NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2010*
Decided May 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐2446
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 506‐1
FLOYD DEBERRY,
Defendant‐Appellant. Rebecca R. Pallmeyer,
Judge.
O R D E R
Floyd DeBerry was arrested with a gun in Indiana three months after he completed a
federal prison term for distributing crack and began serving a term of supervised release.
He pleaded guilty in the Northern District of Indiana to possessing a gun as a felon,
18
U.S.C. § 922(g)(1), and was sentenced to 57 months’ imprisonment, the low end of the
guidelines range. DeBerry also admitted in the Northern District of Illinois, where his
*
After examining the briefs and the record, we conclude that oral argument is not
necessary. The appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐2446 Page 2
supervision for the drug crime was being monitored, that he violated the conditions of his
release by possessing the gun. He was given a 21‐month term of reimprisonment, to run
consecutively to the § 922(g) sentence. We have already resolved DeBerry’s appeal from the
Northern District of Indiana, see United States v. DeBerry,
576 F.3d 708 (7th Cir. 2009), and
now address his appeal from the revocation of supervised release. DeBerry argues that he
was denied the right to allocute at the revocation hearing.
The district court in Illinois conducted a hearing during which the parties discussed
whether the district court in Indiana had considered DeBerry’s potential reincarceration for
violating the terms of his supervision when it sentenced him for possessing the gun, and
whether the Illinois district court should take that question into consideration when
determining an appropriate term of reimprisonment. After brief arguments from counsel,
the court said, “I guess I need to hear from Mr. DeBerry.” DeBerry then explained his
understanding of the Indiana sentence and told the court he was trying to be a lawful
citizen and had the gun because he was concerned for his children’s safety. The court
continued the hearing to another day so that it could review the transcript from the
Northern District of Indiana.
When the hearing resumed, DeBerry’s counsel asked if DeBerry could address the
court, and DeBerry argued that he should have received three instead of two points for
acceptance of responsibility in the Northern District of Indiana. See U.S.S.G. § 3E1.1(b). The
district court replied that DeBerry would have to make that argument in an appeal from the
§ 922(g) conviction (we later resolved the issue against him, see DeBerry,
576 F.3d at 711).
After hearing arguments from counsel on the appropriate term of reimprisonment for
violating the terms of supervision, the court stated:
The range of 21 to 27 months seems appropriate to me and what Iʹm going to
do is impose a 21‐month sentence and Iʹm going to make that consecutive to
what Mr. DeBerry is facing in the Indiana sentence.
It does seem to me that a serious sanction is warranted. And I realize that the
range is discretionary, but I do think itʹs appropriate in this case. It will be
followed by an additional 2 years of supervised release.
Mr. Deberry, is there anything further that you want to say?
(Emphasis added.) DeBerry answered that he had not been trying to harm anyone and was
trying to turn his life around. The term seemed harsh, he added, compared to the sentences
other felons had received for § 922(g) violations. After listening to DeBerry the court
repeated its conclusion that a consecutive term of 21 months was appropriate.
No. 09‐2446 Page 3
DeBerry argues on appeal that the district court deprived him of his right to
allocution, see FED. R. CRIM P. 32.1(b)(2)(E), by imposing the term of reimprisonment before
asking him if he had anything to say. That rule requires a court to ask the defendant if he
wants to make a statement, to potentially mitigate punishment, before imposing a term of
reimprisonment. United States v. O’Hallaren, III,
505 F.3d 633, 635 (7th Cir. 2007); United
States v. Pitre,
504 F.3d 657, 661‐62 (7th Cir. 2007). The requirement is not met simply by
inviting the defendant to speak ”at some point before the close” of the proceeding. United
States v. Luepke,
495 F.3d 443, 449 (7th Cir. 2007) (discussing parallel FED. R. CRIM. P.
32(i)(4)(A)(ii)). Instead, the district court must convey to the defendant that making a
statement can influence the outcome.
Id. Because DeBerry did not object at sentencing, we
review for plain error, which requires us to determine whether error (1) occurred, (2) was
plain, and (3) affected DeBerry’s substantial rights. See Pitre,
504 F.3d at 661. If these
requirements are met, we may exercise discretion to reverse if we conclude that the error
“‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’”
O’Hallaren III,
505 F.3d at 636 (quoting Johnson v. United States,
520 U.S. 461, 467 (1997)).
Here, the government confesses error, but we are still required to make an
independent assessment. Nunez v. United States,
546 F.3d 450, 452‐53 (7th Cir. 2008); United
States v. Wilson,
237 F.3d 827, 833 (7th Cir. 2001). We agree with the parties that there was
error, but we do not find that remand is required. When the district judge said on the first
day of the revocation hearing that she wanted “to hear from Mr. DeBerry,” the court did not
(if it was attempting to) invite DeBerry’s allocution. This is because the court is required to
address the defendant personally. Pitre,
504 F.3d at 661‐62. The court referred to DeBerry in
the third person, presumably because it was still addressing counsel. See United States v.
Noel,
581 F.3d 490, 502 (7th Cir. 2009). Accordingly, before announcing that it was “going to
impose a 21‐month sentence” the court did not personally invite DeBerry to speak about
matters that he thought should affect his term of reimprisonment. This was a plain error.
See
id. And it was also a violation of DeBerry’s substantial rights because we presume
prejudice if there is any possibility the court would have imposed a shorter term of
reimprisonment if the court had allowed the defendant to speak before imposing the term.
See O’Hallaren III,
505 F.3d at 636.
But we do not conclude that this error seriously affected “the fairness, integrity, or
public reputation of judicial proceedings.”
Id. This is because, even though the court may
have technically violated Rule 32.1, it is apparent that DeBerry thought the statement “I
need to hear from Mr. DeBerry” was his opportunity to inform the court of factors that
might influence his term of reimprisonment. After the court opened discourse with
DeBerry, he told the court that he had been looking for a job, that he moved out of Chicago
to avoid trouble, and that he had children that he was trying to protect. DeBerry does not
argue on appeal that he would have said more in mitigation, and the government has not
No. 09‐2446 Page 4
offered any basis for its unreasoned conclusion that this discretionary element of the plain‐
error doctrine is satisfied. See Pitre,
504 F.3d at 662‐63; United States v. Magwood,
445 F.3d
826, 830 (5th Cir. 2006); United States v. Reyna,
358 F.3d 344, 352‐53 (5th Cir. 2004); United
States v. Quintana,
300 F.3d 1227, 1231‐32 (11th Cir. 2002); United States v. Gerrow,
232 F.3d
831, 834 (11th Cir. 2000) (per curium); United States v. Karam,
201 F.3d 320, 330‐31 (4th Cir.
2000). Accordingly, we do not conclude that the failure to formally invite allocution
undermined the integrity, fairness, or public reputation of the proceedings. See Noel,
581
F.3d at 503‐04 (affirming sentence when there was no opportunity for allocution but
defendant’s letter, which was structured like an allocution, was read out loud prior to
imposition of sentence).
AFFIRMED.
