Okay Miss Gennett. Good morning and may it please the court. My name is Sarah Gennett and I represent the appellate Robert Paladino in this matter. I respectfully request three minutes for a battle. Thank you. The district court aired in two ways in sentencing Mr. Paladino on his violation of supervised release. First, it failed to address him personally to offer him the opportunity to speak or present information in mitigation of the sentence in violation of rule 32.1. And second, it applied an overbroad and vague condition of supervised release that has the effect of precluding Mr. Paladino from possessing or accessing writings of political, legal and social import. With the court's permission, I'd like to begin with the allocation issue
. The government has conceded the failure to permit allocation. It has also conceded that the failure affects the fairness, integrity and reputation of judicial proceedings. And thus, the only issue for this court is whether that failure prejudice Mr. Paladino. What's the prejudice? The prejudice is that under this court's precedent, because the district court retained discretion over his sentence, the prejudice is presumed because the allocation might have affected the district court's sentencing decision. It's a little different because this is not the usual sentencing proceeding. This is a supervisory release revocation. But this court is correct. So why is there an absolute right, highly hushed in that circumstances? There is. And this court held in plots that the same presumption that applies in a regular sentencing hearing as the court found in Adams applies in a supervised release sentencing hearing. And so the standard is exactly the same
. That applies even though no matter what the defendant says, does that really change the sentence one bit? Well, so we don't know whether what the defendant says is going to change the sentence one bit. And that's why the presumption applies. So the right. So tell me about your position on this point. In arguing, prejudice is one of the points that the government, given the opportunity to ask you is, well, we agreed on what the sentence is. He got what we'd agreed on. What's the problem? So there was an agreement in this case. And I would make two points about that. The first is that the agreement did not cover all aspects of the sentence. So this court has held that the supervised release term is an aspect of the sentence. And the conditions of supervised release are an aspect of the sentence just as much as the term of incarceration is an aspect of the sentence
. And the agreement between the parties certainly covered the term of imprisonment. It arguably covered the supervised release term, although the record is a little more murky about that. But it did not cover the conditions of supervised release. And we raised that in our briefing. The government does not address that point. So there was at least one aspect of the sentence that was not agreed to. But the second point is that the right to allocation is an old right that derives from the common law. And it's now codified. But it's a right that recognizes the unique eloquence as the court wrote, the Supreme Court wrote in green in this court echoed in Adams of the defendant. And the fact that the defendant has something to offer in sentencing that's special. And something that may impact the judge in a special way that cannot be determined
. And that's why we presume prejudice. If there's any discretion at all that's retained by the judge over any aspect of the sentence that's not the case here. I would think that's right. And that's very well said. But that sounds like it would be when a judge has discretion so that the defendant statement can affect that discretion one way or the other. But that wasn't the case here, was it? Well, here there's discretion in several ways. There was discretion over the term of imprisonment, which is less relevant now to the court's decision with Mr. Baggis second, there was an absolute agreement for eight months in custody. There was an agreement for eight months in custody, but that agreement is not binding on the district court. An agreement between the parties is never binding on the district court. All right
. So despite the agreement, the defendant could have said, made a few comments and the judge could have said, nice agreement, folks, but I'm not going to abide by it. I'm going to make it six months. Absolutely. And courts do that. I'm sure this court doesn't see that very frequently because the defendant's not likely to appeal that decision, but that does happen in district court practice. And that's in part of the reason that we don't, that we presume prejudice in this type of circumstances, we can't know what the defendant might have said that might have been proposed. The response may not be six months, but folks, I'm going to abide by your agreement and so you can take it back if you like, but not proceed to sentencing. Well, so that is what happens if there's a see-play, but there are two types of pleas. There's a B plea and there's a see-play. And in the see-play, the condition is, and the defendant should be advised of this under either rule 11 or under due process in the supervised release context. It's a due process consideration more than a rule 11 consideration
