United States v. Wayne Scott ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2784
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WAYNE SCOTT,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 548 — Harry D. Leinenweber, Judge.
ARGUED APRIL 4, 2018 — DECIDED AUGUST 21, 2018
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
BAUER, Circuit Judge. In 2010, Wayne Scott was sentenced
to 63 months of imprisonment and 36 months of supervised
release after entering into a written plea agreement for engag-
ing in two schemes to defraud investors and potential inves-
tors. After his release, Scott violated his supervised release
conditions several times. At the revocation hearing for one of
2 No. 17-2784
these violations, the district court found Scott violated one of
his probation conditions and sentenced him to an additional
36 months of supervised release. Scott argues on appeal that
the district court committed procedural errors at the revocation
hearing in failing to calculate or discuss the advisory Sentenc-
ing Guidelines range and in failing to afford him an opportu-
nity to allocute.
I. BACKGROUND
In 2009, Scott was charged with and pleaded guilty to
engaging in two schemes to defraud investors and potential
investors, in violation of 18 U.S.C. § 1341. One of the super-
vised release conditions the district court imposed at sentenc-
ing was that he could not incur new credit charges or open
additional lines of credit without the approval of the probation
officer. On January 17, 2017, the government filed a motion
alleging that Scott had violated this condition.
On July 6, 2017, the district court held a revocation hearing
and determined that Scott violated this probation condition.
When asked for its sentencing recommendation, the govern-
ment referenced a special report on a prior violation during the
same probation period that recommended five months in
custody and a new term of 36 months’ supervised release. The
district court declined to impose further custody due to Scott’s
regular restitution payments. The government then requested
that the court extend the term of supervised release. Defense
counsel answered, “we have no objection to extending the
period of mandatory supervised release.” Thus, the district
court agreed to the 36 months of supervised release.
At the end of the hearing, the district court reiterated to
Scott that he needed to continue making his restitution
No. 17-2784 3
payments in order to avoid future appearances in court. Scott
replied, “Your Honor, I just want to add for the record,” and
defense counsel interjected stating, “No, you’re going to talk to
me first.” Scott agreed, and the two conferred. Defense counsel
then returned and said, “Pardon me, Judge. Thank you for the
opportunity to talk. I don’t believe he has anything else he
wants to tell the Court.” The district court accepted this
statement and the hearing ended.
Before the next status hearing on July 19, 2017, Scott
retained new counsel. At this hearing, the district court
addressed the issue that the extension of Scott’s supervised
release for three years required the imposition of a period of
custody. The district court proposed a sentence of one day of
custody, considered time served, followed by three years of
supervised release. The district court asked if there were any
objections. Defense counsel did not explicitly object, and stated,
“I’m not looking to reopen Mr. Scott’s sentencing hearing.”
Defense counsel then advocated for a shorter supervised
release period, but made no inquiry or argument concerning
the applicable advisory Sentencing Guidelines calculation or
Scott’s lack of allocution at the original revocation hearing.
On August 1, 2017, Scott filed a motion to reconsider,
challenging the district court’s finding of a violation of super-
vised release and reiterating the sentencing arguments made
on July 19. Additionally, he asserted for the first time that he
did not agree with his prior counsel’s decision not to object to
the new sentence of supervised release, that there was no
mention of a specific Sentencing Guidelines calculation at his
revocation hearing, that the potential penalties were not made
clear to him, and that he was unable to present mitigation at
the revocation hearing.
4 No. 17-2784
The district court entered judgment on August 16, 2017. On
August 27, Scott filed an amended motion for reconsideration
and noticed this motion for hearing two days later. On that
same day, the district court denied the motion for reconsidera-
tion. Scott timely appealed.
II. ANALYSIS
On appeal, Scott argues the district court erred in failing to
calculate and consider the Sentencing Guidelines range for his
violation of the conditions of supervised release and that the
district court failed to comply with Federal Rule of Criminal
Procedure 32.1(c)(1), which affords defendants the right to
allocute. We find that Scott waived both issues.
