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Oh, yay, oh, yay, oh, yay.

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All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the court is now sitting.

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God save the United States and its Honorable Court.

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Case number 19-3090, United States of America versus Sylvan D. Abney Appellant.

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Ms.

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Shekatoff for the appellant, Mr. Carroll for the appellee.

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Hello, Ms.

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Shekatoff.

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This is Chief Judge Trini Watson.

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Please proceed and I'll say to all counsel,

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We regret that we can't see you in person, but I'm sure you'll understand the circumstances don't permit it, and we thank you all for participating in this fashion in the interest of the health and safety of you and all of us, and hopefully everybody, including your families, are staying safe and healthy.

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Good morning.

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Julia Sheketoff for Appellant Sylvan Abney.

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Federal Rule of Criminal Procedure 32.1 guarantees a criminal defendant in a revocation hearing an opportunity to make a statement and present any information and mitigation before he is sentenced.

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The district court denied Mr. Abney that opportunity when it refused to allow him to allocute before sentencing.

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That straightforward error requires re-sentencing.

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And because the district court would clearly have difficulty setting aside his prior judgment about the appropriate tenancy here, and in order to preserve the appearance of justice and fairness, this court should order reassignment to a different judge on remand.

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There are three issues that the court must decide in this appeal.

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First, did Mr. Addney preserve his allocution claim?

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Rule 51 states, in relevant part, that a party may preserve a claim of error by informing the court of the action the party wishes the court to take.

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That is what Mr. Abney did when he asked the district court, may I say something?

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As the government itself admitted and the Supreme Court reaffirmed in Holden Hernandez versus United States, Rule 51 means what it says, the allocation claim is preserved.

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The second question is, if Mr. Abney preserved his claim.

[00:02:22] Speaker 03:
Can I ask you a question about preservation before you go on to the second question, please?

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And the question is this, I understand that

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Mr. Abney asked to be able to speak, but as I'm thinking about it from the perspective of the way we usually administer the plain error rule, the purpose of having a plain error standard is so a grounds for objection is brought to the judge's attention so that the judge can correct it in real time.

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And I'm wondering, in this kind of situation, does the request, may I speak, put the judge on notice of the nature of the claim that's being made?

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And I appreciate your bringing to our attention the Supreme Court's decision in Hogan Hernandez, which, of course, is germane.

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But one thing I noted in that decision is the way the court described the preservation there

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is in terms of whether the claimed error was brought to the court's attention.

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And the court at one point said that in the way that the error was communicated there by telling the judge that the sentence was too long, the court said that the defense thereby, quote, has thereby informed the court of a legal error at issue.

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And here, I'm not sure that saying may I speak says

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here's the legal error at issue, or it apprises the trial court in a way that brings the claim to the court's attention.

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I believe it does.

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It's not simply here that Mr. Abney asked to speak.

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It's also the timing of when he asked to speak.

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He asked to speak before the court concluded sentencing.

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In fact, he asked to speak at the moment that the court was wrapping up his sentence, effectively communicating to the court that

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At this point, I haven't gotten to speak yet.

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I need that chance.

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I don't think there's anything more he needs to do.

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Beyond that, this isn't the kind of claim that is a convoluted issue or something that a district court wouldn't be aware of, such that a defendant really needs

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to explain in detail exactly what his objection is.

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I think the right of allocution is a bedrock right that every judge knows about.

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In fact, this judge himself offered Mr. Abney the right of allocution in his original sentencing and his re-sentencing and in the revocation, the first revocation proceeding in 2017.

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So he was aware of it.

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So I think- That might be a reason why, that might well be a reason why the error is plain because it should be obvious.

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But I'm not sure that the obviousness of the claimed right is the basis for avoiding the plain error standard altogether.

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It's usually something that kicks in after plain error applies.

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I agree with that.

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I just mean I think that Mr. Abney's that the objection itself or the issue is simple enough that Mr. Abney's simple request to speak did put the district court on notice of the nature of his objection in this case.

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The second question before the court is, if Mr. Abney indeed preserved his claim, is he entitled to resentencing?

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The government doesn't dispute that Rule 32.1 requires an opportunity to allocute before sentencing, or that the district court denied Mr. Abney that opportunity, and it doesn't dispute that the remedy for denial of allocution is generally resentencing.

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Its only argument on this point is that resentencing is unnecessary here because the district court responded to everything that Mr. Abney said.

