United States v. Leslie , 310 F. App'x 607 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4330
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VERNON GRAY LESLIE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00132-BO-1)
Submitted: January 12, 2009 Decided: February 5, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vernon Gray Leslie, Jr., appeals from the thirty-
seven-month sentence imposed following his guilty plea to two
counts of larceny of United States Postal Service money orders
and one count of receiving, concealing, and retaining stolen
United States Postal Service money orders, in violation of 18
U.S.C. § 641 (2006). On appeal, Leslie contends that the
district court erred by not allowing him or his attorney the
chance to be heard after the court adopted the Government’s
proposed upward departure and denying Leslie’s right to
allocution prior to imposition of sentence.
Before imposing sentence, the district court shall
address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the
sentence. See Fed. R. Crim. P. 32(i)(4)(A)(ii). In United
States v. Cole, 27 F.3d 996 (4th Cir. 1994), we held that the
denial of allocution constitutes plain error on direct appeal
warranting a remand for resentencing in those instances in which
there is a possibility the defendant could receive a lower
sentence. We noticed the error in Cole, finding that “[w]hen a
defendant was unable to address the court before being sentenced
and the possibility remains that an exercise of the right of
allocution could have led to a sentence less than that received,
we are of the firm opinion that fairness and integrity of the
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court proceedings would be brought into serious disrepute were
we to allow the sentence to stand.” Id. at 999; see also United
States v. Muhammed, 478 F.3d 247 (4th Cir. 2007).
Likewise here, there was a possibility that Leslie
could have convinced the court to impose a lower sentence.
Specifically, Leslie and counsel could have argued against the
upward departure determined by the court, could have argued in
favor of Leslie’s motion for downward departure based on his
health issues, and could have addressed the 18 U.S.C. § 3553(a)
(2006) sentencing factors. Accordingly, while we affirm the
convictions, we vacate the sentence and remand for resentencing
to give Leslie the opportunity to allocute. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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