allocuting that they're supposed to listen and know that it's a person who may not be skilled in the law, [00:17:15] Speaker 03: but they should listen to them and take action and maybe even rely on what is said in their sentencing. [00:17:24] Speaker 03: That seems pretty important. [00:17:26] Speaker 04: Your honor, the allocution is a very important and within the bounds of the law, sacred time. [00:17:32] Speaker 04: This, this statement that Mr. Three made was not sufficient. [00:17:39] Speaker 04: to alert the court that he was making a legal objection a la rule 51B? [00:17:46] Speaker 03: I'm sorry, Your Honor. [00:17:47] Speaker 03: I've got a rule 51B objection. [00:17:50] Speaker 03: I know I'm a prisoner not skilled in the law, but my attorney didn't discuss this with me. [00:17:56] Speaker 03: And if he had, I have seven objections to the PSR that you don't even know if I saw. [00:18:05] Speaker 04: Your Honor, that's not what would be required. [00:18:09] Speaker 04: We don't even know if he saw it. [00:18:12] Speaker 04: Your Honor, the question is not whether this court right now knows whether Mr. Threatt saw the PSR, but whether the district court could reasonably infer from the court documents, defendant statements, and the statements of defense counsel [00:18:32] Speaker 04: whether it had satisfied its obligations under Rule 32 I-1A. [00:18:38] Speaker 02: And that's the standard under, oh, sorry. [00:18:39] Speaker 04: Oh, go ahead. [00:18:39] Speaker 02: That's the standard under RINHAL, right? [00:18:42] Speaker 02: Yes, Your Honor. [00:18:43] Speaker 02: So the issue is whether we're evaluating it as preserved. [00:18:48] Speaker 02: And I have a question for you about Holt in just a moment. [00:18:50] Speaker 02: Yes. [00:18:51] Speaker 02: Or if it's plain, the issue on error is evaluated by that legal standard. [00:18:56] Speaker 02: Is that correct? [00:18:57] Speaker 02: Yes, Your Honor. [00:19:00] Speaker 02: OK. [00:19:01] Speaker 02: irrespective of preservation, why would there be no error here under this standard? [00:19:07] Speaker 02: And if you could walk me through the government's position, really, most usefully would be chronologically, beginning from when the court asks the question, which didn't really track the language of the amended rule, but the court asks the question, and then what do we have in the record that would support the government's position under the grand health standard? [00:19:27] Speaker 04: Yes, Your Honor. [00:19:29] Speaker 04: the court's obligation under Rule 32i1a to make this verification, it is a flexible standard, also from Roanjel. [00:19:38] Speaker 04: And the court here in this case started the sentencing hearing by asking that question that I quoted there. [00:19:46] Speaker 04: And at that point, when counsel had given that unequivocal response, the court had satisfied its obligations under Rule 32i1a. [00:19:59] Speaker 04: and could proceed with sentencing, which is the concern behind this rule about proceeding with sentencing without having this happening. [00:20:08] Speaker 03: So procedurally, at that point in the hearing, could Mr. Threet have jumped up and disputed that? [00:20:18] Speaker 03: Or as a matter of procedure, is he supposed to wait until it's time to allocute if there's no evidence being put on? [00:20:26] Speaker 04: Your Honor, I think that that [00:20:28] Speaker 04: whether it's the proper procedure for it to be done or not, I think that when he hears his counsel making a false statement right there, I think that it would be reasonable for him to say something at that point. [00:20:42] Speaker 02: That seems just like a non-starter. [00:20:44] Speaker 02: I mean, it seems to require us to make assumptions that are either just fanciful or not supported by the record and not helpful in any event. [00:20:54] Speaker 02: I mean, what I'm trying to figure out under the standard that we're required to apply [00:20:58] Speaker 02: is what is it about this record that assuming the district court, assuming we spot you, that when the district court asked the question and got an answer, that its rule 32 duty was complete. [00:21:11] Speaker 02: What are we to do with the fact that we have a record that contains, no matter when, a defendant saying, that's not true. [00:21:19] Speaker 02: I didn't review it. [00:21:20] Speaker 02: So we have that indicia, that data point. [00:21:23] Speaker 02: We also have the absence of [00:21:26] Speaker 02: the sorts of factual objections that you would maybe typically expect to see, which appellant now explains why maybe those weren't made. [00:21:34] Speaker 02: So we have a record from which we have to say that the reasonable inference from everything that the court knew supports no error here. [00:21:44] Speaker 02: Why is that the right conclusion on this record in its totality? [00:21:47] Speaker 02: And I'm not persuaded by the fact that the defendant didn't