United States v. Vergil Vladimir George , 872 F.3d 1197 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14812
________________________
D.C. Docket No. 1:15-cr-20821-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERGIL VLADIMIR GEORGE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 6, 2017)
Before HULL, JORDAN, and GILMAN, * Circuit Judges.
HULL, Circuit Judge:
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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Defendant Vergil George appeals his total 259-month sentence, imposed
after a jury convicted him of multiple crimes stemming from his drug-dealing and
identity-theft activities. After careful review of the briefs and the record, and with
the benefit of oral argument, we conclude the district court did not clearly err in
applying the firearm enhancement under U.S.S.G. § 2D1.1(b)(1) and the premises
enhancement under § 2D1.1(b)(12). However, the district court plainly erred in
not allowing George to allocute before pronouncing sentence. Thus, we vacate and
remand for resentencing.
I. FACTUAL BACKGROUND
The following facts were established at George’s trial.
Defendant George met Chris Pinkow when George responded to an
advertisement for luxury car rentals. Pinkow owned an exotic-car rental company
and was also, unbeknownst to George, an informant for the Federal Bureau of
Investigation (“FBI”). 1 George agreed to rent a Porsche Panamera from Pinkow
for $9,000 per month.
Pinkow often met with George at George’s apartment to collect the rental
payment. Pinkow also accompanied George “[m]any times” as George drove
around picking up large sums of money from various homes and people on street
1
Pinkow had previously pled guilty to unrelated charges and was working for the FBI in
the hopes of ending his probation early.
2
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corners, and George would then give the money to Pinkow as payment for the car
rental.
Pinkow introduced George to Cesar Ernesto Velez, a licensed barber, when
George was planning to open a barbershop salon. Velez helped George hire
barbers and manage and promote the salon, in exchange for having a rent-free
booth at the salon. The salon opened in early September 2015, but by the time
George was arrested, Velez was the only barber still working at the salon because
the other two had quit.
Velez explained that the salon was divided into two separate rooms. The
front room contained the barber shop. The back room, however, contained
“computers . . . and certain machines . . . different things that were suspicious.”
Velez told the jury that he saw laptops, phones, embossing machines, and card-
scanning machines in the back room, items that had “nothing to do with the barber
business” operating in the front room of the salon. Velez testified that he once saw
a duffel bag “pretty much filled with like gift cards, credit cards, debit cards.”
Velez also saw scales and heat sealers in the salon, and George once showed him a
firearm that he kept under the desk at the front of the salon. George once offered
to sell Velez cocaine for $32,000 per kilogram.
According to Velez, George’s “friends” were also frequently in the back
room of the salon, and Velez saw George giving these men “direction[s].” Velez
3
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said, “all the other guys were pretty much listening to what he said. He was – they
couldn’t operate without him.”
Pinkow also rented luxury cars to Vincent Banner, a “very successful” drug
dealer specializing in marijuana and variations of marijuana. 2 In June 2015,
Banner accompanied Pinkow to George’s apartment. Banner brought one or two
duffle bags filled with marijuana with him and, once inside George’s apartment,
Banner sold the marijuana to George. Pinkow testified that Banner sold George
four pounds of marijuana for $10,000 total, but Banner testified that he sold
George only two pounds of marijuana for $2,500 apiece. While in George’s
apartment, Pinkow saw two other men, packaging equipment, scales, heat sealing
machines, and firearms. Banner, however, testified to seeing only “scales and the
money” and one other person in George’s apartment. 3
2
At the time of his trial testimony, Banner was serving a prison sentence for drug and
firearms-related convictions. Banner stated that the government had promised him nothing in
exchange for his testimony, but he hoped that “it could benefit me as much as possible.” Banner
admitted that Pinkow had been a confidential informant in his case too and helped “put [him]
away.”
3
At some point, Banner asked George to help him steal money and drugs from one of
Banner’s competitors, Jordan Campo, a high school student. Banner showed George where
Campo lived. George later told Banner that he “tried” to rob Campo, but Campo closed the door
and would not open it when George knocked.
Campo testified that in September 2015, around 11 or 12 at night, he heard knocking on
his front door. Campo tried to look out the peephole, but the person outside had covered it up.
The person outside kept knocking loudly and demanding that Campo open the door, leading
Campo to think the person was there to hurt him. When Campo did not open the door, the
person ran away. Campo did not see the person’s face, but after Campo was arrested several
weeks later, George approached him in prison and said he knew who Campo was and where
Campo lived. This led Campo to believe that George was the person who tried to get into his
apartment in September 2015.
