United States v. Plotts

¶5OPINION OF THE COURT

¶6AMBRO, Circuit Judge.

¶7Richard Plotts appeals the District Court’s decision revoking supervised release and imposing a sentence of imprisonment. Because Plotts was denied the right of allocution at sentencing, we reverse and remand to the District Court for resentencing.1

¶8I. Factual and Procedural Background

¶9In July 1995, Plotts was arrested in Delaware on the suspicion of bank robbery. Shortly thereafter, a grand jury returned an indictment against Plotts, charging him with bank robbery in violation of 18 U.S.C. § 2113(a). He pled guilty to a single count and received a sentence of 80 months imprisonment followed by three years supervised release. In February 2002 (after serving his sentence and while on supervised release), responsibility for his supervision was transferred to the Probation Office for the Eastern District of Pennsylvania.

¶10Plotts was arrested in November 2002 by the Pennsylvania State Police for violating 18 Pa. Cons.Stat. § 6105 (felon in possession of a firearm). Shortly thereafter, the Probation Office filed a petition to revoke Plotts’s supervised release, alleging six violations of his release conditions. The District Court conducted a revocation hearing in December 2002. The Government presented the testimony of six witnesses. Plotts presented no evidence. After considering the evidence and arguments of counsel, the District Court found that Plotts had: (1) been in possession of a firearm; (2) engaged in credit card fraud;2 (3) used drugs, including opiates, on repeated occasions; and (4) lied to his probation officer.3 Following these findings, the District Court revoked Plotts’s supervised release and sentenced him to 30 months imprisonment followed by 30 months supervised release. Prior to sentencing, Plotts was not given an opportunity to address the Court, known as allocution. He appeals, alleging that (1) he was denied the right of allocution at his release revocation hearing before sentence was imposed, and (2) the District Court improperly treated a charged Grade C violation as a Grade A violation for sentencing purposes (thus increasing his sentence).4

¶11II. Standard of Review

¶12As Plotts failed to preserve his objections at the revocation hearing, we *249review the decision of the District Court for plain error. United States v. Adams, 252 F.3d 276, 279 (3d Cir.2001); see also Fed.R.Crim.P. 52(b). Under plain error review, we may grant relief if (1) the District Court committed an “error,” (2) it was “plain,” and (3) it affected “substantial rights” of the defendant. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “A deviation from a legal rule is [an] ‘error.’ ” United States v. Russell, 134 F.3d 171, 180 (3d Cir.1998) (citation omitted). It is “plain” when “ ‘clear’ or ‘obvious.’ ” Id.(citation omitted). In order for an error to affect “substantial rights,” it must have been “prejudicial”; in other words, “it must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. If these requirements are satisfied, we should exercise our discretion to grant relief if the error “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” Id. at 736, 113 S.Ct. 1770 (citation omitted); see also Adams, 252 F.3d at 284-85.

¶13III. Analysis

¶14We conclude that a criminal defendant’s right of allocution extends to release revocation hearings. Because the District Court committed plain error in denying Plotts’s right, we remand this case for resentencing.5

¶15The rule in our Circuit is that denying the right of allocution (at least in sentencing hearings) will generally result in resentencing under plain error review. Adams, 252 F.3d at 289. Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure states a court must, before imposing sentence, “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” In Adams, we concluded the District Court in that case committed an “error” that was “plain” by failing to address the defendant personally prior to sentencing. 252 F.3d at 286. With regard to the “affects substantial rights” portion of the plain error analysis, we interpreted Olano as requiring “the defendant to make a specific showing of prejudice, unless he can show that the error should be presumed prejudicial, or that the error belongs in a special category of errors that should be corrected regardless of prejudice (ie., the category of structural errors).” Id. at 285-86. Prejudice should be presumed, however, when a defendant shows the violation of a right could “have played a role in the district *250court’s sentencing decision.” Id. at 287. We also stated that violation of the right of allocution could play a role in a court’s sentencing decision whenever there exists any disputed facts in connection with sentencing or any defense arguments that might reduce the applicable guideline range or ultimate sentence. Id.All of this is based on the belief that a defendant is often his most persuasive and eloquent advocate. Id. at 288.

¶16While not constitutional, the right of al-locution is “ancient in origin, and it is the type of important safeguard that helps assure the fairness, and hence, legitimacy, of the sentencing process.” Id.Accordingly, we concluded in Adams that denial of allo-cution at the defendant’s sentencing hearing was plain error and warranted resen-tencing. Id. at 288-89.

¶17We have not ruled whether a defendant’s right of allocution extends to a revocation hearing. The Federal Rules of Criminal Procedure fail to define explicitly the scope of allocution rights. Almost every circuit court to consider the issue, however, has ruled that allocution must be permitted before imposition of sentence at a supervised release (or parole) revocation hearing. See United States v. Reyna, No. 01-41164, 358 F.3d 344, 2004 WL 113479, 2004 U.S.App. LEXIS 1134 (5th Cir. Jan. 26, 2004) (en banc);6United States v. Waters, 158 F.3d 933, 944-45 (6th Cir.1998); United States v. Patterson, 128 F.3d 1259, 1260-61 (8th Cir.1997); United States v. Rodriguez, 23 F.3d 919, 921 (5th Cir.1994); United States v. Carper, 24 F.3d 1157, 1160-62 (9th Cir.1994); United States v. Barnes, 948 F.2d 325, 329-30 (7th Cir.1991).7 In light of our previously expressed views in Adams on the importance of allocution, and in reliance on the well-reasoned opinions in other circuits, we too conclude that a defendant’s right of allocution extends to revocation hearings.

¶18For similar reasons, we conclude that the District Court’s error in this case was “plain.” An error may be clear or obvious absent controlling Supreme Court *251or Third Circuit precedent. United States v. Evans, 155 F.3d 245, 251-52 (3d Cir. 1998). In such a case, decisions from other circuit courts are instructive. See United States v. Barbosa, 271 F.3d 438, 456 (3d Cir.2001) (relying on previous decisions of two circuit courts in finding plain error). In Plotts’s case, the weight of appellate authority discussed above is sufficient to render the District Court’s error clear and obvious.

¶19Based upon Adams, we also conclude that prejudice to “substantial rights” may be presumed in this case because allocution could have played a role in the Court’s sentencing decision. 252 F.3d at 287. First, there exists no statutory minimum term of imprisonment upon revocation of supervised release. See 18 U.S.C. § 3583(e)(3) (permitting imprisonment for “all or part” of the term of defendant’s supervised release); see also 18 U.S.C. § 3583(h). Second, even though Plotts’s 30-month added prison term was the lowest sentence within the recommended Guidelines Manual range of 30 to 37 months, the Court had discretion to impose an even lower sentence, as the revocation provisions in the Guidelines are advisory policy statements and not binding. See United States v. Schwegel, 126 F.3d 551, 554-55 (3d Cir.1997).

¶20Finally, denial of the right of allocution “is not the sort of ‘isolated’ or ‘abstract’ error that we might determine does not impact the ‘fairness, integrity or public reputation of judicial proceedings.’ ” Adams, 252 F.3d at 288 (citation omitted). As such, this is an appropriate case in which to grant relief.

¶21******

¶22We reverse and remand to the District Court for resentencing.