United States v. Eugene Grady, Jr. ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4310
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EUGENE TELPHIA GRADY, JR., a/k/a Taeo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever, District Judge. (7:17−cr−00105−D−4)
Submitted: May 18, 2023 Decided: August 10, 2023
Before DIAZ, Chief Judge, RICHARDSON, Circuit Judge, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief
Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, Benjamin J. Higgins, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Eugene Grady, Jr. claims the district court cut off his allocution at his revocation
hearing, violating Federal Rule of Criminal Procedure 32.1(b)(2)(E). Because Grady
didn’t object at the hearing, we review for plain error. Puckett v. United States, 556 U.S.
129, 135 (2009). And while Grady’s allocution was abbreviated, whether the district court
erred is “subject to reasonable dispute,” so the error isn’t plain. Id. We therefore affirm
Grady’s revocation sentence.
I.
Grady, a participant in a Wilmington-based drug-trafficking scheme, pleaded guilty
to conspiracy to distribute and possess with intent to distribute cocaine. The district court
sentenced him to sixty months in prison followed by seventy-two months of supervised
release. Grady began supervised release in January 2022 subject to several mandatory
conditions, including refraining from committing another crime or unlawfully using a
controlled substance.
About three months later, Grady’s probation officer petitioned the court to revoke
his supervised release. The petition stated that when Grady was asked to give a urine
sample for drug testing, he used a “Whizzinator”—a prosthetic device containing a
synthetic urine pack—to provide a fake sample. J.A. 44. Grady “initially denied any
wrongdoing,” but ultimately admitted to using the Whizzinator and to using marijuana. Id.A second urine sample tested positive for marijuana.
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The probation officer amended the petition a few weeks later to add another
violation: Grady had been charged with sexual battery and injury to personal property.
At the revocation hearing, Grady admitted to using the Whizzinator but denied the
sexual-battery and injury-to-property incident. The government offered the testimony of
Heather Fierce, a social worker. Fierce was delivering goods to a client’s house when she
met Grady. Grady followed her into the client’s house and back to her car. When Fierce
got in her car, Grady reached in and forced the driver’s-side window down, fondled her
breasts, and began “licking and kissing on the right side of [her] face” until she managed
to drive away. J.A. 56.
Grady offered a different story. He testified that he wanted Fierce’s help getting a
stimulus check and asked for a hug as she was leaving. But he denied forcing down her
car window and touching and kissing her. The court believed Fierce, chastising Grady for
“perjuring himself” about his “incredibly offensive criminal behavior.” J.A. 69–70.
With both violations established, Grady’s revocation-sentence Guidelines range
was eight to fourteen months in prison. Grady’s counsel requested a sentence within the
range, noting that Grady had been attending classes, going to an addiction-treatment center,
and trying to get a driver’s license. The court then invited Grady to speak. The ensuing
exchange is the subject of this appeal:
THE COURT: Mr. Grady, anything else?
THE DEFENDANT: Sir, when I got on the stand, you said I didn’t
tell the truth.
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THE COURT: That’s correct. You did not. If you keep lying,
it’s not going to get better. So just watch what
you say.
THE DEFENDANT: Well, I’m sorry about if I made you mad, sir, but
--
THE COURT: It’s offensive for a person to commit perjury.
It’s offensive.
THE DEFENDANT: I don’t do stuff like that, so I’m not guilty
of it.
THE COURT: Well, you’re lying.
Mr. Pugh.
J.A. 72. The court then heard from Pugh (the prosecutor), who asked for a sentence at the
high end of the guidelines range, and the probation officer. Grady’s counsel declined to
speak again, and the court didn’t ask Grady whether he had anything else to say.
The court sentenced Grady to thirty months in prison, varying upward by sixteen
months for Grady’s “egregious breaches of trust”—his Whizzinator deception, his assault
of Fierce, and his perjured testimony. J.A. 75–76.
This appeal followed.
II.
The only issue on appeal is whether the district court plainly erred by denying Grady
the right to allocute at the revocation hearing. A defendant at a revocation hearing is
entitled to “an opportunity to make a statement and present any information in mitigation.”
Fed. R. Crim. P. 32.1(b)(2)(E); see also id. advisory committee’s note to 2005 amendment
(extending Rule 32’s allocution right to revocation hearings).