“Waiver occurs when a criminal defendant intentionally
relinquishes a known right.” United States v. Brodie, 507 F.3d
527, 530 (7th Cir. 2007); United States v. Haddad, 462 F.3d 783,
793 (7th Cir. 2006). Waiver effectively “extinguishes any error
and precludes appellate review.” United States v. Armour, 804
F.3d 859, 865 (7th Cir. 2015) (quoting Brodie, 507 F.3d at 530).
Conversely, “[f]orfeiture occurs when a defendant negligently
fails to assert a right in a timely fashion,” which triggers plain
error review. Brodie, 507 F.3d at 530.
“The touchstone of waiver is a knowing and intentional
decision.” United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th
Cir. 2005). A defendant’s decision to present one argument and
not another is a matter of strategy, and the arguments he
decides not to present are waived. Id. Similarly, “[a] defendant
who does not object to his sentence when asked whether he has
any objections may communicate an intention to relinquish
any arguments related to his” sentencing conditions. Brodie,
507 F.3d at 531.
No. 17-2784 5
As a preliminary matter, it is important to note that
revocation hearings are more summary proceedings subject to
lesser standards than sentencing hearings. United States v. Lee,
795 F.3d 682, 685 (7th Cir. 2015) (“[T]he full panoply of rights
that the Constitution guarantees to criminal defendants does
not extend to them” in revocation hearings) (citations and
quotation marks omitted).
At the revocation hearing on July 6, 2017, the district court
discussed with the parties a sentence for Scott’s violation. After
the district court rejected additional incarceration, the govern-
ment recommended 36 months of supervised release. Defense
counsel responded saying, “we have no objection to extending
the period of mandatory supervised release.”
At the end of this hearing, the district court allowed Scott
to speak for the record. However, his attorney cut him off and
requested a moment to speak with Scott privately. After
speaking privately, counsel confirmed with the court that Scott
had nothing further to say, effectively relinquishing his right
to allocute. It is not the court’s job to interfere with an attorney-
client relationship. Rather, the district court must be able to
rely on the representations given by counsel. Furthermore,
Scott previously had a sentencing hearing where the district
court afforded him the opportunity to allocute. This allows us
to conclude that he was familiar with his right to allocute.
Scott had a new attorney at the resentencing hearing on
July 19, 2017. At this hearing, defense counsel specifically
stated, “I’m not looking to reopen Mr. Scott’s sentencing
hearing.” As defense counsel conceded at oral argument, he
declined review of the 36 months of supervised release as well
as the asserted failure to allow allocution. Instead, he focused
6 No. 17-2784
this time before the court on advocating for a shorter probation
period. This would have been the appropriate time for counsel
to assert any objections to either of these issues. However, by
failing to raise these objections, he affirmatively waived the
right to challenge either of these issues. See United States v.
Gabriel, 831 F.3d 811, 814 (7th Cir. 2016). Therefore, our review
is precluded.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
findings.
No. 17-2784 7
WOOD, Chief Judge, dissenting. This case began as a routine
proceeding to revoke defendant Wayne Scott’s supervised re-
lease because he bought a car without permission. But the
process went off the rails during his revocation hearing. The
district court never calculated a guidelines term for the un-
derlying violation. To add procedural insult to injury, his law-
yer gratuitously told the court that “we” have no objection to
extending the term of his supervision, Scott tried to speak up
and was silenced by the lawyer, and then the lawyer—not
Scott—told the court that Scott had nothing to say, and the
court made no further inquiries. With new counsel, Scott tried
to undo the harm that had been done, but the district court
decided that he was too late. On appeal, Scott again seeks a
fresh revocation proceeding at which his right to allocute is
respected and at which he can raise issues about the guide-
lines calculations for revocation. My colleagues have con-
cluded that Scott waived these issues. I cannot agree. I can
find no place in this record where Scott intentionally relin-
quished his right to either procedural guarantee, and so I
would remand Scott’s case to the district court for a fresh con-
sideration of his sentence on revocation.
