United States v. O'Hallaren, Bernard ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1559
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERNARD J. O’HALLAREN, III,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 43—George W. Lindberg, Judge.
____________
ARGUED SEPTEMBER 14, 2007—DECIDED OCTOBER 2, 2007
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Before BAUER, EVANS, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Appellant O’Hallaren appeals
from a final order and judgment from the United States
District Court for the Northern District of Illinois,
Eastern Division, that revoked O’Hallaren’s supervised
release and sentenced him to 28 months in a federal
prison. We vacate the district court’s sentence and
remand for a new sentencing proceeding.
I. Background
Appellant O’Hallaren was released from the Bureau of
Prisons on July 24, 2006 after serving time for interstate
2 No. 07-1559
transportation of stolen property. As part of that original
sentence, the district court ordered O’Hallaren to serve
36 months of supervised release after his detention in
the federal prison. Terms of this supervised release
included that O’Hallaren: (1) must not possess any con-
trolled substance not prescribed to him by a physician;
(2) must report in person to the Probation Office within
72 hours of being released from custody; (3) must partici-
pate in a program of drug aftercare as directed by the
Probation Office; and (4) must subject himself to drug
testing by the Probation Office.
O’Hallaren did not comply with these terms of super-
vised release for long. On his first and only meeting with
a probation officer, O’Hallaren submitted to the required
drug test and tested positive for cocaine. By September 5,
2006, the Probation Office filed a Special Report request-
ing a hearing for a rule to show cause why O’Hallaren’s
supervised release should not be revoked. In the Special
Report, the Probation Office cited five grounds for revoca-
tion: (1) failure to report to the probation officer and
submit a truthful written report; (2) failure to participate
in a drug aftercare program as directed; (3) unlawful use
of cocaine; (4) failure to submit to mandatory drug test-
ing; and (5) failure to follow the instructions of the proba-
tion officer.
Judge Lindberg scheduled multiple hearings on the
supervised release revocation, but a substantive hearing
on the issue did not occur until February 7, 2007. At this
hearing, O’Hallaren’s counsel suggested an alternative
sentencing proposal that involved a voluntary drug
treatment program with a success rate comparable
to most other drug treatment programs. The government
stated that this would be acceptable as long as it was
followed by a 120-day outpatient program where
O’Hallaren would be required to live at the Salvation
Army. However, the Probation Office maintained the
No. 07-1559 3
position that O’Hallaren should be detained in a federal
prison because he continued to use drugs, past treatment
programs have not worked for him, he continued to
disobey the law with fraudulent behavior, and in light
of all of these issues, he posed a risk to the public. The
hearing was continued again to another date when
O’Hallaren was able to have a witness testify to the
validity and appropriateness of the suggested drug treat-
ment program in lieu of confinement. After O’Hallaren,
the government, and the Probation Office had spoken,
Judge Lindberg scheduled the hearing to reconvene for
his decision and sentencing on February 20, 2007.
At the February 20, 2007 hearing, Judge Lindberg
reviewed the history of the case and the allegations
against O’Hallaren and acknowledged that O’Hallaren
had admitted to all five violations of his supervised re-
lease as charged.1 Immediately after reciting the exten-
sive criminal record of O’Hallaren and the sentencing
recommendations of the parties and the Probation Office,
Judge Lindberg revoked O’Hallaren’s supervised release
and sentenced O’Hallaren to two 14-month sentences to
be served consecutively with no supervised release to
follow. At no point before the revocation of O’Hallaren’s
supervised release or the imposition of his 28-month
prison sentence was O’Hallaren or his counsel offered an
opportunity to address the court. After the sentence was
pronounced, O’Hallaren’s counsel objected to the con-
secutive feature of the sentence. In response, Judge
Lindberg said “All right, so noted. Anybody else?” Other
1
O’Hallaren’s counsel at oral argument pointed out that the
violations were admitted only in the context and for the pur-
pose of reaching an agreement with the government for the
alternative drug treatment program, and not with the anticipa-
tion of those being used against O’Hallaren beyond the agree-
ment context.
4 No. 07-1559
than this belated request, no opportunity to address the
court was presented during this hearing.
II. Discussion
O’Hallaren first asserts that the district court denied
him his right to allocution when it failed to allow him or
his attorney an opportunity to address the court prior
to revoking his supervised release and imposing a new
sentence. See Fed. R. Crim. P. 32.1(b)(2)(E).