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A review of the transcripts proves that.

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The district court... Excuse me.

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They also argue that the language of the two rules is different.

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My understanding is that the government points to the distinction and the language between the two rules only in the context of arguing that the error isn't plain.

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In other words, that the government is not arguing... But would you just focus on the difference for me?

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One of the

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The sentencing rule clearly says before opposing sentence in the other way.

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That's correct.

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Rule 32 is first extended the right of allocution to a criminal defendant in the sentencing.

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There was substantial case law and then an amendment to that rule that made clear that the district judge needed to invite the defendant to speak and that he needed to do that before issuing a sentence.

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Rule 32.1 was adopted to extend the right of allocation that had been well-recognized in the context of initial sentencing to the context of revocation proceeding.

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So at that time, it was quite clear, and the committee, in its notes, made clear that the purpose was to move that right, which attached before any sentence was imposed,

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in a revocation proceeding.

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So I don't think it was necessary to include the same amount of detail.

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Just to back up, the two rules, rule 32 and rule 32.1, are different in other ways.

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32 is much more detailed that applies to a regular sentencing.

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There are many more protections for a defendant in that context.

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And so it's not surprising that they're phrased a little bit differently.

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The government, again, doesn't contest that on de novo review or abusive discretion review that the linguistic differences actually make a difference here.

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And I think they don't.

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In addition, I think the purpose of the allocation rate is quite obvious.

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It's not something that the drafters of the rule needed, again, to clarify.

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The entire purpose of an allocation rate is to give the defendant a meaningful opportunity to address the court in respect to his sentence, to mitigate the sentence, or to prevent information and mitigation and potentially influence the sentence.

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That just doesn't make sense in the absence, or after,

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a sentence has already been imposed.

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Furthermore... Ms.

[00:08:42] Speaker 02:
Seketov, this is Judge Biller-Ricai.

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You argue in your brief, relying on various aspects of the proceedings, going back to prior sessions with the district judge and quote what you say shows that he would not have an open mind.

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But why should we consider proceedings prior to this resentencing session?

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I think there are two separate issues or two separate grounds that we're asking for reassignment on.

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The first is whether the judge would have difficulty putting out of his mind

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his already reached decision about what the sentence would be.

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And with respect to that, we're only relying on what happened in the proceeding below.

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The argument in our brief and what the argument is here is that the judge made clear that he wasn't able to put aside his already determined view of the sentence when he, after allowing a post-sentencing

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didn't reconsider the sentence and made clear that the sentence had already been imposed and he was just speaking with Mr. Abney to answer his question.

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With respect to the second thesis for requesting reassignment, that is about the appearance of fairness in the case.

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And I think in that, with respect to that, it's

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very fair to look at the entire course of the proceedings in this case and ask whether they raise a question about whether the judge is hostile to Mr. Abney.

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And I think that they do.

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I think that the judge's conduct towards Mr. Abney, particularly the change in his treatment of Mr. Abney between the original sentencing and when Mr. Abney won a resentencing on appeal,

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strongly suggest that there's at least a question about the fairness, the appearance of fairness in this case.

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So I guess I'm just wondering about the timeliness of raising those concerns.

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The district judge was disagreed with the government and with defense counsel on what the sentence should be in light of.

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the legislation and he made that clear on the record, but this is a separate proceeding and the judge expressed concerns about other things like compliance with supervised release terms and tenacity of Mr. Abney's ability to keep a job and his interactions with his probation officer.

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So I'm just not sure what appearance

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the earlier expressed disagreement about the sentence calculation creates with respect to the decision under review here?

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I would think it was simply about disagreement in respect to the sentencing calculation.

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I think the district court displayed significant hostility towards Mr. Adme that he did not have the original sentencing.

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So for example,

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You know, at the original sentencing, he told Mr. Abney that he was inclined to send him in between five and ten years.

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But later, he seemed to have completely changed course, forgotten that, and felt that the crime was extremely serious.

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such that he accused the prosecutor of making a joke by saying that he might seek a time served sentence after Mr. Abney had already served six years.

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He changed his position on whether Mr. Abney was entitled to an acceptance of responsibility adjustment in his guidelines consolation.

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And again, I don't think these go to simply a change in view or a disagreement between the parties and the court.

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I think they go to the question of whether the district court felt annoyed with Mr. Abney for reopening the case, for winning on appeal, for getting him reversed.