I
Some additional detail is useful in order to understand
how Scott wound up where he is. Upon his conviction on
charges of conducting two investment-fraud schemes, Scott
was sentenced to 63 months’ imprisonment and 36 months of
supervised release. He completed his time in prison and on
January 30, 2014, he began his term of supervised release. A
year and a half later, the Probation Office filed a written re-
quest asking the district court to hold a revocation hearing. It
listed five conditions that Scott allegedly had violated: state
8 No. 17-2784
charges of domestic battery; failure to notify Probation about
the state arrest; failure to make some restitution payments;
failure to notify Probation about a change of address; and fail-
ure to notify Probation that he was questioned by police. It
also calculated the advisory revocation sentences for each vi-
olation, using Chapter 7 of the guidelines. In July 2015, Pro-
bation filed a supplemental report, charging two new viola-
tions (a conviction for misdemeanor domestic violence and an
arrest for assault). In the end, however, the district court never
considered these charges.
Another year and a half later, on January 17, 2017, the gov-
ernment filed another document, which it called a “Supple-
mental Motion,” again asking to revoke Scott’s supervised re-
lease. This time, it relied on an entirely new violation: that
Scott had violated the condition that forbade him from incur-
ring new credit charges or opening additional lines of credit
without Probation’s permission. It based this accusation on
Scott’s alleged 2014 purchase of a 2009 Jaguar through a nom-
inee. Neither the Supplemental Motion nor anything else ever
provided any guidelines calculation for the credit violation.
After hearing testimony concerning the alleged car pur-
chase, the district court determined that Scott violated the
terms of his supervised release by taking out the loan. It held
a revocation hearing on July 6, 2017. (By that time, Scott’s term
of supervised release would otherwise have elapsed.) During
that hearing, the court asked the prosecutor for her recom-
mended sentence. She responded as follows:
Your Honor, this case originally began with [sic] su-
pervised release request … in connection with the de-
fendant’s arrest and then re-arrest in connection with a
domestic battery situation. And the request at that time
No. 17-2784 9
was that his supervised release be revoked, he be sen-
tenced to a term of custody of five months, and then a
new term of supervised release of 36 months should be
imposed.
That would be the government’s continuing recom-
mendation. This is a separate violation from the one
originally reported, but I think the Court has a sense
from what has been described that—well, with respect
to the violation, the defendant violated the term of su-
pervised release.
The court then asked a series of questions about Scott such as
whether he was single, whether he had a son, and how old his
son was. Although they were directed to his attorney, Scott
himself offered brief responses to these questions. The court
never asked Scott if he wished to provide additional infor-
mation that he thought pertinent to his sentence.
At that point, the district court indicated that it was
amenable to extending Scott’s term of supervised release. Its
comment set off an exchange with the prosecutor,
Karina Salovaara; the probation officer; and Scott’s attorney,
Raymond Wigell, which proceeded as follows:
Ms. Salovaara: … [W]e would ask at the very least that
the period of supervised release be extended.
The Court: I think, yes, you should do that because I
want him to continue making restitution payments.
Mr. Wigell: And we have no objection to extending the
period of mandatory supervised release, Judge.
The Court: When does it end?
10 No. 17-2784
Ms. Salovaara: Well, again, technically it ended ear-
lier—
The Probation Officer: It actually ended in January, your
Honor.
The Court: All right. So then we’ll extend it now, what
would you suggest; a year?
The Probation Officer: The initial probation officer re-
quested that his supervised release be extended 36
months.
Ms. Salovaara: Three years.
The Probation Officer: Three years.
Ms. Salovaara: And that the five months of custody—
The Court: 36 months?
Ms. Salovaara: Yes
The Court: All right. Let’s make it 36 months then. …
As the transcript shows, Wigell never agreed on Scott’s behalf
to a supervised release term of 36 months; in fact, he did not
condone any particular period. He merely stated that, as a
general matter, he did not object to extending Scott’s super-
vised release. The government recommended a 36-month
term only after Scott’s counsel had agreed to some extension.
That was not the end of the July 6 proceedings, however.
A few minutes later, Scott interjected “Your Honor, I just want
to add for the record—… .” But before he could finish talking,
Wigell interrupted him and said, “No, you’re going to talk to
me first.” They conferred, after which Wigell said, “Pardon
me, Judge. Thank you for the opportunity to talk. I don’t be-
lieve [Scott] has anything else he wants to tell the Court.” The
No. 17-2784 11
judge did not confirm this with Scott. Instead, he said only
“All right. That’s fine.”