. And that's under this court's decision in Manuel and Supreme Court authority in Morrissey and in other cases involving revocation hearings. But the defendant should be advised if it's a see-play that those are the consequences exactly as you've said, Judge Frontess. But in a B plea, it's simply that the judge considers what the parties have said and then the judge can decide what the judge is going to do with regard to the sentence. So let's assume a B plea for a moment where the judge retains the discretion. And let's assume the sentence is five to a, the possibility is five months to 11 months. And let's assume also for the moment that there are no conditions of supervised release that will be at issue. Right? And the agreements five months and the judge gives five months, but no right to allocate. Do we have to remand under those circumstances? We do. And plots is directly on point in that regard. And the ruling by this court in plots was that because in a supervised release context, there is no, the guidelines are completely advisory and that there's no minimum requirement. That even if a low end guideline is given, there's still discretion on the part of the district court
. And in fact, I believe in plots that it was a low end sentence that was given in that case. And this court remanded it. I think this court's non-presidential decision in Carney in which Judge Frontess and Judge McGart both participated is instructive here. And in that case, the court decided that even though the defendant had a very terrible record and that the sentence was unlikely to change on remand, that because the right to allocate was violated, that the presumption had to apply since there was some discretion and that remand was necessary, even though the court acknowledged in the opinion the sentence was unlikely to change. If I could turn to the supervised release issue, unless the court has further questions on allocation, the condition of the supervised release. Of course, it's an important issue here in this case. Other than when a defendant gets up and speaks, and even though there's an agreement for a specific term, the defendant addresses the court and addresses the court generally in the hopes of getting a lighter sentence. Is there another rationale for this absolute right of allocation, other than trying to convince the court to give me a lighter sentence? The rationale is that the defendant will offer information to the court. It's generally information and mitigation, that is the rationale. Is it a right of rule or is it a right to do process? It's a right of rule, but it's a right of rule that derives from such longstanding tradition that this court has recognized that it has a deeper value and a deeper importance than regular rules. That's why this court found in plots quoting Adams, that it's not the sort of isolated or abstract error that we can determine doesn't affect fairness, integrity, or the public reputation of judicial proceedings
. That's why we find that the fourth prong of plain error is met in these cases, and we just look at the prejudice prong. That's why we find prejudice to be presumed rather than doing this speculative, fact intensive inquiry in each case. We just look to whether the sentencing judge had any discretion at all. The judge here, Ms. Gannon, did address the defendant, didn't he? The judge addressed the defendant only to ask, is that your understanding of the agreement and the defendant answered yes? So the defendant spoke literally one word at this hearing. You think it's not a defendant's responsibility or defense counsel to say I have something else I'd like to say, or may I address the court, but rather the judge has to say, would you like to address the court, is that the way? It is not. In fact, this court's cases are consistent in that point. In fact, there are even cases in which the court has announced at the beginning that it would hear from the defense and then forgot to hear from the defendant. Even in that case, the court said that the error was the courts and that remand would be required for allocation. Turning to you, the supervised release conditions. The condition here requires the court to consider whether there was a reason to limit Mr
. Paladino's access to all writings describing child pornography, regardless of their political, legal or social import. This court does not appear to have considered the writings aspect of this condition, although it's considered a number of similar conditions. But the court's prior case suggests that the plain error standard should still be met here because as this court said in Volker, after lawy, the needs to balance the first amendment concerns should have been apparent. Here, the issue is, was there anything in the record to suggest that Mr. Paladino needed to be limited from having access to all writings? And second, how do we tell from the condition what writings he's prohibited from accessing and what writings he's not prohibited from accessing? The condition is so vague and overbroad that remand is required to either provide more rationale on the part of the district court for why such a broad condition is necessary or to tailor it more appropriately to meet the needs in this case. Is this a condition that he had previously agreed to? There was a modification of his conditions of release that was tender to him while he was in prison. And he signed a written waiver of his right to counsel and his right to a hearing on that modification of conditions of release. And it's our position that the uncounciled, uncolored prison waiver of his right to a hearing on that modification is not knowing an intelligent modification was this particular modification was the same condition that was then reimposed following the revocation. And it's the government's position that that modification should act as essentially the equivalent as a waiver of his right to appeal the reimposition of that condition as a result of the revocation sentence in this case. How would you tailor the, you mentioned to send it back for possible tailoring. How would you tailor? Well, I think there are several ways that the court could consider tailoring it that might be effective
