United States v. Fancher , 328 F. App'x 268 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY RAY FANCHER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00013-REM-JSK-1)
Submitted: April 30, 2009 Decided: June 26, 2009
Before TRAXLER and KING, Circuit Judges, and Benson Everett
LEGG, Chief United States District Judge for the District of
Maryland, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, David J. Perri, Robert H. McWilliams, Jr., Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court after resentencing on
remand. In our previous decision, we found error in the
district court’s failure to provide advance notice that it was
considering an upward variance in sentencing Fancher. We
accordingly vacated Fancher’s sentence and remanded for
resentencing. United States v. Fancher, 513 F.3d 424 (4th Cir.
2008). On remand, the district court provided advance notice
that it was again considering an upward variance, conducted the
resentencing hearing, and again sentenced Fancher to the
statutory maximum 480 months of imprisonment. The court did
not, however, provide Fancher an opportunity to address the
court prior to the imposition of sentence, as required by Fed.
R. Crim. P. 32(i)(4)(A)(ii). Counsel for Fancher objected, but
the district court did not take corrective action. Fancher
timely appealed.
On appeal, Fancher argues that his due process rights
were violated by the district court’s failure to offer him the
opportunity to speak, and that his sentence is unreasonable.
The Government concedes that the district court committed
reversible error in failing to allow allocution. This court has
held that a district court commits plain error if it does not
afford the defendant an opportunity to allocute at a
resentencing hearing. United States v. Muhammad, 478 F.3d 247,
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250 (4th Cir. 2007). There is, however, no per se rule of
reversal when the district court denies a defendant’s right to
allocute under Fed. R. Crim. P. 32(i)(4)(A)(ii). Muhammad, 478
F.3d at 249. Instead, the court “should examine each case to
determine whether the error was prejudicial.” Id. (quoting
United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994)).
In Muhammad, the court applied plain error review
because Muhammad failed to object to the district court’s
failure to allow him to allocute. Id. at 249. In this case,
however, counsel specifically objected to the lack of an
opportunity to allocute, and cited Rule 32. Therefore, the
Government has the burden of demonstrating that any error was
harmless, which requires a showing that the court’s error did
not affect Fancher’s sentence. United States v. White, 405 F.3d
208, 223 (4th Cir. 2005). The Government does not attempt to
carry its burden, but “acknowledges that the District Court
committed reversible error when it neglected to afford the
defendant the opportunity to speak on his own behalf before
imposing sentence.”
Accordingly, we vacate Fancher’s sentence and remand
for resentencing. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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