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I think the district court's treatment of Mr. Abney and of the prosecutor in the case in the status hearings following remand by this court

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and in the sentencing proceeding, shows a level of hostility that raises questions about the appearance of fairness in this case.

[00:13:19] Speaker 03:
Ms.

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Shekatoff, thank you.

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If my colleagues have no further questions at this time, I'll pause for a second just to make sure they don't.

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Oh, please.

[00:13:26] Speaker 04:
Oh.

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Can you hear me now?

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Yes.

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Okay, I'm sorry.

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I just have a question about the timing of all of this.

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What is the defendant's situation there?

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The district court sentenced him in November for six more months, so is he in prison now?

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He is.

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When is the six months up?

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I'm not exactly sure.

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I believe that he was arrested in October, so the six months is certainly, the end of that period is certainly coming up very quickly, but I don't know the precise date.

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Well, what are the consequences of this for

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for the court.

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In the normal course, we might not have an opinion completed and issued for a couple of months.

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By that time, he'll at least be in his... He got prison plus

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plus a month and a half, he'd probably be in the halfway house at that point, right?

[00:14:39] Speaker 00:
He likely would.

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In addition, he has an 18-month term of supervised release.

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And one of the things he would request or requested is no more supervised release because... Assuming that you succeed here and it goes back to the district court, either this district judge or another one, the issue will be,

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whether to continue the supervised release probably, right?

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Or maybe even the halfway house.

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Although he didn't object to the halfway house, right?

[00:15:14] Speaker 00:
He requested additional time in the halfway house instead of incarceration.

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I would need to consult with him about whether he objects to, on resentencing, he would decide whether he objected to the... Thank you.

[00:15:30] Speaker 04:
Thank you.

[00:15:31] Speaker 02:
Ms.

[00:15:32] Speaker 02:
Shekatoff, you said you had three issues.

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Did you get a chance to cover your third?

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I guess that was about the reassignment.

[00:15:38] Speaker 00:
Yeah.

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I covered that with you in response to your question, I think.

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Yes.

[00:15:45] Speaker 03:
Thank you.

[00:15:45] Speaker 03:
Good.

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Thank you, Ms.

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Shekatoff.

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We'll hear from Mr. Carroll now, and we'll hear from you on rebuttal.

[00:15:56] Speaker 03:
Thank you.

[00:15:56] Speaker 03:
May it please the court, my name is Ethan Carroll, and I represent the United States.

[00:16:01] Speaker 03:
The district court did not plainly err in sentencing Appellant because it gave him an opportunity to make a statement and present any information and mitigation, which is what Rule 32.1 requires.

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And Appellant does have to show plain error.

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His interruption of the district court after it had announced its intended sentence was insufficient to alert even his counsel

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of the nature of his objection, let alone put the district court on notice of his wish to allocute before it imposed sentence, which is what Rule 52 requires.

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Even if an appellant could establish a claim error, it isn't an error that affected his substantial rights or requires reversal because this court may not wonder about what he would have said.

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when afforded the opportunity to speak, which, again, has Rule 52.1 requires.

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Can I ask you a question at the outset, Mr. Carroll, which is... Of course.

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I didn't read anywhere in your brief that you disputed the notion that there was an error committed here.

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So we did not... What we put in the brief was that the court did not decide that question.

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The government does have an argument that no error was committed here, but we recognize that the... You didn't make that argument, right?

[00:17:15] Speaker 03:
uh... we merely we we proceeded directly to part two of plain air.

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That's correct John.

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Right, so we don't have an argument before us that an error was committed.

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So on the question of whether there's an error in waiting until the district court first announced the sentence to have the back and forth that you ultimately rely on or allowing for that back and forth beforehand

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you don't dispute that it was an error to wait until after the sentence was imposed to do that.

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So at least I didn't see anywhere in your brief where you dispute that.

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So there's a footnote where we rely upon, I believe it was Ingres Cruz, as well as the Second Circuit's resenancing rule in Margiati, which is what this court has followed, both in, I believe it's Ingres Cruz, and then I think it was also Harris,

[00:18:08] Speaker 03:
which was a case that occurred a couple of years later, this court has recognized that even if the district court doesn't first permit an appellant to speak and announces its intended sentence first, that that might not necessarily require reversal, because a district court can still listen to what the defendant has to say

[00:18:29] Speaker 03:
after announcing its intended sentence.

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So that was raised in a footnote.

