United States v. Gonzalez ( 2008 )

07-4824-cr
U.S.A.. v. Gonzalez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
Heard: May 12, 2008 Decided: June 11, 2008
Docket No. 07-4824-cr
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UNITED STATES OF AMERICA,
Appellee,
v.
ROLONDO GONZALEZ,
Defendant-Appellant.
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Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.
Appeal from the October 31, 2007, judgment of the United States
District Court for the Southern District of New York (Samuel Conti,
District Judge, Northern District of California, sitting by
designation), imposing a sentence of 24 months for violation of
supervised release. Appellant challenges omission of presentence
allocution.
Remanded for vacation of sentence and resentencing.
Steven M. Statsinger, Federal Defenders
of New York, Inc., Appeals Bureau, New
York, N.Y., for Defendant-Appellant.
David S. Leibowitz, Asst. U.S. Atty., New
York, N.Y. (Michael J. Garcia, U.S.
Atty., Diane Gujarati, Asst. U.S.
Atty., New York, N.Y., on the brief),
for Appellee.
JON O. NEWMAN, Circuit Judge:
This sentencing appeal primarily concerns the omission of a
defendant’s opportunity to address the sentencing judge prior to
imposition of sentence. Defendant-Appellant Rolando Gonzalez appeals
from the October 31, 2007, judgment of the District Court for the
Southern District of New York, before Judge Samuel Conti (District
Judge, sitting by designation), sentencing him to the statutorily
maximum term of twenty-four months of incarceration for violating his
supervised release. On appeal, he contends that Judge Conti’s
sentence was procedurally and substantively unreasonable. We conclude
that the case must be remanded for resentencing.
Background
In January 2005, Gonzalez pled guilty to two firearms violations,
and in April 2005, was sentenced to concurrent prison terms of 33
months for each violation, to be followed by a term of supervised
release of three years. He was released from prison in November 2006
and transferred to immigration custody, from which he was released in
December 2006.
In April 2007, the Probation Department (“Probation”) filed a
warrant with the District Court, charging that Gonzalez had violated
the terms of his supervised release in five specific ways: (1) failure
to report to Probation within 72 hours of his release from immigration
custody, (2) failure to report to Probation after receiving notices
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on various dates, (3) possession of a gravity knife in violation of
New York law, (4) possession of a bag of marijuana, and (5) pleading
guilty to disorderly conduct in state court in February 2007. The
petition listed each specified violation as a “Grade C” violation.
See U.S.S.G. § 7B1.1(a)(3).
At an initial hearing, the parties agreed that, in satisfaction
of the petition, Gonzalez would admit to failing to report to
Probation within 72 hours of release. However, at that hearing,
Gonzalez contended that he did report, and Judge Conti ordered a
hearing on that issue for the following week. Probation issued an
amended petition, adding a sixth “Grade C” violation--that prior to
his arrest on the revocation warrant, Gonzalez had pled guilty to
criminal mischief, a violation of New York State Law. Probation
advised Judge Conti that Gonzalez faced a statutory maximum sentence
of two years’ imprisonment for violation of supervised release, see
18 U.S.C. § 3583(e)(3), and that the Guidelines range, based on
Gonzalez’s commission of a Grade C violation and his Criminal History
Category of II, was four to ten months’ imprisonment, see U.S.S.G.
§ 7B1.4(a).
At the resumed hearing, Gonzalez admitted the fourth violation--
possession of marijuana--in satisfaction of the remaining
specifications. The Judge then instructed the probation officer to
report about Gonzalez’s conduct since his release from immigration
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custody in December 2006, and scheduled a sentencing hearing the
following week for the admitted supervised release violation.
At the sentencing hearing, defense counsel attempted to clarify
the confusion that had arisen at the earlier hearing as to whether
Gonzalez had reported to his probation officer after his release.
Counsel indicated that Gonzalez had reported to an immigration
officer, but not to his probation officer. Counsel acknowledged that
when Gonzalez was released from federal prison, he was instructed to
report to Probation, but explained that he was transferred to
immigration custody and later released to immigration parole, for
which he was given separate reporting instructions. Counsel
represented that Gonzalez reported to an immigration official “for a
time,” but did not report to the Probation office. Judge Conti made
no comment on this explanation.