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But the defendant’s “right to address the sentencing court” isn’t unlimited: His
allocution “may be limited both as to duration and as to content.” Ashe v. North Carolina,
586 F.2d 334, 336–37 (4th Cir. 1978). “He need be given no more than a reasonable time;
he need not be heard on irrelevancies or repetitions.” Id. at 337.
Because Grady didn’t object to the shortened allocution in the district court, we
review his claim for plain error, a “difficult” standard to satisfy. Puckett, 556 U.S. at 135.
The defendant must show that an error (1) occurred, (2) was plain, (3) affected his
substantial rights, and (4) “seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007)
(cleaned up). An error is plain if it’s “clear or obvious” under “the explicit language of a
statute or rule,” “controlling decisions from our circuit or the Supreme Court, or a
consensus among other circuits.” United States v. Nelson, 37 F.4th 962, 968–69 (4th Cir.
2022) (cleaned up). But an error isn’t plain if it’s “subject to reasonable dispute.” Puckett,
556 U.S. at 135.
In Grady’s view, the district court “got upset” with him when he mentioned the
perjury finding and “stopped him from speaking before [Grady] could get to his actual
allocution—his attempt to speak about his sentence.” Appellant’s Br. at 11–12. The
government responds that the record doesn’t indicate the court cut Grady off: The court
might have paused after saying, “Well, you’re lying,” and Grady might have remained
silent.
We find both readings of the transcript are plausible, so the error (if any) isn’t plain.
Maybe, as Grady argues, the court was “furious” with his behavior and prematurely cut off
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his allocution when he mentioned the perjury finding. Reply Br. at 1. But it’s also possible
that Grady was done with his allocution after he (again) denied responsibility for the
underlying violations. The transcript doesn’t indicate that the court interrupted Grady after
he said, “I don’t do stuff like that, so I’m not guilty of it.” J.A. 72; see also id. (using “--”
to indicate interruption). So the record doesn’t “make clear that [Grady] was interrupted
or that he had more mitigating information to express.” United States v. Mejia, 703 F.
App’x 339, 341 (5th Cir. 2017).
Even if Grady were interrupted, however, the court didn’t plainly err in cutting him
off. Our published precedent doesn’t clearly establish how much time and leeway a court
must give a defendant to fulfill Rule 32.1’s mandate. This isn’t a typical denied-allocution
case in which the court never allowed the defendant to speak. See, e.g., United States v.
Cole, 27 F.3d 996, 998 (4th Cir. 1994), Muhammad, 478 F.3d at 248. But nor is it exactly
like United States v. Atwell, 334 F. App’x 574 (4th Cir. 2009) (unpublished), which the
government cites. There, we found no error where a district court prevented a tax-evasion
defendant from arguing the government had no authority to make him pay income tax. Id.at 575–76; Tr. of Sentencing at 42, United States v. Atwell, No. 6:07-cr-393 (D.S.C. Jan.
5, 2009), ECF No. 187 (“Atwell Tr.”). But the district court also engaged the defendant at
length, explaining why that legal argument was irrelevant to his sentence and repeatedly
asking whether he had anything else to say. See Atwell Tr. at 42–51. In United States v.
Gomez-Jimenez, 625 F. App’x 602 (4th Cir. 2015), similarly, the court only intervened
“when it became apparent that [the defendant] wished to argue the issue of guilt or
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innocence, rather than in mitigation of his sentence.” Id. at 605. And even then, the court
permitted the defendant to “continue again with his allocution.” Id.
Grady’s case falls somewhere in the middle: The court invited him to speak, but
quickly cut off his allocution when he seemed inclined to relitigate his violations. On one
hand, that arguably doesn’t amount to “a reasonable time” for allocution. Ashe, 586 F.2d
at 337. But on the other, a defendant “need not be heard on irrelevancies or repetitions”
having nothing to do with mitigation. Id. Because whether Grady was allowed enough
time to speak is also “subject to reasonable dispute,” Puckett, 556 U.S. at 135, we decline
to find that the court plainly erred in limiting Grady’s allocution.
Grady also contends that the district court needed to tell him he was using his
allocution improperly and give him a chance to get back on course. Reply Br. at 6–7. But
neither the text of Rule 32.1 nor our case law mandates that the court attempt to redirect an
off-topic defendant toward more relevant statements.
We therefore affirm Grady’s revocation sentence. And we dispense with oral
argument because the facts and contentions are adequately presented in the materials before
this court and oral argument would not aid us in our decision.
AFFIRMED
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