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Just to be clear, that was, I think it was footnote 60 or brief.

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So we don't ordinarily have arguments put in footnotes, but you put that proposition in a footnote.

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And is the point of that footnote that there wasn't an error to begin with or that there was an error, but it's in some way harmless or non-prejudicial?

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Or what were you trying to say in that footnote?

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So it would be the latter, that even if it was an error, that it's one that was harmless.

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Right.

[00:19:04] Speaker 03:
So then, even in the footnote, you're not making an argument that there was an error.

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I mean, if it wasn't an error.

[00:19:09] Speaker 03:
I'm sorry.

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That's correct.

[00:19:12] Speaker 03:
OK.

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And the government does believe that an appellant has to show plain air in these circumstances because of the nature of his objection if it wasn't one that has complied with this court's requirement of sufficient particularity to put the district court on notice so that it can in real time address any issues that an appellant is trying to raise.

[00:19:35] Speaker 04:
What more should he have said?

[00:19:38] Speaker 03:
So he could have said,

[00:19:42] Speaker 04:
What more should he have said?

[00:19:46] Speaker 03:
So he could have said that he didn't, that can he have an opportunity to talk before the district court does, or actually turning to... How's that different from what he did say?

[00:19:56] Speaker 03:
So it didn't alert the district court or even his counsel to the nature of his objection and the basis for my saying that... Why do you say that?

[00:20:05] Speaker 02:
Why do you say that?

[00:20:06] Speaker 02:
Yeah, go ahead.

[00:20:07] Speaker 03:
Sure.

[00:20:08] Speaker 03:
So, if you turn to the trial transcript, looking at page 8, the very bottom of that, where Mr. Adme says, may I say something, and you look down, literally, I think it's six lines later, Ms.

[00:20:22] Speaker 03:
Petrus, Appellant's trial counsel, was confined with Appellant.

[00:20:26] Speaker 03:
They had an opportunity to make

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specific the nature of Mr. Abney's objection and there wasn't something that, sorry.

[00:20:36] Speaker 02:
Under the reasoning of Holger and Hernandez, that would be preserved already.

[00:20:45] Speaker 02:
The whole point is not to have to repeat and repeat something that's already in the record.

[00:20:52] Speaker 03:
And so Holden Hernandez doesn't appear to have modified this court's ruling, excuse me, in United States versus Piles, which is a 2017 case of the circuit, where even in Piles,

[00:21:08] Speaker 03:
where a defendant stated an argument and mitigation.

[00:21:13] Speaker 03:
We had to further object and let the district court know that the nature of this objection was that it had not given fair consideration to that argument.

[00:21:23] Speaker 03:
Holden, at least the government's reading of Holden Hernandez,

[00:21:26] Speaker 03:
isn't that any statement is one that's enough to alert a district court to the nature of one's objection.

[00:21:35] Speaker 03:
It was that in the context of the parsimony principle upon which that's embedded in the 3553 factors, that in that specific context that the nature of the defendant's

[00:21:53] Speaker 03:
request which put the court on notice to the basis in law and also the nature of the sentence that he was requesting, which necessarily would have been one that was no longer than necessary to address each of those factors.

[00:22:09] Speaker 03:
In that specific context, the nature of his objection was sufficient to put the court on notice of what he was requesting.

[00:22:18] Speaker 03:
And Holgren-Hernandez makes that clear when it does refer to the parsimony principle on page 5 of the civil opinion as being determinative of the outcome.

[00:22:30] Speaker 03:
on page four, where it says that the circumstances turn on what a judge would ordinarily understand that a defendant in that circumstance is making the argument.

[00:22:41] Speaker 03:
Here, the nature of what Mr. Abney requested wasn't enough to put either his counsel or the district court on notice of the fact that what he was raising wasn't just that he requested an opportunity to speak, which again, we think would be consistent, sorry, was there?

[00:23:00] Speaker 04:
question.

[00:23:03] Speaker 03:
Sorry, I thought you may have a question.

[00:23:05] Speaker 03:
But the opportunity to speak, which would have been consistent with Rule 32.1, but also the procedural nature of his objection, which is that he was requesting that opportunity to speak then, before the district court imposed sentence.

[00:23:22] Speaker 03:
So we do believe that this should be reviewed for plain error.

[00:23:27] Speaker 03:
And to turn to the heart of our argument,

[00:23:32] Speaker 03:
We do think that under prongs three and four of Alana that reversal is not required here.