Before judgment was entered, the court scheduled one
more status hearing. Before it took place, Scott obtained new
counsel. The second hearing took place on July 19, 2017, with
new counsel. There was some discussion about the need for
at least a minimal period of incarceration and restitution. Im-
portantly for present purposes, Scott’s new lawyer told the
court that while he was “not looking to reopen Mr. Scott’s sen-
tencing hearing,” he was asking for a shorter term of super-
vised release for Scott. The court rejected that request. Once
again, Scott did not have the opportunity to speak.
Scott tried one more time in the district court to make his
own arguments: before judgment was entered, he filed a mo-
tion to reconsider on August 1, 2017, in which he raised the
arguments he is trying to press here. He asserted that he did
not agree with Wigell’s decision not to object to the new term
of supervised release, and he complained that the court had
failed to consult the advisory guidelines before deciding on
the revocation sentence. The court did not respond to this mo-
tion; it entered judgment on August 16, giving Scott one day’s
incarceration and 36 months of supervised release. After an-
other motion to reconsider, which the court denied on August
29, this appeal followed.
II
My colleagues find waiver in the course of events I have
recounted here, but with respect, I cannot agree with them.
As the majority acknowledges, waiver occurs only as the re-
sult of an “intentional relinquishment or abandonment of a
known right.” United States v. Olano, 507 U.S. 725, 733 (1993)
12 No. 17-2784
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). “[W]aiver
requires a calculated choice to stay silent on a particular mat-
ter.” United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.
2010). In contrast, forfeiture occurs if “a defendant merely
‘fails to raise an argument due to accident or neglect.’” United
States v. Oliver, 873 F.3d 601, 607 (7th Cir. 2017) (quoting
United States v. Seals, 813 F.3d 1038, 1045 (7th Cir. 2016)). In
demarcating the line between the two, we construe the
boundary in favor of the defendant. United States v. Barnes,
883 F.3d 955, 957 (7th Cir. 2018). “Where the government can-
not proffer any strategic justification for a [defendant’s] deci-
sion, we can assume forfeiture.” Oliver, 873 F.3d at 607 (quot-
ing Anderson, 604 F.3d at 1001–02 (alteration in original)).
The majority finds waiver at four separate points in the
proceedings: (1) when Wigell announced on July 6 that he did
not object to extending Scott’s supervised release; (2) when
Scott tried to speak up and was silenced by his attorney;
(3) when new counsel said on July 19 that he was not trying
to reopen the “sentencing hearing”; and (4) when Scott was
silent about his objections at the July 19 hearing. The first
three of these instances do not support a finding of either
waiver or forfeiture; the fourth comes closer to forfeiture but
fails because Scott raised his objections in the motion to recon-
sider, which was filed before judgment was entered, while the
district court was still fully empowered to act.
Wigell’s comment that he was not objecting in general to
an extension of supervised release said nothing at all about
the term of that release. It could have been one extra month;
it could have been 36 extra months. Wigell cannot have
waived the right on Scott’s behalf to object to a length un-
known to him at the time. True, Scott is now objecting to the
No. 17-2784 13
statement as a whole, but that does not mean that he is fore-
closed from arguing that the extension was much too long.
Scott did nothing to waive his right to allocute either. Fed-
eral Rule of Criminal Procedure 32.1(c)(1) specifically confers
such a right on a defendant who is facing the modification of
the term of his supervised release. It states that “[b]efore mod-
ifying the conditions of probation or supervised release, the
court must hold a hearing, at which the person has the right to
counsel and an opportunity to make a statement and present any
information in mitigation.” (Emphasis added.) As the ex-
change reproduced above demonstrates, Scott may have been
attempting to exercise this right, but his lawyer prevented
him from speaking and the court never gave him another op-
portunity.
We have interpreted Rule 32.1 as imposing obligations on
a district court conducting a hearing on the revocation of su-
pervised release that are comparable to those imposed by
Rule 32 at the time of initial sentencing. United States v. Pitre,
504 F.3d 657, 662 (7th Cir. 2007). Among these obligations is a
requirement that the district court advise the defendant per-
sonally of his right to address the court before it imposes a sen-
tence of supervised release. Id.; United States v. Noel, 581 F.3d
490, 502 (7th Cir. 2009) (applying Rule 32); United States v.