. Of course, that any kind of tailoring would also have to come with findings by the district court about why the condition is appropriate in the first place. But it could be tailored to exclude writings. It could be tailored to exclude writings that have a serious literary, artistic, political or scientific value. It could be tailored to cover only writings that are lured designed to appeal to a perian interest or have a purpose of sexual enticement. It could be tailored to exclude writings that are being used for legal treatment, employment, or research purposes. Some of those kinds of exclusions have been accepted by other courts, such as the Ninth Circuit in Co-op. You're your biggest problem with the word writings. The problem is with the word writings, that's correct. The problem is not with the images. We can see that the preventing him from accessing images is appropriate. Okay, Ms. Gattie, thank you. We're going to get you back on the model and hear the other side. May it please the court. The library. Good morning, Your Honor. My name is Michael Ivory. I'm an Assistant United States Attorney from Pittsburgh. I'd like to address the issue of the modification first, if that's amenable to the court. First, Mr. Paladino has been, this condition has been in existence since 2007. It was part of the original Judgment and Commitment Order entered by Judge Lancaster
. Gattie, thank you. We're going to get you back on the model and hear the other side. May it please the court. The library. Good morning, Your Honor. My name is Michael Ivory. I'm an Assistant United States Attorney from Pittsburgh. I'd like to address the issue of the modification first, if that's amenable to the court. First, Mr. Paladino has been, this condition has been in existence since 2007. It was part of the original Judgment and Commitment Order entered by Judge Lancaster. In 2012, it was modified. It was modified to include the language that defendant shall not possess or access with intent to view. That was the modification and there was also a modification to a reference to child pornography as defined in the Child of Senity Statute. So that's the modification we're talking about here. All it has done is really add with access, the phrase, access with intent to view. And that's to reflect the fact that the Child of Pornography Statute had changed after Mr. Paladino had been convicted. There are at least six reasons why this condition was imposed and those appear clearly in the record. First of all, we have to look at the nature of the offense in this case. When Mr. Paladino received child pornography in 2007, he was obtaining child pornography in two different ways
. In 2012, it was modified. It was modified to include the language that defendant shall not possess or access with intent to view. That was the modification and there was also a modification to a reference to child pornography as defined in the Child of Senity Statute. So that's the modification we're talking about here. All it has done is really add with access, the phrase, access with intent to view. And that's to reflect the fact that the Child of Pornography Statute had changed after Mr. Paladino had been convicted. There are at least six reasons why this condition was imposed and those appear clearly in the record. First of all, we have to look at the nature of the offense in this case. When Mr. Paladino received child pornography in 2007, he was obtaining child pornography in two different ways. First, he was physically receiving it from a commercial mailbox facility. And secondly, when we searched his computer and found the 5,000 or so images, he was also obtaining it via the computer. So he was obtaining child pornography in two different ways. Your adversary is focused on the word writing. Yes, Your Honor. And what is your problem with sending it back and requiring us to have the district court take a look with regard to the breadth of writings? Well, first of all, we're in a plain error posture here since Mr. Paladino had never objected to the implementation. Well, some for a moment that plain error is met. I know you're telling me that. Yes, you don't think it can be played error, but I guess. I don't think it is necessary because I don't think that the concerns of overbreath exists because of the statutory definitions that are included within the condition itself
. First, he was physically receiving it from a commercial mailbox facility. And secondly, when we searched his computer and found the 5,000 or so images, he was also obtaining it via the computer. So he was obtaining child pornography in two different ways. Your adversary is focused on the word writing. Yes, Your Honor. And what is your problem with sending it back and requiring us to have the district court take a look with regard to the breadth of writings? Well, first of all, we're in a plain error posture here since Mr. Paladino had never objected to the implementation. Well, some for a moment that plain error is met. I know you're telling me that. Yes, you don't think it can be played error, but I guess. I don't think it is necessary because I don't think that the concerns of overbreath exists because of the statutory definitions that are included within the condition itself. It provides guidance to Mr. Paladino as to what he can read and look at, what he cannot read, and what he cannot look at. He says he can be violated for having a copy of the New York Times or the Sunday Times, which is a lot fatter. That describes pornography. I think writing, describing pornography. That's that if you take a hyper-technical copish view or approach to this as the Ninth Circuit in United States versus Cop, you have that problem. Is that phrase hyper copish? Hyper copish. I have a way of inventing words sometimes. But again, as I indicated in my brief, this court should follow United States versus Mike, the Tenth Circuit decision, which address an identical, if not more restrictive condition. Because in Mike, the defendant was prohibited from possessing, looking at sexually explicit material. And here Mr