4
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In August 2015, George asked Banner if he could purchase more
marijuana—specifically, he wanted to buy three pounds of marijuana, an amount
that Banner explained far exceeded the amount necessary for personal use.
Pinkow testified that he visited George’s salon on occasion. Pinkow told the
jury that he saw a firearm behind the reception area of the salon, and he saw
handguns in the back room. Pinkow explained that there was a “kitchen type area”
in the back room, and Pinkow saw heat sealing machines, packaging equipment,
bags of marijuana, and loose marijuana “sprinkled all over the table” in that back
area. George told Pinkow that he made money at the salon “through the sale of
marijuana, cocaine, things like that.”
In early August 2015, while Pinkow was at George’s salon, George offered
to sell Pinkow six kilograms of cocaine for $30,000 per kilogram. Pinkow told
George that he “had a couple people that [he] could check with” about purchasing
the cocaine. Pinkow and George continued to discuss the cocaine sale afterwards,
with Pinkow placing two phone calls to George on August 15, 2015, both of which
were recorded and played for the jury at trial. In the first recording, George told
Pinkow that he had six “birds” (slang for kilograms) for sale and to tell “him,”
meaning the prospective buyer that the price was “30,” meaning $30,000. In the
second recording, George asked Pinkow if “he,” again meaning the prospective
buyer, would take all six kilograms, and Pinkow replied that he was “pretty sure”
5
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the buyer would. George then told Pinkow that he would “bring them back by
tomorrow,” which Pinkow took to mean that George would have to leave town,
pick up the drugs, and come back.
On October 7, 2015, Pinkow visited the salon again. He had a recorder from
the FBI, and the recording from that day was played for the jury. On the recording,
George told Pinkow that he “got rid” of the six kilograms of cocaine, which
Pinkow understood to mean that George had sold it himself. Pinkow told George
he needed a “hammer,” meaning a gun, and George agreed to get him one for
$200.
On cross-examination, Pinkow admitted that, while he saw George selling
marijuana in his apartment and at the salon, he never saw the six kilograms of
cocaine.
On October 8, 2015, the FBI executed a search warrant at George’s salon.
FBI Agent Adriene Sullivan participated in the search and testified that agents
found heat sealers, scales, marijuana, a drug kit, and cocaine residue in the front of
the salon. Agents also found a firearm behind the reception desk, which was right
by the front door. In the separate, back section of the salon, agents found: (1) a
box of ammunition for a different firearm; (2) a credit card embosser; (3) a
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computer4; (4) devices used to read credit cards (“skimmers”); (5) stacks of
prepaid gift cards; (6) numerous cell phones; (7) numerous credit cards; (8) a
thumb drive; and (9) a Western Union card. On cross-examination, Sullivan
admitted that the firearm was not found on George’s person, that the firearm was
not submitted for fingerprint or DNA testing, and that the search did not turn up
any felony quantities of drugs.
FBI Agent Allen Klimesh interviewed George after his arrest, and the
recorded interview was played for the jury. George admitted during that interview
that the firearm found in the salon belonged to him. George said he needed the gun
because people stole things from the salon.
II. PROCEDURAL BACKGROUND
A. Indictment and Trial
In a superseding indictment, a federal grand jury charged George with:
(1) conspiracy to possess with intent to distribute five kilograms or more of
cocaine and a detectable amount of marijuana, in violation of 21 U.S.C. § 846
(Count 1); (2) possession of a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); (3) conspiracy to commit Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 3); (4) being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 4);
4
According to an FBI forensic analysis, the computer contained credit reports, tax filings,
and documents containing personal information for numerous individuals who were not George.
7
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(5) possession of 15 or more unauthorized access devices, in violation of 18 U.S.C.
§§ 1029(a)(3), 2 (Count 5); and (6) two counts of aggravated identity theft, in
violation of 18 U.S.C. §§ 1028A(a)(1), 2 (Counts 6 and 7).
George proceeded to trial. After a four-day, trial, the jury found George
guilty on Counts 1, 3, 4, 5, 6, and 7, and not guilty on Count 2.