[00:23:41] Speaker 03:
Can I add something on the point there?

[00:23:43] Speaker 03:
So you're not arguing that the... You're not arguing under prongs one and two.

[00:23:46] Speaker 03:
Your argument is exclusively about prejudice and integrity of the proceedings.

[00:23:52] Speaker 03:
No, we are arguing under prong two and have pointed out a number of differences between

[00:23:59] Speaker 03:
rules 32.1 and rule 32, and we think that those differences make a difference and any error would not have been a plain one under the text of the rule itself.

[00:24:15] Speaker 03:
So we are making an argument under prong two.

[00:24:19] Speaker 03:
I think it's fairly stated in our briefs, and that's why I was turning to prongs three and four.

[00:24:23] Speaker 03:
Just on prong two for a second, so what you think is non-obvious

[00:24:30] Speaker 03:
is not that you have to have given opportunity to allocute, right?

[00:24:35] Speaker 03:
Of course you have to give an opportunity to allocute.

[00:24:38] Speaker 03:
That's correct.

[00:24:40] Speaker 03:
And then, so what you think is non-obvious is that you think what was given here ultimately was an opportunity to allocute, but it was just done after the imposition of sentence?

[00:24:51] Speaker 03:
That's correct.

[00:24:52] Speaker 03:
I mean, it seems to me if you have to give an opportunity to allocute, it has to be one that's meaningful in that the judge actually takes into consideration the argument, the statement that's being made in the context of deciding what sentence to impose.

[00:25:11] Speaker 03:
And it just seems to me that you want some indication that that's what's going on.

[00:25:17] Speaker 03:
as opposed to I'm imposing sentence and then, oh, OK, if you want to say something, go ahead.

[00:25:25] Speaker 03:
But without any suggestion or reason to give the defendant an indication or anybody an indication that the statement that's being made, in fact, is being taken into account in determining what the sentence is, as would happen, for example, in some of the cases you cited in your footnote where the court

[00:25:44] Speaker 03:
The other courts of appeals have suggested that in that kind of situation, the district court should affirmatively indicate that it's reopening the sentence thing in light of an error like this.

[00:25:57] Speaker 03:
And then the district court is telling everybody, including the defendant and the defendant's counsel, OK, now I'm going to rethink the sentence.

[00:26:07] Speaker 03:
Let's start back at ground zero, and I'll hear your statement.

[00:26:11] Speaker 03:
And then I'll render sentence anew.

[00:26:14] Speaker 03:
So, three points.

[00:26:16] Speaker 03:
One, it does, so on page 15 of the trial transcript, the court did engage with Mr. Ebony's counsel's request about the halfway house, asked whether he was actually requesting a longer amount of time in the halfway house, and then responded as to why the court did not believe the placement in the halfway house was appropriate.

[00:26:39] Speaker 03:
respond.

[00:26:41] Speaker 03:
Point two, it was actually appellant's counsel, not the court that ultimately stopped the appellant from speaking.

[00:26:48] Speaker 03:
So the court was continuing to listen to each of the points that Mr. Abney was making.

[00:26:54] Speaker 03:
And then in point three... Where are you looking for that, Mr. Carroll, in the transcript that said it was appellant's counsel?

[00:27:05] Speaker 03:
Yes, page 14.

[00:27:07] Speaker 03:
of the trial transcripts where Ms.

[00:27:10] Speaker 03:
Petras said, let me try, after Mr. Abney had been engaging in a, well, had been speaking to the district court for what looks like some time.

[00:27:23] Speaker 03:
So it was Ms.

[00:27:24] Speaker 03:
Petras that ultimately stopped Mr. Abney from speaking.

[00:27:27] Speaker 03:
And then the next page, the court engaged with Ms.

[00:27:30] Speaker 03:
Petras' request for additional time in a halfway house.

[00:27:38] Speaker 02:
And that's after the court had said, you can talk to your counsel, you can talk to your counsel about that, you know, to make a request.

[00:27:48] Speaker 02:
So I think part of the dynamic there is that the court has decided and is really in the, I mean, one of the ways of reading this transcript is the court is sort of in the nature of, do you have questions about what I've already done as opposed to,

[00:28:04] Speaker 02:
speak to me so I can frame a sentence in light of what you have to say.