Gonzalez’s probation officer, Veronica Casanova, testified that
Gonzalez was released from prison on November 22, 2006, and from
immigration custody on December 7, 2006. She indicated that Probation
sent three notices to Gonzalez directing him to report, the third of
which advised him of a February 16, 2007, appointment and was returned
with his signature. Gonzalez did not keep the appointment. Casanova
also testified that, while conducting a criminal records check, she
learned that Gonzalez had been arrested twice in 2007, and that he had
been sentenced to a one-year conditional discharge for disorderly
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conduct and 30 days in prison for criminal mischief.
On cross-examination, defense counsel asked Casanova if she knew
whether Gonzalez had reported to any immigration officials after his
release on immigration parole, and Casanova answered that she had left
a message with an immigration officer but had not received any reply.
After the testimony concluded, Judge Conti asked the Government
for its position. The Government noted that the Guidelines range was
4 to 10 months, but stated that it “takes no position other than
that.” Defense counsel argued for a sentence at or below the low end
of the range, noting that all alleged violations were Grade C and that
Gonzalez’s failure to report resulted, at least in part, from his not
having a complete understanding that he was required to report to two
separate agencies.
Without affording Gonzalez an opportunity to address the Court
before imposition of sentence, Judge Conti stated:
I can’t see any benefit to society or anybody else,
including him, to have any other benefit of the probation
department, which he’s completely ignored. He knows what
he’s doing. He’s not an unintelligent individual. He
spent some time incarcerated, he came out, he’s supposed to
be on supervised release and it did him no good. It’s not
going to do him any good in the future. The Court is very
well cognizant of the fact that the guidelines are four to
ten months, but I see no benefit of giving him this
particular time. I am going to exceed it and revoke his
supervised release and sentence him to the remaining term
of it, which is three years.
At this point, the prosecutor noted that the statutory maximum was
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two, and Judge Conti said, “Two years then.”
Defense counsel objected, stating that the sentence wasn’t
warranted, “certainly not in light of the reasons the Court gave.”
Later that day, Judge Conti called the parties back to the
courtroom. He informed Gonzalez that he had forgotten to tell him
that he had a right to appeal the sentence imposed, and that if he
could not afford an attorney, the Court would appoint one for him.
Then, after defense counsel reminded the Judge about the omission of
presentence allocution, the Judge explained to Gonzalez that he had
a right to speak on his own behalf, telling him, “[Y]ou have the right
to say anything to the Court you want to and it may very well be that
there are occasions when the Court changes its mind. You have a right
to say anything you want to at this time.” Gonzalez stated, as an
explanation for his supervised release violation, that he had “an
alcohol and a drug problem.” Judge Conti stated he would be “happy
to recommend an alcohol and drug program during your incarceration.”
Discussion
All federal sentences, including those imposed for violations of
supervised release, are reviewed for reasonableness. See United
United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005).
Reasonableness has both substantive and procedural dimensions. See
Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v.
Crosby, 397 F.3d 103, 114 (2d Cir. 2005).
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Procedural claims. A sentence is unreasonable if it is the
product of a “significant procedural error.” Gall, 128 S. Ct. at 597.
Gonzales’s principal procedural claim is that he was denied his right
to presentence allocution. A defendant has a right, protected by the
Federal Rules of Criminal Procedure, to address the sentencing judge
before the imposition of sentence. See Fed. R. Crim. P.
32(i)(4)(A)(ii); United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.
1996). This right of presentence allocution applies to sentences
imposed for revocation of supervised release. See Fed. R. Crim. P.
32.1(b)(2)(E); Margiotti, 85 F.3d at 103.
We have stated that “[r]esentencing is generally required if a
court does not comply with the requirements of Rule 32,” Margiotti,
85 F.3d at 103 (citing United States v. Axelrod, 48 F.3d 72, 72-73 (2d
Cir. 1995)). However, we did not require resentencing where a judge
omitted an opportunity for allocution but ”immediately recognized the
lapse and offered the defendant the right of allocution,” “gave [the
defendant’s] statements full consideration,” and “responded by giving
reasons for his decision to adhere to the previously announced
sentence.” Id. Under these circumstances, we regarded the sentence
as only “announced” without prior allocution but not “imposed” until
after allocution. See id.; see also United States v. Barnes, 948 F.2d
325, 331 n.5 (7th Cir. 1991) (“[A] trial judge, realizing after
sentencing that the right of allocution has been neglected, may
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rectify the situation by, in effect, setting aside the sentence,
reopening the proceeding, and inviting the defendant to speak. . . .
[T]he trial court must genuinely reconsider the sentence in light of
the elicited statement.”).
