United States v. John Daniels , 760 F.3d 920 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50331
Plaintiff-Appellee,
D.C. No.
v. 2:90-cr-00652-SVW-5
JOHN FITZGERALD DANIELS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
June 6, 2014—Pasadena, California
Filed July 23, 2014
Before: Ronald M. Gould and N.R. Smith, Circuit Judges,
and Edward R. Korman, Senior District Judge.*
Opinion by Judge Gould
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. DANIELS
SUMMARY**
Criminal Law
Vacating a sentence imposed after revocation of
supervised release and remanding for resentencing, the panel
held that Fed. R. Crim. P. 32.1(b)(2)(E) requires a court to
address a supervised releasee personally to ask if he wants to
speak before the court imposes a post-revocation sentence,
and that a district court that does not offer a supervised
releasee the chance to exercise that right commits plain error.
COUNSEL
K. Elizabeth Dahlstrom (argued), Deputy Federal Public
Defender, Santa Ana, California; Sean K. Kennedy, Federal
Public Defender; Brianna Fuller Mircheff, Deputy Federal
Public Defender, Los Angeles, California, for Defendant-
Appellant.
Mónica M. Ramírez (argued), Assistant United States
Attorney; André Birotte, Jr., United States Attorney; Robert
E. Dugdale, Assistant United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DANIELS 3
OPINION
GOULD, Circuit Judge:
Defendant-Appellant John Fitzgerald Daniels (“Daniels”)
appeals a 40-month sentence imposed by the district court
after revocation of his supervised release. Daniels contends
that the district court violated Federal Rule of Criminal
Procedure 32.1(b)(2)(E) when it did not affirmatively offer
him an opportunity to allocute before imposing its sentence.
We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, and we vacate and remand for
resentencing.
I
In February 1991, Daniels was sentenced to 20 years in
federal prison, to be followed by 10 years of supervised
release, after pleading guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841. He served
more than 17 years of his sentence before being released in
June 2008, when his term of supervised release began.1
In October 2012, Los Angeles police officers pulled over
a vehicle driven by Daniels. During a search, the officers
found marijuana, drug trafficking paraphernalia such as
plastic bags and digital scales, and other indicia of drug
trafficking including cell phones and cash. Daniels admitted
to the arresting officers that he was driving on a suspended
license and that he sold small quantities of marijuana “to
make extra cash from time to time.” Daniels faced charges
1
The conditions of Daniels’ supervised release were twice
modified—first in August 2010, and again in October 2012.
4 UNITED STATES V. DANIELS
for (1) being a convicted felon in possession of a firearm, see
Cal. Penal Code § 29900(a)(1); (2) transporting marijuana,
see Cal. Health & Safety Code § 11360(a); (3) possessing
marijuana for sale, see id. § 11359; and (4) driving a motor
vehicle when his driving privilege was suspended or revoked,
see Cal. Veh. Code § 14601.1(a).2
On February 4, 2013, the United States Probation Office
filed a petition in the district court to revoke Daniels’
supervised release based on allegations (1) through (4) above,
as well as his failure to complete a court-ordered residential
recovery program (“allegation (5)”). Daniels admitted
allegations (1), (2), and (5), but denied allegations (3) and (4).
At a July 15, 2013, evidentiary hearing, the district court
found that the Government had established allegations (3) and
(4) by clear and convincing evidence, and sentenced Daniels
to 40 months imprisonment and 20 months of supervised
release “under the same terms and conditions previously
imposed.” To justify its sentence, the district court reasoned
that it had considered factors other than the Sentencing
Guidelines, including “the defendant’s history, the need for
deterrence and, of course, respect for the law and the fact that
these crimes were committed while he was on supervised
release, and there was a series of crimes, and in order to justly
punish and uphold the respect for law.” Daniels did not ask
to speak before sentencing, and the district court did not
affirmatively tell him that he could speak. This appeal
followed.
2
Daniels pleaded guilty to charges (1) and (2) in California state court
on January 28, 2013.