. It provides guidance to Mr. Paladino as to what he can read and look at, what he cannot read, and what he cannot look at. He says he can be violated for having a copy of the New York Times or the Sunday Times, which is a lot fatter. That describes pornography. I think writing, describing pornography. That's that if you take a hyper-technical copish view or approach to this as the Ninth Circuit in United States versus Cop, you have that problem. Is that phrase hyper copish? Hyper copish. I have a way of inventing words sometimes. But again, as I indicated in my brief, this court should follow United States versus Mike, the Tenth Circuit decision, which address an identical, if not more restrictive condition. Because in Mike, the defendant was prohibited from possessing, looking at sexually explicit material. And here Mr. Paladino is restricted from child pornography. There's a big difference between sexually explicit material because that encompasses adult pornography, which is protected by the First Amendment. Here we're dealing with child pornography, which is not protected by the First Amendment. So I think- So there's a lead article on the cover of the Times Magazine on children being exploited overseas because of child pornography. Well, again, if we employ a common sense approach as this court did in United States versus Loy, Loy too, where the court can strewed a condition, and Loy that defendant was ordered not to associate with children because he was a child pornography. Well, he said what happens if I have my own children or what happens if there's an incidental contact, say I get on the bus and their children on the bus. I'm technically in violation of this condition that supervise release. And this court can strew that condition to say it doesn't apply to your own children. And if there's an accidental or an incidental association with children, that's not what the district court meant in this case. I don't think that the district court in ratifying the condition to which Mr. Paladino consented was prohibiting him from looking at Time Magazine or reviewing the Sunday Times, even if they contain articles pertaining to child pornography
. Paladino is restricted from child pornography. There's a big difference between sexually explicit material because that encompasses adult pornography, which is protected by the First Amendment. Here we're dealing with child pornography, which is not protected by the First Amendment. So I think- So there's a lead article on the cover of the Times Magazine on children being exploited overseas because of child pornography. Well, again, if we employ a common sense approach as this court did in United States versus Loy, Loy too, where the court can strewed a condition, and Loy that defendant was ordered not to associate with children because he was a child pornography. Well, he said what happens if I have my own children or what happens if there's an incidental contact, say I get on the bus and their children on the bus. I'm technically in violation of this condition that supervise release. And this court can strew that condition to say it doesn't apply to your own children. And if there's an accidental or an incidental association with children, that's not what the district court meant in this case. I don't think that the district court in ratifying the condition to which Mr. Paladino consented was prohibiting him from looking at Time Magazine or reviewing the Sunday Times, even if they contain articles pertaining to child pornography. So I think- So what is it preventing me from- I- I- I- not- He can read magazines, newspapers, Internet articles that part of the content could be on child pornography as long as he doesn't read it, he's not in violation of the condition. is prohibiting him from going out and actively looking for material writings involving child pornography in situations Defined by the child pornography status. I'm not sure but I would guess that your adversary would jump up and say Your honors. Let's adopt that modification. I can live with that But that's not what what was the paladena sign up for right? Right, right and Mr. Paladino really didn't sign on for anything because he didn't object and I would note in Loy that offended that object and that this court did not hesitate to apply a common sense approach and construing the scope of the condition that was challenged by Mr. Paladino and Also additionally in law, too this court indicated that individuals Who are involved in child pornography that there can be bands Consistent a bands against their first amendment rights to test this material so long as they There's sufficient guidance and in example in this case we do have guidance in that Any discretion that the probation officer would have is informed and necessarily by the definition of child pornography that set forth in the condition as well as in the federal But really too Yes, it is a real problem here though When it comes to child pornography is having depictions having images on a computer and looking at those pictures Isn't that the real problem and that's the problem that the Sentencing guidelines are trying to address As opposed to a writing about Well, child