B. The PSR
George’s presentence report (“PSR”) assigned him a base offense level of 30
and added, among others, the following increases: (1) a two-level increase pursuant
to U.S.S.G. § 2D1.1(b)(1) because George possessed “dangerous weapons (several
firearms),” and (2) a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12)
because George “maintained several premises (apartments and a hair salon) for the
purpose of manufacturing or distributing a controlled substance.” With a total
offense level of 36 and a criminal history category of III, George’s advisory
guidelines range was 235 to 293 months’ imprisonment for Counts 1, 3, 4, and 5. 5
As to Counts 6 and 7 (the aggravated identity theft convictions), each count carried
a consecutive term of two years’ imprisonment, but it was within the district
court’s discretion to impose the terms for Counts 6 and 7 concurrently or
consecutively to each other.
5
The statutory minimum term of imprisonment on Count 1 was ten years and the statutory
maximum term of imprisonment was life. The other maximum terms were 20 years as to Count
3 and 10 years as to Counts 4 and 5.
8
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George filed objections to the PSR, arguing that the increase under
§ 2D1.1(b)(1) for possessing a weapon was improper because the government had
not proven any nexus between the firearm and the drug trafficking crimes, and
because he had in fact been acquitted of possessing a firearm in furtherance of a
drug-trafficking crime. George also objected to the increase under § 2D1.1(b)(12)
for maintaining a drug premises because the PSR relied only on uncorroborated
testimony on this point, and there was no other evidence that he maintained the
salon or the apartment primarily for illicit activity. George also requested a
downward variance.
The government responded that: (1) there was ample evidence presented at
trial to establish that George kept guns and drugs at his apartment and at the salon,
and that acts in furtherance of drug crimes took place at both locations; (2) the
back room of the salon was primarily used for illegal activity, including drug
distribution; (3) George operated “trap houses” (houses used to store and sell
drugs) based on Pinkow’s testimony that he and George drove to various houses to
pick up money; and (4) evidence that Banner purchased marijuana from George at
George’s apartment, and that firearms and drug equipment were present, strongly
suggested that the apartment’s primary or principle use was for drugs.
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C. The Sentencing Hearing
At sentencing, George argued that, in light of the jury’s acquittal on Count 2
(possession of a firearm in furtherance of drug-trafficking crimes), the government
was “trying to do indirectly” at sentencing “what it couldn’t do directly” at trial by
seeking the firearm enhancement under U.S.S.G. § 2D1.1(b)(1). George also
contended that: (1) the FBI did not find any large volumes of drugs at the salon;
(2) the recorded conversation between himself and Pinkow at the salon made no
particular mention of cocaine; (3) Banner’s testimony contradicted Pinkow’s
testimony that firearms were present in the apartment; and (4) the government
could not prove by a preponderance of the evidence that any acts in furtherance of
a drug conspiracy took place at the salon or that there was any connection between
the gun and drug activities.
The government responded that the increase should be applied unless it was
“clearly improbable” that the gun was connected with the offense and that the
evidence supported the enhancement. The district court found that, under the
preponderance-of-the-evidence standard, there was sufficient evidence to support
the § 2D1.1(b)(1) firearms increase. After hearing argument from both sides, the
district court also allowed the premises enhancement based on the evidence that
law enforcement found during the raid on the salon.
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As to George’s request for a downward variance, the district court stated that
George was a “con man” whose extravagant lifestyle was supported by his illegal
activity. The district court determined that there was a strong need for deterrence,
and George should be an example for others. Even though there was no financial
loss or violence here, it was not “for lack of trying.” The district court determined
that George was trying to be “a bad guy” and “a hood.”
The following then occurred:
The Court: Anything further from either side?
Prosecutor: No, Your Honor. I’d like to just briefly point out there
was a video of the defendant speaking with law
enforcement.
The Court: Yeah, I saw it. I remember.
Prosecutor: So that may be –
The Court: I remember seeing him talk a lot and that’s what made
me think it was in person but it wasn't, it was a video and
audio tapes; is that correct?
Defense Counsel: That’s correct, Your Honor.
The Court: Okay. The court has considered the statements of all the
parties, the presentence report which contains the
advisory guidelines and the statutory factors as set forth
in 18 USC section 3553(a). It is the finding of the court
that in addition to the statutory consecutive sentence the
court must impose, a sentence within, but at the low end,
of the advisory guideline range will provide sufficient
punishment and adequate deterrence.
The district court then imposed a total sentence of 259 months’ imprisonment—
235 months as to each of Counts 1 and 3, 120 months as to Counts 4 and 5, all to
run concurrently with each other, and a consecutive term of 24 months as to
Counts 6 and 7.