jump up at the appropriate procedural moment. [00:21:54] Speaker 04: Your Honor, so we start with that initial verification. [00:22:06] Speaker 04: Now the question is whether the defendant's statement in the midst of his allocution was sufficient to alert the district court that this issue was present. [00:22:19] Speaker 04: I think earlier in your questions with appellants, you noted that there is kind of a linkage between the preservation question and the error question here. [00:22:30] Speaker 04: And part of that goes down to whether the district court can identify that. [00:22:36] Speaker 04: And I will address that here in a second. [00:22:39] Speaker 04: But first, just as far as the other things that the court can look to to draw this inference, we have two not [00:22:47] Speaker 04: Not one motion, but two motions. [00:22:51] Speaker 04: First, to extend the time to object to the initial PSR so that the defense counsel can consult with his client. [00:22:58] Speaker 04: And second motion to continue sentencing so that the defense counsel can consult with his client again after the issuance of the final PSR. [00:23:12] Speaker 04: And those are the kind of facts in the record [00:23:17] Speaker 04: that this court has said district courts can look to to draw the inference that it has satisfied its obligation to verify this. [00:23:27] Speaker 04: Now, when we get into a circumstance like this, where we have either the attorney lying or the defendant lying, that's where we get into a complicated situation that can't really be addressed in the sentencing. [00:23:45] Speaker 04: And as it is done there, [00:23:47] Speaker 04: has to be preserved for ineffective assistance of counsel claims in that context. [00:23:54] Speaker 03: Oh, I disagree. [00:23:55] Speaker 03: In the sentencing, the judge could have said, hold on. [00:24:01] Speaker 03: Mr. So-and-so, get up. [00:24:04] Speaker 03: Your client's just said that he didn't have an opportunity to read and discuss the PSR with you. [00:24:09] Speaker 03: What do you say about that? [00:24:12] Speaker 03: And he says, holy, Your Honor. [00:24:15] Speaker 03: I did, or he did, or whatever, and you have the discussion right there on the record. [00:24:19] Speaker 03: It can be resolved, presumably, in minutes. [00:24:23] Speaker 03: And the court can then say, well, you know, I've heard from Mr. Threatt, and I've heard from counsel, and Mr. Threatt, sorry, your objection is just not credible to me. [00:24:31] Speaker 03: I believe that counsel, based on all these things in the record, and what your counsel just said on the record today, that, in fact, you did have the opportunity. [00:24:40] Speaker 03: Objection overruled. [00:24:42] Speaker 03: I'm going to sentence you. [00:24:43] Speaker 03: Your Honor, I would have liked it if the district court had done that. [00:24:46] Speaker 03: To the statutory maximum. [00:24:48] Speaker 03: No, that's just the way it is. [00:24:50] Speaker 03: I mean, that's 101. [00:24:52] Speaker 03: That's the way it's contemplated. [00:24:54] Speaker 03: That's why people allocate. [00:24:58] Speaker 03: So you can decide right then. [00:24:59] Speaker 03: They allocate. [00:25:00] Speaker 03: So you can decide if the problem arises because of what the defendant says, you can deal with it right then. [00:25:05] Speaker 03: And that they don't have to sit in jail waiting on the ineffective assistance of counsel petition to percolate through. [00:25:13] Speaker 04: Your honor, I think part of this comes down to the manner in which Mr. Three raised this. [00:25:18] Speaker 04: He raised it kind of sandwiched between different complaints against his counsel. [00:25:25] Speaker 04: And this also is a complaint against counsel. [00:25:29] Speaker 04: And he didn't say that he wanted to stop this thing so he could find out what we're all talking about, because they've just been hashing out objections to the very same [00:25:42] Speaker 04: enhancement that he wishes to object now if he were to have a second go at it. [00:25:50] Speaker 04: But what we have here is he makes his claims against counsel and then he has this passing comment in a side where he says, oh, and P.S. [00:26:06] Speaker 04: My attorney never went over my PSI with me. [00:26:08] Speaker 04: And if he did, in which I would have withdrawn my plea, and if I could do that now, I'd like to. [00:26:14] Speaker 04: And so in that context, that's where we look much more like that Dunbar case that the government cited, which raised this question of pro se motions to withdraw pleas and challenges to counsel. [00:26:28] Speaker 02: It wasn't a pro se motion to withdraw a plea. [00:26:29] Speaker 02: He's represented. [00:26:30] Speaker 02: He's represented. [00:26:30] Speaker 02: He has his lawyer right there. [00:26:31] Speaker 02: He's allocuting. [00:26:33] Speaker 02: He's not making a pro se motion. [00:26:35] Speaker 02: And I just think