A defendant’s right to allocution at a supervised release
revocation sentencing is codified at Federal Rule of
Criminal Procedure 32.1(b)(2)(E), which states that a
defendant is entitled to “an opportunity to make a state-
ment and present any information in mitigation.” Before
imposing a term of reimprisonment following the revoca-
tion of supervised release, Rule 32.1 requires that a
district court ask the defendant if he or she would
like to make a statement for the court to consider in de-
termining his or her sentence. United States v. Pitre,
No. 06-3935 at *6 (7th Cir., argued July 10, 2007)2; see
Green v. United States, 365 U.S. 301, 304 (1961) (Rule 32
requires explicit invitation to defendant to speak prior
to imposing a sentence); United States v. Luepke, No.
06-3285, 2007 WL 2091227, slip op. at 11-12 (7th Cir.
Jul. 24, 2007) (same).
There is little question as to whether O’Hallaren had
an opportunity to address the district court prior to
the imposition of his sentence. At no point during the
February 20, 2007 revocation and sentencing hearing did
2
In this case, we determined that Rule 32 and Rule 32.1 require
the same formalities in a case currently pending in the Court.
This opinion adopts Judge Ripple’s well-reasoned opinion on that
issue.
No. 07-1559 5
Judge Lindberg make any invitation to the O’Hallaren or
his counsel to make a statement in mitigation. Judge
Lindberg’s inquiry of “Anybody else?” following defense
counsel’s objection to the consecutive nature of the sen-
tence was imposed failed to satisfy O’Hallaren’s right to
allocution under Rule 32.1(b)(2)(E) both in timing and
in form. Luepke, slip op. at 9, 12-13 (quoting United States
v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)); see United
States v. Clemmons, 48 F.3d 1020, 1025 (7th Cir. 1995)
(“Denial of the right to allocution or compliance by a
judge in form only is ground for the vacation or reversal
of a sentence.”), overruled on other grounds by United
States v. Allender, 62 F.3d 909 (7th Cir. 1995); see also
Barnes, 948 F.2d at 331 (defendant must be allowed to
make a statement before the judge imposes a sentence).
As to whether this error affected O’Hallaren’s substan-
tial rights, we presume prejudice 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. Luepke, slip op. at 15-16; see
United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.
2004); see also United States v. Adams, 252 F.3d 276, 285-
86, 289 (3d Cir. 2001). As this Court discussed at length
in Luepke, we cannot speculate as to the persuasive
ability of anything O’Hallaren may have said in his state-
ment to the court.
For the sake of argument only, we consider what
O’Hallaren may have said to the district court judge if
he had the opportunity. O’Hallaren asserts that he
would have made a statement that included the follow-
ing sympathetic points: that O’Hallaren contacted his
probation officer to request help because he was slipping
back into his old drug habits; that O’Hallaren independ-
ently identified the proposed alternative drug treatment
program before his supervised release was revoked; and,
6 No. 07-1559
that the government agreed with O’Hallaren’s counsel
that O’Hallaren should be given one last chance before
being re-incarcerated for his non-violent crimes. Even if
we were to speculate as to O’Hallaren’s persuasive abili-
ties, we certainly could not say with any assurance that
the denial of his right to allocution did not affect
O’Hallaren’s sentence.
When there has been an error at the sentencing phase,
we reverse if the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997); United
States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007). Along
those lines, remand is generally required when a defen-
dant has been denied the right to allocution. Luepke, slip
op. at 16-17; Barnes, 948 F.2d at 328 (adherence to the
right to allocution maximizes the perceived equity of the
process). “Absent some rare indication from the face of
the record that the denial of this right did not implicate
these core values in our sentencing process, resentencing
is the appropriate judicial response.” See Luepke, slip op.
at 16-17. We see no such circumstances here, therefore
we exercise our discretion to remand the case for a
new sentencing proceeding to provide O’Hallaren the
rights accorded him under Rule 32.1(b)(2)(E).
Because the sentence imposed by Judge Lindberg is
vacated, we need not discuss the reasonableness of that
sentence.
III. Conclusion
For the reasons stated herein, the district court’s
judgment is vacated and this case is remanded to the
district court for resentencing. Circuit Rule 36 shall
apply on remand.
The mandate shall issue forthwith.
No. 07-1559 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-2-07