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After the district court pronounced the sentence and said that it would be in
recess, it stated that:
The Court: I want to make sure I gave the defendant -- I did ask if
the defense had anything further. I want to make sure that
you understood that that included the defendant, if he had
anything he wanted to say to me.
George: No, not at this moment. I’m okay, Your Honor. Thank
you for everything.
George timely appealed.
III. DISCUSSION
On appeal, Defendant George argues that the district court erred in applying
the U.S.S.G. § 2D1.1(b)(1) firearm increase and the § 2D1.1(b)(12) premises
increase. He also argues that his sentence is substantively unreasonable. Finally,
he argues that the district court plainly erred in failing to allow him to address the
court prior to his sentence being imposed. We address each issue in turn. 6
A. The Firearm Increase Was Proper
In a crime involving the manufacture, import, export, or trafficking of illegal
drugs, the sentencing guidelines direct that a two-level increase should be applied
“[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). The increase is appropriate “if the weapon was present, unless it is
6
This Court reviews de novo a district court’s interpretation of the guidelines and its
application of the guidelines to the facts, but it reviews the district court’s factual findings under
the clear-error standard. United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015).
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clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1
cmt. n.11(A). Whether a defendant possessed a firearm for purposes of
§ 2D1.1(b)(1) is a factual finding that we review under the clear-error standard.
United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).
The government bears the initial burden of showing, by a preponderance of
the evidence, that a firearm was “present” at the site of the charged conduct or that
the defendant possessed it during conduct associated with the offense of
conviction. Id. To meet its burden, the government must show that the firearm
had “some purpose or effect with respect to the drug trafficking crime; its presence
or involvement cannot be the result of accident or coincidence.” Id. (internal
quotation marks omitted). If the government meets this initial burden, the burden
then shifts to the defendant, who must establish that a connection between the
weapon and the offense was “clearly improbable.” Id.; see also United States v.
Carillo-Ayala, 713 F.3d 82, 90 (11th Cir. 2013) (noting that although the
government must show “mere presence,” the guideline places a “heavy burden of
negation” on the defendant).
Here, the district court properly applied the § 2D1.1(b)(1) increase to
George. The FBI found a firearm—a Glock pistol with a loaded, extended
ammunition magazine—behind the reception desk at the front of George’s salon.
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Both Pinkow and Velez testified to seeing a firearm with an extended clip stored
behind the reception area of the salon.
And the salon was clearly the site of the charged conduct—it operated as a
front for George’s illicit drug-trafficking and identity-theft operations. Barbershop
customers never used the back room of the salon. Instead, that area was filled with
ammunition, credit-card embossers and skimmers, a computer, and stacks of gift
cards and credit cards. Pinkow and Velez testified that they saw firearms,
marijuana, and equipment for packaging drugs (heat sealers, packaging equipment)
in the back of the salon. As our Court has noted before, “there is a strong
presumption that a defendant aware of the weapon’s presence will think of using it
if his illegal activities are threatened. The firearm’s potential use is critical.”
Carillo-Ayala, 713 F.3d at 92.
Thus, the government met its burden of showing by a preponderance of the
evidence that a firearm was “present” at the location where George ran his illegal
activities, and George failed to meet his burden of showing that it was “clearly
improbable” that the gun was connected to George’s drug trafficking crimes. See
United States v. Hall, 46 F.3d 62, 63-64 (11th Cir. 1995) (upholding the sentencing
increase where “the handgun was in the same room with objects ordinarily
associated with the drug trade: scales, a ziplock bag containing cocaine residue,
and a large amount of cash”).
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Although George disputes the credibility of the witnesses against him at
trial, the sentencing judge heard their testimony and George’s cross-examination of
them, and considered the witnesses’ extensive criminal histories. The district court
was thus entitled to find their testimony credible. United States v. Hesser, 800
F.3d 1310, 1330 (11th Cir. 2015) (in reviewing the district court’s findings of fact
at sentencing under the clear-error standard, noting that appellate courts “accord[]
special deference to the court’s finding of witness credibility”). Furthermore,
George’s acquittal at trial on the firearm-possession count does not negate the
application of a sentencing enhancement based on identical evidence because at
sentencing, the government need only prove the applicability of the enhancement
by a preponderance of the evidence, rather than beyond a reasonable doubt.
Stallings, 463 F.3d at 1220.