pornography I I don't have a good answer for that and the reason why is I don't know how Well, you know writing you don't prosecute people because they have a writing about child pornography You prosecute them because they have images on the computer where they have pictures are low It's crazy. You can't prosecute people under federal obscenity statutes for Writing about child pornography. It's been in tap and in the Western District of Pennsylvania We also had the extreme associates case that this court decided several years ago and by the same token Would you violate with a probation officer violate and and the US attorney Assist in prosecuting someone who has a writing about child pornography. It's happened. Yes, Your Honor What why is that what how does that contribute to the rehabilitative ideal? prosecuting individuals for distributing of seem material no writing about Child pornography
. So I think- So what is it preventing me from- I- I- I- not- He can read magazines, newspapers, Internet articles that part of the content could be on child pornography as long as he doesn't read it, he's not in violation of the condition. is prohibiting him from going out and actively looking for material writings involving child pornography in situations Defined by the child pornography status. I'm not sure but I would guess that your adversary would jump up and say Your honors. Let's adopt that modification. I can live with that But that's not what what was the paladena sign up for right? Right, right and Mr. Paladino really didn't sign on for anything because he didn't object and I would note in Loy that offended that object and that this court did not hesitate to apply a common sense approach and construing the scope of the condition that was challenged by Mr. Paladino and Also additionally in law, too this court indicated that individuals Who are involved in child pornography that there can be bands Consistent a bands against their first amendment rights to test this material so long as they There's sufficient guidance and in example in this case we do have guidance in that Any discretion that the probation officer would have is informed and necessarily by the definition of child pornography that set forth in the condition as well as in the federal But really too Yes, it is a real problem here though When it comes to child pornography is having depictions having images on a computer and looking at those pictures Isn't that the real problem and that's the problem that the Sentencing guidelines are trying to address As opposed to a writing about Well, child pornography I I don't have a good answer for that and the reason why is I don't know how Well, you know writing you don't prosecute people because they have a writing about child pornography You prosecute them because they have images on the computer where they have pictures are low It's crazy. You can't prosecute people under federal obscenity statutes for Writing about child pornography. It's been in tap and in the Western District of Pennsylvania We also had the extreme associates case that this court decided several years ago and by the same token Would you violate with a probation officer violate and and the US attorney Assist in prosecuting someone who has a writing about child pornography. It's happened. Yes, Your Honor What why is that what how does that contribute to the rehabilitative ideal? prosecuting individuals for distributing of seem material no writing about Child pornography. Oh, I'm sorry. The case I referred to it was a distribution of obscene material not a session. I got that If we're dealing with the situation where it's part of a court ordered treatment I don't think that that's a problem because it's part of a court ordered treatment If Mr. Paladino is going out and looking for fictional writings graphically describing the sexual abuse of children and those who comport with the definition set forth in the child pornography statute He should not be permitted to have something like that and that would constitute in my estimation of violation of the conditions of supervised release So it been you were mentioning the law to before now in law to if I'm looking at this correctly judge backers Rule that a condition of supervised release prohibiting the defendant from possessing all forms of pornography including legal adult pornography was unconstitutionally vague so I'm sorry What did you think the import of that was as it relates to this well? The other concern in boy and Judge Becker said that there that that it was First of all, we dealt with child was dealing with the adult pornography in boy, but I believe it Well, he was he was found guilty of Receiving and possessing child pornography. That's correct, but the van included adult pornography, but I understand right But I believe that there was a reference our portion of the law decision that says There might be a different outcome in this case for the situation may be different if the van was If the condition had a statutory reference such as to the child pornography statute so that the defendant would know Not know we would know what he could or could not look at so that's that's where I was talking about how Lloyd to actually helps me in this case well, you're right except Isn't the point here that the condition as Written as described isn't as specific as you are relating to us right now maybe If the description were as narrow as you've was as narrow as you've just described yes, but that's the point right It's much broader than that It necessarily has to be broad because terms of supervised release cannot cover every conceivable situation that could occur I mean, you know Mr. Paladino in his brief