O’Hallaren, 505 F.3d 633, 635–36 (7th Cir. 2007). The invitation
to speak must be meaningful, and “compliance by a judge in
form only” is insufficient. United States v. Clemmons, 48 F.3d
1020, 1025 (7th Cir. 1995) (addressing Rule 32), overruled on
other grounds by United States v. Allender, 62 F.3d 909, 917
(1995); see also O’Hallaren, 505 F.3d at 635–36 (asking, “Any-
body else?” inadequate on revocation of supervised release);
Pitre, 504 F.3d at 662 (same for two closed-ended questions).
14 No. 17-2784
The duty to afford an opportunity to allocute rests on the
judge, not on the defendant. The fact that Scott did not over-
ride his attorney on July 6 can therefore not be held against
him. And in fact, he asked to be heard personally through the
motion that he filed on August 1, just a few weeks after the
revocation hearing and before the court entered judgment.
His case is therefore not a good candidate for a finding of for-
feiture, much less waiver.
Turning to the third source of waiver on which the major-
ity relies—the comments of Scott’s new lawyer on July 19 to
the effect that he (the lawyer) was not seeking to reopen the
sentencing—that too in context is far from waiver. The lawyer
immediately presented arguments for a shorter term of super-
vised release, stressing Scott’s disappointment with the three-
year term and his desire to regain “the freedom to live his life
again without being encumbered.” The only way to make any
sense of this is as a statement from the second lawyer
(whether or not authorized by Scott) to the effect that the only
question that remained was how long the new term of super-
vision would be.
The final argument for waiver appears to arise out of the
July 19 hearing. That, the majority suggests, “would have
been the appropriate time for counsel to assert any objec-
tions,” and, “by failing to raise these objections, [Scott] affirm-
atively waived the right to challenge” them. Ante at 6 (citing
United States v. Gabriel, 831 F.3d 811, 814 (7th Cir. 2016)). But
this is the language of forfeiture. A total failure to raise a
point, when there could have been no strategic reason for
Scott (or his lawyer) to drop it, is a forfeiture. So viewed, we
would analyze Scott’s claims under the plain-error standard;
we would not refuse to reach them.
No. 17-2784 15
III
If these errors could not have affected the outcome, then
perhaps the majority’s decision should stand. But, as I briefly
explain, they did. Although Scott may in reality have pre-
served some or all of his points for ordinary review, I will as-
sume for the sake of argument that plain error applies here.
United States v. Lee, 795 F.3d 682, 685 (7th Cir. 2015) (applying
plain error review to forfeited claims arising from a revoca-
tion hearing). To prevail, Scott needed to show that (a) the
district court erred, (b) that error was “clear or obvious,”
(c) the error “affected [his] substantial rights,” and (d) the “er-
ror ‘seriously affect[s] the fairness, integrity or public reputa-
tion of judicial proceedings.’” Puckett v. United States, 556 U.S.
129, 135 (2009) (quoting Olano, 507 U.S. at 736) (alteration in
original).
A
I address first Scott’s complaint that the district court
failed properly to consult the guidelines when it settled on the
post-revocation sentence. The district court must begin the
process of revoking supervised release by calculating and
considering the recommended guidelines range under the
Chapter 7 Policy Statements. United States v. Downs, 784 F.3d
1180, 1181 (7th Cir. 2015); United States v. Snyder, 635 F.3d 956,
959 (7th Cir. 2011). At initial sentencing, a court sometimes
may “expressly reference[] the PSR” and “adopt[] the PSR’s
Guidelines calculations,” rather than engage in the analysis
anew. Oliver, 873 F.3d at 610. There is no reason to take a more
rigid approach for revocation proceedings, and so we can as-
sume that the same rule applies to them. In any case, there
16 No. 17-2784
must be some indication that the district court actually con-
sidered the appropriate guidelines range. Id.; United States v.
Gibbs, 578 F.3d 694, 695 (7th Cir. 2009).
