United States v. Dennis Carter ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Joseph R. Goodwin, District Judge. (2:17-cr-00198-2)
Submitted: April 29, 2019 Decided: July 22, 2019
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Paul F. Enzinna, ELLERMAN ENZINNA PLLC, Washington, D.C., for Appellant.
Michael B. Stuart, United States Attorney, John J. Frail, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Dennis Carter pled guilty to conspiracy to distribute
100 grams or more of heroin, in violation of 21 U.S.C. § 846 (2012). The district court
designated Carter a career offender and sentenced him to 188 months’ imprisonment, the
bottom of the career offender Sentencing Guidelines range. Carter appeals, seeking
resentencing because he was not afforded an opportunity to allocute and because he alleges
that he was improperly designated a career offender. For the reasons that follow, we vacate
Carter’s sentence and remand for further proceedings.
Under Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure, a district
court must “address the defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” Because Carter failed to object in the
sentencing court to the denial of his right to allocute, our review is for plain error. United
States v. Engle, 676 F.3d 405, 424 (4th Cir. 2012). To establish plain error, Carter must
show:
(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected [his] substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.
Id. (brackets omitted).
Carter satisfies the first two prongs of the plain error test. It is undisputed that the
district court failed to provide Carter with an opportunity to allocute. Thus, there was error
that was plain. United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993). If Carter can
show “the ‘possibility remain[s]’ that [he] could have received a lesser sentence had he
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been permitted to allocute at [sentencing], he has sufficiently shown that he was prejudiced
by the denial of allocution,” and we will “exercise our discretion to notice the error.”
United States v. Muhammad, 478 F.3d 247, 251 (4th Cir. 2007) (quoting United States v.
Cole, 27 F.3d 996, 999 (4th Cir. 1994)).
Carter received a sentence at the bottom of the advisory career offender Guidelines
range. He argues that, had he been afforded an opportunity to allocute, he might have been
able to convince the court to sentence him below this range. As Carter concedes, his
attorney sought a downward variance, arguing that, inter alia, Carter’s criminal history
category and the career offender enhancement overstated the seriousness of his prior
offenses. Counsel emphasized that Carter’s prior offenses involved small drug quantities
and he received probationary sentences.
In denying a downward variance, the district court acknowledged counsel’s
arguments, but noted that, after repeatedly being caught and committing drug trafficking
crimes involving smaller quantities of controlled substances, Carter committed the instant
offense, which involved the distribution of a significant quantity of heroin. The district
court was thus well aware of the nature of Carter’s prior offenses but was concerned with
his recidivism and the fact that the instant offense was a substantial escalation in his prior
drug distribution activities.
Nevertheless, the “possibility remains” that Carter would have received a shorter
sentence had he been given the opportunity to allocute. Muhammad, 478 F.3d at 251. In
particular, Carter may have been able to prevail upon the court to sentence him below the
Guidelines range by asserting that he played a lesser role in the conspiracy than his
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coconspirators, or he could have explained his predicate offenses in a manner that
convinced the court that he should not be sentenced as a career offender. See Cole, 27 F.3d
at 999 (finding that defendant demonstrated prejudice from denial of allocution because he
might have been able to reduce his offense level by showing that he should be held
accountable for lesser drug quantity or had accepted responsibility). Even though counsel
argued unsuccessfully for a downward variance, “[t]he most persuasive counsel may not
be able to speak for a defendant as the defendant might, with halting eloquence, speak for
himself.” Green v. United States, 365 U.S. 301, 304 (1961). We therefore exercise our
discretion to notice the error in failing to provide Carter an opportunity to allocute.
Accordingly, we vacate Carter’s sentence and remand for a new sentencing hearing
at which Carter is afforded an opportunity to allocute before sentence is imposed. Because
we are vacating Carter’s sentence, we decline to address Carter’s claim that his § 846
conviction does not meet the definition of a controlled substance offense for purposes of
the career offender Guidelines. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
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