In the pending case, the District Judge not only omitted an
opportunity for presentence allocution but also failed to conform to
the special circumstances deemed sufficient to avoid resentencing in
Margiotti. First, the opportunity for allocution was not provided
immediately but only later in the day. More important, there is no
indication that the District Judge responded to the Defendant’s
statement “by giving reasons for his decision to adhere to the
previously announced sentence.” Margiotti, 85 F.3d at 103. The Judge
said only that he would recommend an alcohol and drug program during
the Defendant’s incarceration but did not mention the already imposed
sentence or give reasons for adhering to it. Under these
circumstances, it cannot be said, as the Seventh Circuit stated in
Barnes, that the sentence was, “in effect, set[] aside” and the
proceedings “reopen[ed].” 948 F.2d at 331 n.5.
The appropriate response to an omission of presentence allocution
implicates due regard for the appearance of fairness. Whether or not
the allocution rights secured by Rules 32 and 32.1 can be satisfied
by full compliance with the Margiotti procedures, we believe that the
preferable course for remedying a denial of presentence allocution is
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to vacate the sentence, accord the right of allocution, and sentence
anew. In the pending case, the District Judge did not vacate the
original sentence. Instead, he told the Defendant that “there are
occasions when the Court changes its mind.” Although the distinction
is subtle, there is a difference between speaking to a judge when the
slate is clean and speaking after sentencing in an effort to have the
judge change his mind. Whatever the value of sentencing allocution,
neither a defendant nor observers in the courtroom are likely to
believe that an opportunity to try to talk a judge out of a sentence
already imposed is as effective as an opportunity to speak before a
sentence has been imposed.
Without questioning any of our prior decisions, we conclude that
in this case and prospectively the remedy for omission of an
opportunity for presentence allocution should be vacation of the
sentence and a new sentencing proceeding in conformity with Rules 32
and 32.1. We make this decision in the exercise of our “supervisory
powers to oversee the administration of criminal justice within
federal courts,” Daye v. Attorney General, 712 F.2d 1566, 1571 (2d
Cir. 1983), an authority we have exercised with respect to sentencing
procedures, see United States v. Ming He, 94 F.3d 782, 792 (2d Cir.
1996), “particularly when we are dealing with a procedure for which
a uniform practice is called for,” id.; see also United States v.
Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (asserting availability of
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supervisory powers for sentencing procedures). We are mindful that
supervisory powers are not to be used to circumvent the harmless error
rule, see Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55
(1988), but we do not believe that noncompliance with Rule 32.1 was
harmless error in this case.
Gonzalez also challenges the adequacy of the District Judge’s
brief statement of reasons for the sentence imposed, but, since
resentencing is required, we can expect that whatever sentence is
imposed will be appropriately explained.
Substantive claim. Substantive reasonableness review concerns
“whether the length of the sentence is reasonable.” United States v.
Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006). This review focuses on
a district court’s explanation of its sentence in light of the factors
contained in 18 U.S.C. § 3553(a). See United States v. Sindima, 488
F.3d 81, 84 (2d Cir. 2007); Rattoballi, 452 F.3d at 134-35.
Substantive reasonableness review “is akin to review for abuse of
discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.
2006). A district court is statutorily required to “state in open
court the reasons for its imposition of [a] particular sentence.” 18
U.S.C. § 3553(c). Where, as here, the sentence is outside of an
advisory Guidelines range, “the court must also state with specificity
in the written order the specific reason for the sentence imposed.”
Sindima, 488 F.3d at 85 (internal quotation marks omitted).
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Here, Gonzalez’s two-year sentence was more than twice as long
as the ten-month high-end of his Guidelines range. Cf. Sindima, 488
F.3d at 85-87 (36-month sentence for violation of probation not
supported by sufficiently compelling reasons). Determination of
whether the sentence is unreasonable is hampered by the brevity of the
reasons given for it. We note that the Sentencing Commission’s policy
statement concerning violation of supervised release recommends that
“the court should sanction primarily the defendant’s breach of trust,
while taking into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.”
U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b); see United States v.
Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008); Sindima, 488 F.3d at
86. It is not clear whether the District Judge had this policy
statement in mind and endeavored to make a justified decision to
impose a non-Guidelines sentence without regard to it. Since
resentencing is required, a decision on reasonableness of sentence
length can be deferred until such time as a new sentence, properly
imposed, might be challenged on appeal.
Conclusion
For the foregoing reasons, the case is remanded for vacation of
the sentence and resentencing.
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