[00:28:08] Speaker 02:
And in that regard, you know, after the judge has directed Mr. Abney to speak to his counsel and there's some question about what the defendant's concern is, then Ms.

[00:28:22] Speaker 02:
Petros jumps in.

[00:28:25] Speaker 03:
And I guess what I'm trying to point out is just that even after that back and forth that the court was engaging with Ms.

[00:28:33] Speaker 03:
Petrus about the specific nature of the request on page 15, which indicates that it was still open to hearing from the appellant's position.

[00:28:43] Speaker 03:
And I do think it's also worth pointing out that as

[00:28:46] Speaker 03:
no point in the proceedings below on appeal has appellant requested anything other than halfway house plates, halfway house placement.

[00:28:54] Speaker 03:
Um, the record shows that why the court rejected, uh, that request, which was made both by appellant, uh, and appellant council, um, before and after, uh, the court imposed sentence.

[00:29:08] Speaker 03:
And so, um, that like, and that brings this case, uh, within the kind of cases under prongs three and four,

[00:29:14] Speaker 03:
where this court does not have to wonder about what would have happened and the appearances of fairness because a talent was given an opportunity to speak.

[00:29:24] Speaker 03:
I'm looking to the fifth, seventh, eighth, and tenth circuits, each of which under either prong three or prong four,

[00:29:32] Speaker 03:
uh, takes a look at whether the allocution was considered, whether, uh, a defendant had anything, anything further, uh, to say, um, and, uh, even on appeal, what he proffers he would have requested that was different.

[00:29:47] Speaker 03:
And here's the only thing that an appellant has ever requested is placement in, uh, a halfway house.

[00:29:54] Speaker 03:
Um, and I've cited those cases, the ones that are closest, actually, are leg,

[00:29:58] Speaker 03:
from the Fifth Circuit, a 2011 opinion, DeBerry from the Seventh Circuit, a 2010 opinion, Thurmond from the Eighth Circuit, a 2019 opinion, and Bencia Hernandez from the Tenth Circuit, which is a 2014 opinion.

[00:30:14] Speaker 03:
This court had a

[00:30:16] Speaker 03:
test of presumed prejudice under Crong 3.

[00:30:20] Speaker 03:
It would have said so in Anderson, which is a 2011 case, which considered an allegation error in an original sentencing.

[00:30:29] Speaker 03:
And even in that context, which is much more formal, as even appellant admits by looking at the differences in the two contexts, even in that context what this court looked to was whether the actual

[00:30:44] Speaker 03:
course of the proceedings and whether the perspective was communicated.

[00:30:50] Speaker 03:
Sorry, was there a question?

[00:30:51] Speaker 03:
Mr. Carroll, thank you.

[00:30:54] Speaker 03:
I'll ask my colleagues if they have any further questions.

[00:30:56] Speaker 03:
If not, we can hear from Ms.

[00:31:00] Speaker 03:
Shekatoff on rebuttal.

[00:31:02] Speaker 02:
Which was the 2011 case that you were referring to?

[00:31:04] Speaker 02:
Was that Anderson?

[00:31:07] Speaker 03:
Yes, Your Honor, it's Anderson, which is a 2011 case on this court.

[00:31:16] Speaker 03:
Okay, thank you, Mr. Carroll.

[00:31:19] Speaker 03:
Thank you.

[00:31:22] Speaker 03:
Ms.

[00:31:22] Speaker 03:
Shekatoff, we'll hear from you in your rebuttal.

[00:31:28] Speaker 00:
Thank you.

[00:31:29] Speaker 00:
I just wanted to make a few quick points.

[00:31:32] Speaker 00:
First, Mr. Carroll argues that the judge explained why he wasn't placing Mr. Avney in a halfway house.

[00:31:40] Speaker 00:
I don't think that that's entirely accurate.

[00:31:43] Speaker 00:
In fact,

[00:31:44] Speaker 00:
what the court responded to is Ms.

[00:31:47] Speaker 00:
Petras discussed why Mr. Abney wanted to be placed in a halfway house and then said, I understand the court wants to punish him.

[00:31:54] Speaker 00:
And the court said, I'm sure, Ms.

[00:31:56] Speaker 00:
Petras, you have a very clear recollection as to why, of how successful he was operating in the halfway house when he was in one.

[00:32:05] Speaker 00:
In other words, I would read that to understand that he wants to punish him for failing to be successful in the halfway house as opposed to explaining why

[00:32:13] Speaker 00:
why halfway house placement as opposed to incarceration or as opposed to simply just keeping him on supervised release as he had been for almost two years was inappropriate.