Here, the court did not follow that rule. It never calculated
a guidelines term nor, despite the government’s assertions,
did it adopt any calculation from the Probation Office. The
reason is simple: no such calculation existed. This revocation
was about the car. The reports from 2015, which analyzed en-
tirely unrelated violations of supervised release, contained
limited guidelines calculations, but those violations were not
acted upon. In 2017, a new violation—the car purchase—led
to the revocation of supervised release. The Probation Office
did not prepare a report for that violation, nor did the govern-
ment’s “Supplemental Motion” make any recommendation
based on the guidelines.
At the sentencing hearing, the only references to the 2015
report were made by the government and the probation of-
ficer—not the district court or Scott. Even then, the govern-
ment never mentioned the range calculated in the 2015 re-
ports, nor did it opine (much less justify the position) that the
previously calculated range would apply to Scott’s 2017 vio-
lation. The government merely alluded to its earlier request,
despite acknowledging that it was for a “separate violation.”
It never clearly linked its new revocation request to a guide-
line calculation for the underlying violation. The probation of-
ficer also noted that his predecessor had requested three years
of supervised release, again without any mention of the
guidelines.
That error requires reversal. The guidelines play a central
role in sentencing and exert a powerful anchoring effect;
therefore, we must presume that failure to calculate Scott’s
No. 17-2784 17
guidelines affected his sentence. Downs, 784 F.3d at 1181–82;
see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016). Because the district court is itself responsible for
guidelines calculations and its errors are easily corrected on
remand, the Supreme Court recently noted that a guidelines
miscalculation creates a “risk of unnecessary deprivation of
liberty [that] particularly undermines the fairness, integrity,
or public reputation of judicial proceedings.” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1908 (2018). Thus, except in
the extraordinary case, miscalculation requires reversal under
plain error review. Id. at 1911. The lack of any reference point
gave an ad hoc tone to Scott’s proceedings. The district judge
initially seemed inclined to impose one year of supervised re-
lease. But after the probation officer responded that his pre-
decessor had requested 36 months (without specifying that
this had been for different violations), and the prosecutor
agreed, the court responded, “All right. Let’s make it
36 months then.” Sentencing should not be an off-the-cuff af-
fair, and it was plain error to treat it that way.
B
Second, I take a brief look at the court’s failure to allow
Scott to speak at his revocation hearing. FED. R. CRIM. P.
32.1(b)(2)(E). We consistently have held that failure to offer
the defendant a chance to speak violates Rule 32.1 and re-
quires reversal. (As the government acknowledged, the only
identifiable cases in which we appear to have ruled otherwise
are United States v. DeBerry, 376 F. App’x 612, 614 (7th Cir.
2010), and Pitre, 504 F.3d at 663.) Strictly requiring the district
court to issue a separate warning at the revocation hearing
makes sense (and is required by the rule) because a defendant
18 No. 17-2784
might not otherwise know of his rights—especially at a revo-
cation hearing where, as the majority points out, an offender
has fewer rights.
Contrary to the majority’s suggestion, nothing in the attor-
ney-client relationship gets in the way of compliance with
Rule 32.1. Ante at 5. To the contrary, the rule simply prescribes
a particular kind of communication the judge must personally
have with the defendant. Rule 32.1 safeguards a defendant’s
“personal right.” Green v. United States, 365 U.S. 301, 305
(1961) (plurality); United States v. Luepke, 495 F.3d 443, 449 (7th
Cir. 2007); Pitre, 504 F.3d at 661–62 (describing Rule as “grant-
ing criminal defendants a personal right to allocution and as
imposing on trial judges a duty personally to invite defend-
ants to speak before sentencing”). It represents one of the few
times in a proceeding when the defendant has a personal right
to make a decision; to safeguard that right, the court must
speak to the client directly. It allows the court to hear from the
client, unfiltered by his attorney. Green, 365 U.S. at 304 (“The
most persuasive counsel may not be able to speak for a de-
fendant as the defendant might, with halting eloquence,
speak for himself.”).