that's a non-starter. [00:26:38] Speaker 02: But what you're saying, though, makes me think about perhaps why the government wants this circuit to adopt the preservation standard that the Sixth Circuit hasn't pulled. [00:26:48] Speaker 02: That's your advocating for that. [00:26:51] Speaker 02: We don't have a standard for procedural error under Rule 32, how to preserve that. [00:26:55] Speaker 02: We don't have a case that says how you do that. [00:26:58] Speaker 04: Yes, Your Honor. [00:26:58] Speaker 04: That's why we cited the whole case. [00:27:00] Speaker 04: The whole case. [00:27:01] Speaker 02: And just so that I understand, the difference there is, and what's missing here on this record, is you have to not just say, I didn't review it, but then ask for specifically what you want the district court, the true basis, what you want the district court to do. [00:27:18] Speaker 02: Is that correct? [00:27:19] Speaker 02: Yes, Your Honor. [00:27:19] Speaker 02: And why should we adopt that standard? [00:27:21] Speaker 02: That seems like a very highly technical standard, especially if [00:27:25] Speaker 02: the Rule 32 objection is coming from a defendant during elocution? [00:27:31] Speaker 04: Your Honor, that's the kind of objection that this court has required for Rule 32 challenges in the past regarding not just, so for example, in the objections to facts in a PSR, it's not enough to object to the facts [00:27:55] Speaker 04: If the judge then just makes a general finding, you have to object to the district court's failure to make the specific finding based on your objection. [00:28:09] Speaker 04: This court has adopted that. [00:28:14] Speaker 04: We haven't addressed it in this context, and if the court would like, I can provide a 28-J letter with a case that does that. [00:28:22] Speaker 04: It would be United States versus Williamson from 1995. [00:28:28] Speaker 04: But you mentioned earlier the Hoagland-Hernandez standard, and that is the argument for the appellant's making for preservation here, is that you need to bring it to the court's attention. [00:28:45] Speaker 04: But the Supreme Court there expressly rejected that it was [00:28:50] Speaker 04: establishing the standard for procedural error, for what was necessary to preserve a procedural error. [00:28:57] Speaker 04: And instead, that's rule 51B, advising the court of the action that you wish the court to take or objecting to its action in the basis for that objection. [00:29:08] Speaker 04: And that's the grounds for what we're talking about. [00:29:11] Speaker 04: As far as true procedural errors, give the district court a chance to actually know what it is that you're challenging right then and there and what you want the court to do. [00:29:21] Speaker 04: And then we can go for it and address it there in a more fulsome way. [00:29:25] Speaker 02: Well, Rule 51B doesn't really seem to help you because it has or in it. [00:29:29] Speaker 02: It has the word or in it, right? [00:29:31] Speaker 02: So go ahead. [00:29:33] Speaker 04: I think that does help us because it's really referring to two different contexts of what's going on. [00:29:38] Speaker 04: If the court is doing something, then you take that second prong after the or, or object to the court's actions and the basis for your objection. [00:29:50] Speaker 04: And if the court's not doing something, then you're on the first side. [00:29:54] Speaker 04: Sorry, I flipped those around. [00:29:55] Speaker 04: But you're on the first side of objections to the court's actions. [00:29:59] Speaker 04: And that's why there's the or there, is because it's addressing both district court actions that are being challenged and district court's failures to act that are being challenged. [00:30:09] Speaker 03: Okay. [00:30:09] Speaker 03: Thank you, Counselor. [00:30:09] Speaker 03: You're out of time. [00:30:10] Speaker 03: Judge Kelly, do you have any further questions? [00:30:14] Speaker 02: No. [00:30:14] Speaker 03: Thank you. [00:30:15] Speaker 03: Judge Rosman? [00:30:15] Speaker 02: I don't think so. [00:30:17] Speaker 03: And we have 10 seconds of rebuttal. [00:30:22] Speaker 01: Thank you, Your Honor. [00:30:22] Speaker 01: I just want to make the quick point that we can meet plain error review here. [00:30:28] Speaker 01: But if the court adopts the Holt standard, which the Sixth Circuit is the only circuit that I'm aware of that has such a stringent standard, it creates a pretty difficult burden for defendants. [00:30:42] Speaker 01: It's not the same as other Rule 32 errors where you're going to have a lawyer at the table with you who can object to nonspecific findings. [00:30:49] Speaker 01: It's a unique situation in which the defendant as the individual non-lawyer layperson is going to have to bring it to the court's attention. [00:30:57] Speaker 03: Thank you. [00:30:57] Speaker 03: Thank you, counsel. [00:30:57] Speaker 03: The case is submitted.