[00:32:23] Speaker 00:
And so Mr. Carroll mentioned that the district court listened to Mr. Abbey and didn't cut him off.

[00:32:31] Speaker 00:
That's not sufficient to, you know, cure any violation here, even assuming that that's the relevant test.

[00:32:39] Speaker 00:
You have to actually respond to what the defendant says.

[00:32:44] Speaker 00:
You have to wipe the slate clean or reconsider the sentence.

[00:32:48] Speaker 00:
If you impose the same sentence, explain why you're adhering to that sentence based on what the defendant actually said.

[00:32:55] Speaker 00:
Here, the district court didn't even repeat the sentence at the end of the proceeding.

[00:33:00] Speaker 00:
It was clear that when he announced the sentence before allocution, that was the sentence.

[00:33:05] Speaker 00:
That was the final sentence, and he did not revisit it.

[00:33:08] Speaker 00:
I also wanted to turn just briefly to whether plain error should apply as Judge Pillard and Judge Cheadle mentioned.

[00:33:16] Speaker 00:
I think it doesn't because Mr. Abney did everything he could or everything that would reasonably be expected to put the district court on notice.

[00:33:24] Speaker 00:
The government doesn't identify anything more that he could have said to make his objection known except that he could have said, I want to allocute now.

[00:33:32] Speaker 00:
I want to allocute before a decision is reached.

[00:33:34] Speaker 00:
The timing of when he made that request, I think, communicated that to a higher margin.

[00:33:40] Speaker 03:
Can I ask you a question about that?

[00:33:41] Speaker 03:
Which is, suppose what he said was, and I'm obviously reading into this much greater degree of information than a criminal defendant normally would have, but just bear with me on the hypothetical, just for illustration purposes, which is, suppose someone says,

[00:33:57] Speaker 03:
I don't think I have any entitlement to speak.

[00:33:59] Speaker 03:
I'm not aware that I do.

[00:34:02] Speaker 03:
But it'd be great if you'd let me talk for a second.

[00:34:07] Speaker 03:
And then suppose I actually take it out further and just say, because I'd just like to express my sorrow to the victims of the crime.

[00:34:18] Speaker 03:
Say something like that.

[00:34:20] Speaker 03:
And at that point, the district court doesn't have any reason to think that

[00:34:26] Speaker 03:
not letting the person speak is an error.

[00:34:29] Speaker 03:
It does have indication that the person would like to speak, but doesn't have any indication that not doing so is an error or is being claimed as an error.

[00:34:40] Speaker 03:
And so, it's not a claimed error in the language of the Supreme Court in Holman Hernandez.

[00:34:46] Speaker 00:
Well, the language of Rule 51B says specifically a party may preserve a claim of error by informing the court of the action the party wishes the court to take.

[00:34:55] Speaker 00:
It doesn't say that the part, and then it specifies for the party's objection to the court

[00:35:06] Speaker 00:
to specify the legal right that guarantees him that action.

[00:35:11] Speaker 00:
In fact, in Holden Hernandez itself, the party did not have to say, you know, under 3553A, I am entitled to a... Oh, no, you definitely don't need to cite the staff sheet or the rule or anything like that.

[00:35:22] Speaker 03:
I don't disagree with you on that.

[00:35:25] Speaker 03:
I think the question is whether you're giving the court reason to think that not doing it might be an error.

[00:35:31] Speaker 03:
And in Holden Hernandez,

[00:35:32] Speaker 03:
Everybody knew it was claimed to be an error because the issue was whether the sentence was too long, and the defense was making the argument that the sentence is too long for the following reasons.

[00:35:43] Speaker 03:
And at that point, the court knows, well, someone's telling me that if I don't grant a lower sentence, that this would be wrong.

[00:35:53] Speaker 03:
But in our case, I don't know that the judge has put on notice that not granting the request to speak would be wrong.

[00:36:04] Speaker 03:
or would be considered by the defense to be wrong?

[00:36:07] Speaker 00:
It's true that Mr. Abney didn't say, may I speak because not letting me speak would be wrong, but I think by making the request of the district court, he's informing the district court that that is what he believes he's entitled to and that that is what, I'm sorry.

[00:36:22] Speaker 02:
I didn't mean to interrupt you.