It is not even clear that the exchange we are talking about
is best read as bearing on the right to allocute. Scott stated, “I
just want to add for the record.” His attorney interrupted and
then said that Scott no longer wished to speak. All this oc-
curred after the court had settled on the 36-month term of su-
pervised release. None of us knows what Scott had planned
to add. And the court, having already settled on its sentence,
might not have taken anything he said into account. Luepke,
495 F.3d at 448–49 (allocution is meant to occur before the dis-
trict court settles on a sentence).
No. 17-2784 19
On the merits, it is once again plain that the district court
erred. It never invited Scott to explain why he deserved more
lenient treatment. Prior to settling on three years of super-
vised release, the only meaningful inquiries directed to Scott
consisted of a series of closed-ended questions regarding his
family and employment situation. While the district court
may have gleaned some relevant information from the ex-
change, it never invited Scott to share information that Scott
thought pertinent to the revocation of supervised release. A
judge-controlled Q and A is not a meaningful invitation to
share what the defendant thinks important as required by Rule
32.1. Pitre, 504 F.3d at 662.
Scott’s aborted attempt to speak at the end of the July 6
hearing did not save the day. The judge never invited him to
offer a statement in mitigation. Maybe Scott was starting to
offer one on his own initiative. Or perhaps he was planning
to talk about something else; who knows? As I already have
noted, the timing was wrong in any event, because by then
the sentence had been set.
The district court’s violation of Rule 32.1 requires reversal
under the plain-error standard. Failure to invite allocution
prior to revocation constitutes a clear violation of the require-
ments imposed by Rule 32.1. Id. at 661–62; see also United
States v. Daniels, 760 F.3d 920, 925 (9th Cir. 2014). Such an error
is prejudicial, for plain-error purposes. We “presume[s] prej-
udice when there is any possibility that the defendant would
have received a lesser sentence had the district court allowed
him to speak before imposing a sentence,” and we “cannot
speculate as to the persuasive ability of anything [the defend-
ant] may have said in his statement.” O’Hallaren, 505 F.3d at
636. Here, three additional years of supervised release was the
20 No. 17-2784
maximum extension allowed by law—perhaps even a day too
long, given the judge’s decision to impose one day’s incarcer-
ation and 36 months’ supervised release. See 18 U.S.C.
§ 3583(h) (combined term of imprisonment and supervised
released imposed after revocation cannot exceed term of su-
pervised release authorized for the underlying conviction);
Id. § 3583(b)(2) (authorizing three years of supervised release
for a class C felony); Id. §§ 1341, 3559(a)(3) (designating Scott’s
underlying conviction a class C felony); Id. § 3583(i) (requiring
terms of supervised release to run concurrently).
Finally, failure to afford a defendant his allocution rights
casts the integrity and fairness of sentencing into disrepute
and requires resentencing “[a]bsent some rare indication
from the face of the record that the denial of this right did not
implicate these core values.” O’Hallaren, 505 F.3d at 636 (quot-
ing Luepke, 495 F.3d at 452); Pitre, 504 F.3d at 663 (error did not
affect fairness because the failure to invite a statement in-
volved mechanically enforcing the terms of a prior informed
“bargain” with the district court); DeBerry, 376 F. App’x at 614
(the court “technically” failed to address the defendant per-
sonally but the defendant understood the invitation and took
the opportunity to address the court). Despite his efforts, ulti-
mately Scott had no opportunity to convince the judge to
show compassion.
My colleagues point out that offenders are not afforded
the same rights at revocation hearings as in their initial crim-
inal proceedings. Ante at 5 (citing Lee, 795 F.3d at 685). But
“reduced rights are not the same as no rights at all,” Lee, 795
F.3d at 685, and my argument rests exclusively on the rule
governing revocation hearings, not initial sentences. Federal
Rule of Criminal Procedure 32.1 largely codifies the rights the
No. 17-2784 21
Supreme Court deems necessary to a fair revocation proceed-
ing. Id. at 686 (citing United States v. LeBlanc, 175 F.3d 511, 515
(7th Cir. 1999)).
IV
The district court violated Scott’s rights at his revocation
hearing. At worst, Scott forfeited the arguments he now
wishes to present. If so, I would find that those errors were
plain; if he is entitled to broader review, I would find legal
error in the court’s failure to follow Rule 32.1. I would thus
remand this case for resentencing, and I therefore respectfully
dissent.