The district court did not clearly err in determining that the § 2D1.1(b)(1)
increase was appropriate as to George.
B. The Premises Increase Was Proper
If a defendant “maintained a premises for the purpose of manufacturing or
distributing a controlled substance,” a two-level increase is warranted. U.S.S.G.
§ 2D1.1(b)(12). This includes storage of a controlled substance for the purposes of
distribution. Id. § 2D1.1 cmt. n.17. The factors to be considered in determining
whether a defendant “maintained” the premises are (1) “whether the defendant held
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a possessory interest in (e.g., owned or rented) the premises,” and (2) “the extent to
which the defendant controlled access to, or activities at, the premises.” Id.
Furthermore, drug manufacturing or distribution need not be the “sole
purpose” of the premises, but must be one of the “primary or principal uses for the
premises,” rather than use that is “incidental or collateral.” Id. The commentary
directs that: “In making this determination, the court should consider how
frequently the premises was used by the defendant for manufacturing or
distributing a controlled substance and how frequently the premises was used by
the defendant for lawful purposes.” Id. Whether a defendant maintained a
premises for the manufacture or distribution of drugs is a finding of fact that we
review under the clear-error standard. See United States v. Barrington, 648 F.3d
1178, 1195 (11th Cir. 2011).
Few circuits have addressed this guideline, and we have done so only in a
handful of unpublished opinions. We thus turn to the reasoning of our sister
circuits. The circuits that have addressed this guideline appear to view the totality
of the circumstances to determine whether a defendant “maintained” a premises for
drug distribution or manufacture. See, e.g., United States v. Johnson, 737 F.3d
444, 447-48 (6th Cir. 2013) (explaining that “the more characteristics of a business
that are present in the home—such as tools of the trade (e.g., laboratory equipment,
scales, guns and ammunition to protect the inventory and profits), profits, large
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quantities of cash, and multiple employees or customers—the more likely it is that
the property is being used for the purpose of [prohibited] drug activities” (internal
quotation marks omitted)); United States v. Flores–Olague, 717 F.3d 526, 530–33
(7th Cir. 2013) (finding the premises increase applicable where the defendant
stored cocaine on the premises for several years, sold it to at least ten regular
customers, and had firearms in the home); United States v. Miller, 698 F.3d 699,
706–07 (8th Cir. 2012) (looking to numerous factors, such as the quantities of
drugs involved, maintenance of business records, and customer interactions, to
determine whether the principal use of the residence was drug distribution).
Relying on this persuasive authority, we conclude that the district court
properly applied § 2D1.1(b)(12) to George’s guidelines calculations. First, the trial
evidence supports the conclusion that one of the primary purposes of the
barbershop salon was for the distribution of drugs. Multiple witnesses described
the heat sealing machines and packaging supplies in the back of the salon. Velez
testified that the salon belonged to George, that he saw men in the back who
worked for George, and that George once offered to sell him cocaine while they
were at the salon. Pinkow testified that he also saw equipment for packaging and
distributing drugs, along with bags of marijuana and loose marijuana, in the back
of the salon. Pinkow testified that George told him that he made money at the
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salon “through the sale of marijuana, cocaine, things like that.” George also
offered to sell Pinkow six kilograms of cocaine at the salon.
Alternatively, the trial evidence supports the conclusion that one of the
primary purposes of the apartment was for the distribution of drugs. George
purchased multiple pounds of marijuana from Banner at the apartment, and Pinkow
saw two other men, packaging equipment, scales, heat-sealing machines, and
firearms in George’s apartment during that visit. Although George insists that he
lived in the apartment and “there was only one instance of drugs being delivered to
the apartment,” a premises can have more than one primary use, so long as the
drug activity is more than “incidental or collateral.” See U.S.S.G. § 2D1.1 cmt.
n.17; see also United States v. Sanchez, 810 F.3d 494, 497 (7th Cir. 2016). Based
on Pinkow’s testimony, the district court did not clearly err in determining that one
of the main uses of George’s apartment was for drug distribution.
The district court did not clearly err in determining that the § 2D1.1(b)(12)
increase was appropriate.
C. The Allocution Error
“Allocution is the right of the defendant to make a final plea on his own
behalf to the sentencer before the imposition of sentence.” United States v. Prouty,
303 F.3d 1249, 1251 (11th Cir. 2002). Federal Rule of Criminal Procedure 32
provides that “[b]efore imposing sentence, the court must . . . address the defendant
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personally in order to permit the defendant to speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).
