United States v. Darcy Piloto , 705 F. App'x 921 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10184
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20710-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARCY PILOTO,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 29, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Darcy Piloto appeals his 120-month sentence, representing a 79-month
upward variance, for possession of a firearm and ammunition as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). The sentence was imposed after his original
235-month sentence was vacated pursuant to Johnson v. United States, 135 S. Ct.
2551 (2015). On appeal, Piloto argues that the district court plainly erred by
failing to allow him an allocution before imposing his sentence. Further, Piloto
argues that his sentence is substantively unreasonable because the district court
relied too much on his criminal history to the exclusion of the other 18 U.S.C.
§ 3553(a) factors and his efforts at post-sentencing rehabilitation. After careful
review, we affirm.
I.
Piloto argues that the district court plainly erred by failing to allow him an
allocution before imposing his sentence. “Allocution is the right of the defendant
to make a final plea on his own behalf to the sentencing judge before his sentence.”
United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008) (per curiam). Under
Fed. R. Crim. P. 32(i)(4)(A)(ii), the court must, “before imposing [a] sentence,”
“address the defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” We review for plain error a
district court’s failure to allow allocution, if the defendant did not timely object.
United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). To find reversible
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error under this standard, we must conclude that “(1) an error occurred, (2) the
error was plain, and (3) the error affected substantial rights.” Id. at 1251–52. To
affect substantial rights, the plain error must be “prejudicial: It must . . . affect[]
the outcome of the district court proceedings.” United States v. Olano, 507 U.S.
725, 734, 113 S. Ct. 1770, 1778 (1993).
During the sentencing hearing, the district court announced the sentence
before allowing Piloto an opportunity for allocution. Because neither Piloto nor
his attorney objected to the post-sentence allocution, the plain error standard of
review applies. Piloto is correct that the sentencing court erred in announcing his
sentence before an opportunity for allocution and that the error was plain. See Fed.
R. Crim. P. 32(i)(4)(A)(ii). However, Piloto fails to demonstrate that the plain
error affected his substantial rights. The sentencing court afforded Piloto an
opportunity to allocute before the end of the sentencing hearing and, while
considering Piloto’s allocution, left open the possibility of changing the announced
sentence. Also, in response to the allocution—during which Piloto stated that the
court should consider his rehabilitation efforts—the district court explicitly stated
that it accepted Piloto’s representation of his rehabilitative efforts as true and
considered them but that the efforts were not sufficient to change the sentence
imposed. Piloto’s argument that the district court plainly erred fails.
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II.
Piloto argues that his sentence is substantively unreasonable because the
district court relied too much on his criminal history to the exclusion of the other
18 U.S.C. § 3553(a) factors and his efforts at post-sentencing rehabilitation. The
district court must impose a sentence “sufficient[] but not greater than necessary to
comply with the purposes” of § 3553(a)(2). 18 U.S.C. § 3553(a). Also, the district
court must “consider all of the § 3553(a) factors to determine whether they support
the sentence requested by a party,” United States v. Pugh, 515 F.3d 1179, 1189–90
(11th Cir. 2008). We review the substantive reasonableness of a sentence for
abuse of discretion, regardless of whether the sentence imposed is within the range
recommended by the Sentencing Guidelines. Gall v. United States, 552 U.S. 38,
51, 128 S. Ct. 586, 597 (2007). During review, we must “take into account the
totality of the circumstances, including the extent of any variance,” and “must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id.
In imposing Piloto’s sentence, the district court explicitly considered all of
the § 3553(a) factors. Although the district court emphasized Piloto’s criminal
history during sentencing, “[p]lacing substantial weight on a defendant’s criminal
record is entirely consistent with § 3553(a) because five of the factors it requires a
court to consider are related to criminal history.” United States v. Rosales-Bruno,
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789 F.3d 1249, 1263 (11th Cir. 2015). Also, the district court explicitly stated that
it had considered Piloto’s rehabilitative efforts but declined to grant a downward
variance. Although a sentencing court may consider evidence of a defendant’s
post-sentencing rehabilitation, which could support a downward variance, the court
is not required reduce a sentence based on a showing of post-sentencing
rehabilitation. See Pepper v. United States, 562 U.S. 476, 481, 490, 505 n.17
(2011). In light of all the circumstances, we determine that the ultimate sentence is
reasonable.
AFFIRMED.
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