says well, you know this would prohibit me from looking at a scholarly work dealing with child pornography and I point out on my brief well Jesus would also apply to Family photo albums where there are photographs of young children being based by their parents So there has to be Necessarily you he just can't draft these things these conditions to account for every permutation that could possibly happen Can I can I yeah? I want to get you over to the alley Cushion because your time is running. I'm sorry about that Not at all the The attorneys put the agreement on the record eight months going in jail and the courts has mr. Paladino is that you're understanding? That's correct. He says yes, and that's That's the end here's to be the end of it that that's correct He did not personally address to the defendant as he was required to he didn't have to Um, and let me tell you let me explain why I made that proposition first of all when jester come came out on the bench He already knew about the existence of the agreement He said I understand that the parties have reached and understanding as to what the new sentencing would be if jester Cone was not amenable to that condition He would have rejected it as he has before in cases what what wait a minute What if he heard something from Paladino that persuaded him otherwise but Judd sir Cone and we're talking judge sir come was aware that that is the purpose of allocation That is the purpose of allocation. I'm not sure if it's all that effective But it certainly is the purpose of allocation Well, you don't want it to be effective, but you know, we don't go by percentage is that true? No, we do not you win 95% of your cases no kudos to you Um, I'm not gonna answer that question But When we're talking about the discretion in this case and that's the one point the mr. Paladino emphasizes He says I could have said Anything I could have been as grand eloquent as possible jester cone could have been so moved Not only would he have not imposed the sentence of imprisonment, but jeez He would have removed that condition of the modification
. Oh, I'm sorry. The case I referred to it was a distribution of obscene material not a session. I got that If we're dealing with the situation where it's part of a court ordered treatment I don't think that that's a problem because it's part of a court ordered treatment If Mr. Paladino is going out and looking for fictional writings graphically describing the sexual abuse of children and those who comport with the definition set forth in the child pornography statute He should not be permitted to have something like that and that would constitute in my estimation of violation of the conditions of supervised release So it been you were mentioning the law to before now in law to if I'm looking at this correctly judge backers Rule that a condition of supervised release prohibiting the defendant from possessing all forms of pornography including legal adult pornography was unconstitutionally vague so I'm sorry What did you think the import of that was as it relates to this well? The other concern in boy and Judge Becker said that there that that it was First of all, we dealt with child was dealing with the adult pornography in boy, but I believe it Well, he was he was found guilty of Receiving and possessing child pornography. That's correct, but the van included adult pornography, but I understand right But I believe that there was a reference our portion of the law decision that says There might be a different outcome in this case for the situation may be different if the van was If the condition had a statutory reference such as to the child pornography statute so that the defendant would know Not know we would know what he could or could not look at so that's that's where I was talking about how Lloyd to actually helps me in this case well, you're right except Isn't the point here that the condition as Written as described isn't as specific as you are relating to us right now maybe If the description were as narrow as you've was as narrow as you've just described yes, but that's the point right It's much broader than that It necessarily has to be broad because terms of supervised release cannot cover every conceivable situation that could occur I mean, you know Mr. Paladino in his brief says well, you know this would prohibit me from looking at a scholarly work dealing with child pornography and I point out on my brief well Jesus would also apply to Family photo albums where there are photographs of young children being based by their parents So there has to be Necessarily you he just can't draft these things these conditions to account for every permutation that could possibly happen Can I can I yeah? I want to get you over to the alley Cushion because your time is running. I'm sorry about that Not at all the The attorneys put the agreement on the record eight months going in jail and the courts has mr. Paladino is that you're understanding? That's correct. He says yes, and that's That's the end here's to be the end of it that that's correct He did not personally address to the defendant as he was required to he didn't have to Um, and let me tell you let me explain why I made that proposition first of all when jester come came out on the bench He already knew about the existence of the agreement He said I understand that the parties have reached and understanding as to what the new sentencing would be if jester Cone was not amenable to that condition He would have rejected it as he has before in cases what what wait a minute What if he heard something from Paladino that persuaded him otherwise but Judd sir Cone and we're talking judge sir come was aware that that