Here, by merely asking if there was “[a]nything further from either side,” the
district court did not fulfill its obligation to address George personally in order to
permit him a chance to speak for himself. See id.; United States v. Perez, 661 F.3d
568, 584-85 (11th Cir. 2011) (explaining that, although district courts need not use
particular words to inform a defendant of his right to allocution, the court must
“ensure[] that the defendant knows of his right to speak or present information that
might convince the court to impose a favorable sentence”). Because George did
not object at the sentencing hearing to the district court’s denial of his right of
allocution, we review under the plain-error standard. See United States v. Doyle,
857 F.3d 1115, 1118 (11th Cir. 2017). Plain error requires (1) an error, (2) that is
plain, (3) that affects substantial rights, and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
As in Doyle, the district court’s failure in this case to personally address
George about whether he wished to make a statement was an error that was plain.
Id. (stating that “the district court’s failure to address Doyle personally about
whether he wished to make a statement to the court was error[,] . . . . [a]nd it was
‘plain’”). The ultimate question then, as in Doyle, was whether the error affected
the defendant’s substantial rights, i.e., whether the error prejudiced him. Id.
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In Doyle, we pointed out the difference between pre-Booker and post-
Booker sentencing, stating:
In the pre-Booker era, we presumed prejudice from a district court’s
failure to ask a defendant if he had anything to say before sentence
was pronounced, except in one circumstance. The exception was
where the defendant was sentenced at the low end of the applicable
mandatory guidelines range. United States v. Quintana, 300 F.3d
1227, 1232 (11th Cir. 2002). The question before us is whether that
low-end exception to a presumption of prejudice still applies in the
post-Booker advisory guidelines era.
Id. at 1117.
We further explained that our “Perez decision shows that the presumption of
prejudice in denial of allocution cases is still the rule when a defendant is not
sentenced at the bottom of his guidelines range, and that makes sense because
Booker did nothing to affect the rationale of that aspect of our rule.” Id. at 1120
(emphasis added). We added that “[t]he Perez decision did not, however, present
the issue of whether Booker affected the exception under which prejudice should
not be presumed from an allocution error where the defendant was sentenced at the
bottom of his guidelines range.” Id. Doyle presented that issue. Id.
This Court held in Doyle that “a defendant will generally be entitled to a
presumption that he was prejudiced by the district court’s failure to afford him his
right of allocution, which will satisfy the plain error rule’s third requirement, even
if he received a sentence at the low end of his advisory guidelines range.” Id. at
1121 (emphasis added). We explained that, “[b]ecause the sentencing guidelines
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are now advisory, in most cases a lower sentence will be possible even where the
defendant is sentenced at the bottom of his advisory guidelines range.” Id. at 1120.
As such, the logic underpinning “our pre-Booker decisions rejecting a presumption
of prejudice in bottom-of-the-range cases[,] . . . that the guidelines were mandatory
and the bottom of a range was as far low as a sentence could go,” no longer
applies. Id. at 1120-21.
Nevertheless, we noted that we need not “presume prejudice in one hundred
percent of denial of allocution cases.” Id. at 1121. “To take one example, if a
defendant is sentenced to the statutory mandatory minimum sentence, there should
be no presumption of prejudice.” Id. But George’s case, like Doyle, “is not a
mandatory minimum sentence case.” Id. “The district court could have varied
downward from the sentence it imposed if convinced by [George] during
allocution to do so.” See id. Thus, like the defendant in Doyle, even though
George received a sentence at the low end of his advisory guidelines range, he is
nevertheless entitled to a presumption of prejudice, satisfying the third prong of
plain-error review and necessitating vacatur of the sentence.
The fact that George declined to address the court after his sentence was
imposed does not change this outcome. Rule 32 clearly states that a district court
should ask a defendant whether he wishes to speak for himself “[b]efore imposing
sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added). We cannot know
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what George would have said had he properly been addressed by the district court
and asked if he had anything to say before his sentence was handed down. It is
entirely likely that George refrained from saying anything further in this case
because the sentence was already imposed, the case closed. As we have noted,
“[t]he most persuasive counsel may not be able to speak for a defendant as the
defendant might, with halting eloquence, speak for himself.” Prouty, 303 F.3d at
1251 (quoting Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655 (1961)
(Frankfurter, J., plurality opinion)); see also United States v. Bustamante-Conchas,
850 F.3d 1130, 1139-40 (10th Cir. 2017) (stating that “there is at least a reasonable
probability that allocution matters in the usual case,” and noting a survey showing
that 80 percent of federal district judges stated that allocution was at least
“somewhat important” in arriving at a final sentence, and further showing that
defendants allowed the right to allocute at resentencing generally received a lesser
sentence on remand).