[00:36:23] Speaker 02:
Go ahead.

[00:36:24] Speaker 02:
And that is what, the error that you made.

[00:36:27] Speaker 00:
If the district court denies, he may complain about it.

[00:36:30] Speaker 00:
So I want to read just a quote from Hoblan Hernandez.

[00:36:32] Speaker 00:
It says, by informing the court of the action he wishes the court to take, a party ordinarily brings the court to attention to his objection to a contrary decision.

[00:36:41] Speaker 00:
I don't see why this should fall outside of that ordinary rule.

[00:36:45] Speaker 00:
Ordinarily, stating what you want is enough.

[00:36:48] Speaker 00:
And here, I think there's no reason why it wouldn't be enough to ask more of a civil defendant.

[00:36:54] Speaker 02:
It's a little complicated here because

[00:36:57] Speaker 02:
In fact, what he wanted was not post-sensing allocution, but pre-sensing allocution.

[00:37:03] Speaker 02:
And it was only when the Chief Judge had actually imposed the sentence that he realized, whoa, the train has left.

[00:37:10] Speaker 02:
Even assuming that this was an effort to ask for an opportunity to allocute, he's asking for it after the fact.

[00:37:19] Speaker 02:
I'm not sure that makes a difference, but in terms of what the Chief Judge is asking about, you know,

[00:37:27] Speaker 02:
it seems less like a request to allocute per sentence when it's come up after the fact.

[00:37:34] Speaker 00:
I disagree with the factual premise.

[00:37:37] Speaker 00:
The objection was not made after a sentence was already imposed.

[00:37:40] Speaker 00:
The court had begun to impose sentence, but he specifically said after Mr. Abney interjected that he was not done with his sentence.

[00:37:46] Speaker 00:
And in fact, after Mr. Abney objected, he imposed an additional condition of supervised release, which was cognitive behavioral therapy, and then explained that Mr. Abney needed to report

[00:37:55] Speaker 00:
to probation within 72 hours.

[00:37:58] Speaker 00:
So these are additional requirements on Mr. Abney that were imposed post or after his request to allocute.

[00:38:05] Speaker 00:
But even setting that aside, understanding that a defendant would have difficulty interrupting a district court in the middle of a sentence,

[00:38:16] Speaker 00:
Mr. Abney didn't really have an opportunity to object before the district court began to impose sentence.

[00:38:26] Speaker 00:
He didn't know that he wasn't going to be afforded the opportunity to address the court before sentencing.

[00:38:31] Speaker 00:
Only once the court began to impose sentence was he aware that no, this opportunity was not going to be extended to him and that he needed to act in order to obtain it.

[00:38:42] Speaker 00:
I just wanted to say, again, that I think asking more of a criminal defendant would be putting a substantial burden on him.

[00:38:50] Speaker 00:
I think this is quite analogous to Holden Hernandez in that the defendant asked for a lower sentence here.

[00:38:58] Speaker 00:
The defendant asked to speak.

[00:38:59] Speaker 00:
That puts the district court on notice of what the defendant wants.

[00:39:02] Speaker 00:
And the defendant does not need to identify the legal basis that entitles him.

[00:39:09] Speaker 00:
And then lastly, if I may, I just wanted to address Kyle's the case the government brought up, which I think simply speaks to the contemporaneousness requirement.

[00:39:20] Speaker 00:
But a defendant can't simply make a general request at the very beginning of a sentencing proceeding and expect that about considering various arguments and expect that to put the district court on notice that he may have made an error by failing to adequately address something an hour later in the sentencing proceeding.

[00:39:38] Speaker 00:
Rather, that case discusses or directs the defendant to, you know, make a timely claim, to make a timely objection.

[00:39:48] Speaker 00:
But here, Mr. Abney did exactly that.

[00:39:50] Speaker 00:
And in Piles and Mack and the other cases, the government states, there's no suggestion that the defendant would need to say, you know, I quote, unquote, object rather than, no, I request that you consider this argument at the time if the district court fails to do so.

[00:40:04] Speaker 00:
And that's what Mr. Abney did here.

[00:40:07] Speaker 03:
Okay, thank you, Ms.

[00:40:08] Speaker 03:
Shekhodoff.

[00:40:09] Speaker 03:
If my colleagues have enough further questions, we will thank both you and Mr. Carroll for your arguments this morning, and the case is submitted.

[00:40:20] Speaker 01:
Thank you.