is the purpose of allocation That is the purpose of allocation. I'm not sure if it's all that effective But it certainly is the purpose of allocation Well, you don't want it to be effective, but you know, we don't go by percentage is that true? No, we do not you win 95% of your cases no kudos to you Um, I'm not gonna answer that question But When we're talking about the discretion in this case and that's the one point the mr. Paladino emphasizes He says I could have said Anything I could have been as grand eloquent as possible jester cone could have been so moved Not only would he have not imposed the sentence of imprisonment, but jeez He would have removed that condition of the modification. I agree to a couple of months before Um When jester Cone took the bench not only did he know about the agreement, but afterwards he said since I am going to be imposing a term of imprisonment in this case He said since I'm Might he did not say since I might be imposing a term of imprisonment in this case He said since I'm going to be imposing a term of imprisonment in this case You got to really stop there, right? I mean I was a district judge for a while. I know that and You know you come into a sentencing hearing with x in your mind, right? Mm-hmm And You know I nor any of my colleagues can say that we've never been persuaded by allocation You you seem as though you want us to adopt a test that's back back specific If the judge knew what he was going to do no right to allocution or if the judge was really really really sure about what he was going to do No right of allocution There's there's every indication on this record The judge sricone Was amenable to the agreement and was going to honor the party's joint sentencing agreement. That's what he did in this case Uh Again, there's no indication that he was opposed to this that uh, you know, it's not a situation in a chance to oppose I'm a bigger person given a chance to oppose Isn't that the purpose of addressing the court not only opposed, but I don't you know I'd like to talk to the judge out of eight months back in jail and well maybe make a statement that would persuade him that Four months would be might read more reasonable Well, first of all, Mr. Pellettine will have been in violation of the agreement that he made in that case If he was asking for a lower sentence, I mean he agreed to eight months He didn't have to ask for it. Look if he had been given the the opportunity to address the court Despite whatever negatives he might have with regard to his eloquence or his ability to persuade It's it's a possibility because the district judge had discretion now your your adversary says well, you know, even if he didn't have discretion It would be important. Well if he did there were no contest that says sentencing issues in this case Um, I mean we're dealing with prejudice here. He can't show prejudice under the second prong of the Adams test There was no opportunity For there was no Not under the terms of the agreement and the district court is the district court bound to the agreement between you and Mr. Pellettine Well the district court was aware of the agreement by the time he took the bench. It's a profession It's it's it's my probation. It's a green-to-way probation. I I impose the sentence Do I not have a right to modify the terms of the sentence irrespective of an agreement? If you agree if if we look at the sender the ages of 11 c1
. I agree to a couple of months before Um When jester Cone took the bench not only did he know about the agreement, but afterwards he said since I am going to be imposing a term of imprisonment in this case He said since I'm Might he did not say since I might be imposing a term of imprisonment in this case He said since I'm going to be imposing a term of imprisonment in this case You got to really stop there, right? I mean I was a district judge for a while. I know that and You know you come into a sentencing hearing with x in your mind, right? Mm-hmm And You know I nor any of my colleagues can say that we've never been persuaded by allocation You you seem as though you want us to adopt a test that's back back specific If the judge knew what he was going to do no right to allocution or if the judge was really really really sure about what he was going to do No right of allocution There's there's every indication on this record The judge sricone Was amenable to the agreement and was going to honor the party's joint sentencing agreement. That's what he did in this case Uh Again, there's no indication that he was opposed to this that uh, you know, it's not a situation in a chance to oppose I'm a bigger person given a chance to oppose Isn't that the purpose of addressing the court not only opposed, but I don't you know I'd like to talk to the judge out of eight months back in jail and well maybe make a statement that would persuade him that Four months would be might read more reasonable Well, first of all, Mr. Pellettine will have been in violation of the agreement that he made in that case If he was asking for a lower sentence, I mean he agreed to eight months He didn't have to ask for it. Look if he had been given the the opportunity to address the court Despite whatever negatives he might have with regard to his eloquence or his ability to persuade It's it's a possibility because the district judge had discretion now your your adversary says well, you know, even if he didn't have discretion It would be important. Well if he did there were no contest that says sentencing issues in this case Um, I mean we're dealing with prejudice here. He can't show prejudice under the second prong of the Adams test There was no opportunity For there was no Not under