We do not find persuasive the government’s heavy reliance on Gordon v.
United States, 438 F.2d 858, 880-82 (5th Cir. 1971). In Gordon, the district court
imposed a sentence without giving the defendant the chance to allocute. 438 F.2d
at 880. Apparently realizing its mistake, the district court then asked the defendant
if he wished to make a statement and to present any mitigating information. Id. at
880. The district court’s question to the defendant after pronouncing his
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sentence—“[D]o you wish to make a statement in your own behalf and to present
any information in mitigation of punishment?”—closely tracked the version of
Rule 32 then in effect and also suggested to the defendant that the court would
reconsider its sentence in light of whatever the defendant might have said. See id.
at 880 & n.88.
On appeal, the former Fifth Circuit held that the district court’s Rule 32(a)
error in not allowing allocution prior to sentencing did not require a remand
because “it seem[ed] reasonable to assume that any statement which [the
defendant] might have made (in mitigation of his punishment) the moment before
sentencing would have been equally as effective the moment after pronouncement
of sentence.” Id. at 882. The former Fifth Circuit also added the following:
“Influencing our decision in this regard is the record disclosure that [the
defendant], himself a lawyer, did not feel a total restraint on his right to speak
during the sentencing; at the hearing he inquired whether he would be granted
release pending appeal.” Id.
The government argues that, under Gordon, the denial of allocution here did
not constitute plain error. Its position is not unreasonable. After all, George—like
the defendant in Gordon—was offered an opportunity to speak after the district
court had imposed sentence. However, Gordon is distinguishable on a number of
important grounds.
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First, Gordon was decided long before this Court adopted a presumption of
prejudice when a defendant is not afforded the opportunity to allocute prior to the
imposition of a sentence. See Prouty, 303 F.3d at 1252-53. Given that
presumption, the only question at issue in this case is whether the now advisory
nature of the Sentencing Guidelines means that the presumption of prejudice
should be extended to instances where defendants who receive no opportunity to
allocute are given a minimum guideline sentence. Doyle has already answered that
question in the affirmative. Doyle, 857 F.3d at 1121.
Second, words matter, and the statement of the district court in Gordon was
materially different than the statement of the district court here. The district court
in Gordon asked the defendant if he wanted to “present any information in
mitigation of punishment,” thereby suggesting to him that any such information
could have an effect on his sentence. Gordon, 438 F.2d at 880. Here, when the
district court asked George “if he had anything he wanted to say,” it never
indicated that post-sentencing allocution could cause it to reassess the sentence
already imposed. It was reasonable for George to think that allocution, at that
point in time, would be nothing more than an empty formality, particularly when
the district court had already characterized him as not being truthful with law
enforcement, as being a “con man,” as being a “consummate B.S. artist,” as having
enough money to have expensive cars and “hire a really good lawyer,” and as
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“trying to be a bad guy” (and had incorrectly accused him of testifying falsely at
trial).
Third, Gordon relied in part on two critical facts that are missing here: the
defendant was an attorney, and he had asked about bond pending appeal during the
sentencing hearing (which indicated that he knew he could speak). See id. at 882.
Because George is not a lawyer, and because he did not speak at all prior to the
imposition of sentence, we cannot affirm on the basis of Gordon.
Accordingly, we vacate George’s sentence and remand to the district court
for resentencing. At this proceeding, George “is entitled to an opportunity to
allocute and have the court resentence him after he says what he wishes to say to
the judge.” Doyle, 857 F.3d at 1121. But he is not entitled to an entirely new
resentencing—he may not reassert or reargue any of his objections to the PSR, file
new objections to the PSR, or file a new sentencing memorandum. Id. As in
Doyle, our aim is to “return [George] to the position he was in on the day of his
original sentence hearing.” Id.
Because we remand to the district court to impose a new sentence, we
decline to reach the issue of substantive reasonableness.
IV. CONCLUSION
For the reasons given above, we vacate George’s 259-month total sentence
and remand for resentencing in accordance with this opinion.
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VACATED AND REMANDED.
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