the terms of the agreement and the district court is the district court bound to the agreement between you and Mr. Pellettine Well the district court was aware of the agreement by the time he took the bench. It's a profession It's it's it's my probation. It's a green-to-way probation. I I impose the sentence Do I not have a right to modify the terms of the sentence irrespective of an agreement? If you agree if if we look at the sender the ages of 11 c1.1. No, you don't And under Bernard if you do deviate from an and accept it guilty plea that constitutes a breach of the of the the plea agreement But you from the plea or from the well I'm talking about the agreement Bernard was an 11 c1 11 c1.c where the district court did not well accepting The plea agreement did not honor the conditions and this court said that that constitute a breach by the court But you do agree the court is free to reject the agreement based on allocution The court is free to reject the agreement without allocution well Allocution occurs after a guilty plea so if the district court is all right about this this supervisory agreement. Okay. Okay The court does not have to accept the agreement It does not have to accept the agreement, but in this case I could have rejected the agreement on the basis of comments made by the defendant Never got to that point your honor. Okay. Thank you I Miss Gannon um, I'd like to ask you a question about current status of mr. Paladino. Yes what what happens if we uh If we were to return this case for failure to Allow outocution He's already served the sentence. He has served a sentence, but he's still serving his term of supervised release So that could be a ju- so that's all or you would get that that's all you would get out of this well But it's significant he's serving a ten-year term of supervised release with substantial conditions on it And so he's right to allocate with respect to the term of supervised release and the conditions as a significant component of his sentence Okay, at least we narrow the uh The if there is a remand the basis it does narrow it does narrow the issues and I but I would point out um on that issue one final point Which is that the right of allocation is not conditioned on anything. It's not conditioned on whether there's an agreement in the case It's not conditioned on whether the defendant is contesting anything about the sentence or anything about the violation Do you think there was a more fundamental basis than a rule basis for allocation? It's a it's it's not a it's not a it's not a constitutional right, but it does it does derive from long standing tradition It does derive from the common law and it does derive from important recognition of the defendant's role in the in the proceeding But I I can't I can't say that it survives from anything anything greater than that This court however has recognized it's it's tremendous importance to the proceeding and that's why it's It's given in atoms and plots such primary importance and it's given the presumption and it's given that In the Plain error analysis
. It's given that centrality to the integrity of the judicial process In prong for the analysis On the supervised release condition issue I would make three points the first is on the question of writings and whether it's appropriate to be limiting mr. Paladino's access to writings The district court never gave any reason why that was important I would refer the court to two cases in which the that Point is made crystal clear and those are the cases Thealman and Volcker which are cited in our in our briefing and in thealman and Volcker the court addressed That how in thealman there were reasons given on the record for why limiting the defendant's access to legal adult materials was necessary and in Volcker showed how the court had not made such findings Here there are no such finding in thealman we have held a condition Prehibiting a defendant from viewing writings describing pranard right so that can be done if there are reasons Apparent on the record there are no such reasons in this case making this case more comparable to Volcker Where the court found that such a condition was not appropriate because there were no reasons given on the record So if the judge says something like this is important for your rehabilitation Well, therefore right or if the if the judge says writings were central to your offense as in thealman Where the court said adult pornography was a part of Interacting with adults was a part of your offense. So we're going to limit your access to materials that relate to adults I would also refer the court to the portion of the opinion in law where the court said We don't interpret things into decisions. We don't Have probation officers ruling on a case-by-case basis about what things are appropriate what things are not appropriate Whatever courts do in other jurisdictions Whatever the Mike court says about common-sense rulings. We don't do that here except in one very limited Corner of this jurisprudence and that's in the associational context because there's such a long history of the first amendment jurisprudence in that area the court felt comfortable doing that But generally otherwise we don't assume that anybody's going to read a condition in any way other than the way that condition reads Based on its plain language and so we would ask the court Respectfully to find plain error as the court did in bulk or and remand for the district court to write a more clear More narrowly tailored and more justified in the record condition in this case Thank you And mr. Ivory. Thank you very much. Thank you both for our well-presented arguments. We'll take the case and the advisemen