UNITED STATES V. DANIELS 5
II
Daniels and the Government disagree about the
appropriate standard of review on Daniels’ claim that the
district court violated Rule 32.1. We generally review de
novo a district court’s compliance with the Federal Rules of
Criminal Procedure. See United States v. Pineda-Doval,
614 F.3d 1019, 1040 (9th Cir. 2010). There is no dispute,
however, that Daniels did not contemporaneously object to
the district court’s failure affirmatively to offer him a chance
to allocute before sentencing.
Where a defendant raises a particular objection to his
sentence for the first time on appeal, our review is usually for
plain error. See United States v. Gonzalez-Aparicio, 663 F.3d
419, 426 (9th Cir. 2011) (applying “the well-established plain
error standard of review with respect to alleged sentencing
errors not raised below”); United States v. Waknine, 543 F.3d
546, 551 (9th Cir. 2008) (reviewing for plain error a
defendant’s sentencing objections raised for the first time on
appeal). And yet, Daniels contends that our precedent
commands a harmless error analysis in denial-of-allocution
cases—even in revocation sentencing proceedings, and even
where the objection was not raised below. See United States
v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994) (“We review
the district court’s failure to afford appellant his right of
allocution for harmless error.”); see also United States v.
Gunning, 401 F.3d 1145, 1147 (9th Cir. 2005) (same). The
Government acknowledges that we have in the past reviewed
such cases for harmless error, but contends that intervening
Supreme Court decisions clarifying the broad scope of plain
error review require us now to apply that standard. See
United States v. Marcus, 560 U.S. 258 (2010); Puckett v.
United States, 556 U.S. 129 (2009).
6 UNITED STATES V. DANIELS
Because we conclude that Daniels would prevail under
either standard, we need not resolve that question here. See
United States v. Young, 470 U.S. 1, 16 n.14 (1985) (clarifying
that a plain error is, by definition, not harmless, and that there
can be no “harmless plain errors”). For purposes of this
appeal, then, we assume without deciding that plain error
review applies.
A plain error is one “that affects substantial rights.” Fed.
R. Crim. P. 52(b). To establish that the district court’s Rule
32.1 error was plain, Daniels must “show that the district
court made (1) an error (2) that was clear or obvious, (3) that
affected substantial rights, and (4) that seriously affected the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Castillo-Marin, 684 F.3d 914,
918 (9th Cir. 2012). Any error affected Daniels’ substantial
rights only if it was “prejudicial” and “affected the outcome
of the district court proceedings.” United States v. Olano,
507 U.S. 725, 734 (1993).
III
The Federal Rules of Criminal Procedure require a court,
before imposing its sentence, to “address the defendant
personally in order to permit the defendant to speak or present
any information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(ii). In United States v. Carper, we held that this
requirement applies with equal force “to sentencing after
revocation of supervised release when the district court
imposes a new sentence based on conduct that occurred
UNITED STATES V. DANIELS 7
during supervised release.” 24 F.3d at 1162.3 But Carper
was decided in 1994, when Rule 32.1 by its terms gave
supervised releasees facing revocation no more than “an
opportunity to appear and to present evidence in [their]
behalf.” Fed. R. Crim. P. 32.1(a)(2)(C) (1994). In 2005,
Rule 32.1 was amended to give supervised releasees “an
opportunity to make a statement and present any information
in mitigation” at their revocation proceedings. Id. R.
32.1(b)(2)(E) (2006). That language is in force today. See id.
R. 32.1(b)(2)(E). The advisory committee note
accompanying the 2005 amendment clarifies that “[t]he
amended rule recognizes the importance of allocution,” and
states that “the court is required to give the defendant the
opportunity to make a statement and present any mitigating
information.” Id. R. 32.1 advisory committee’s note (2005
amend.). And in 2007, we said that “sentencing procedures
for probation and supervised release violations are primarily
governed by Rule 32.1 of the Federal Rules of Criminal
Procedure, not Rule 32.” United States v. Leonard, 483 F.3d
635, 638–39 (9th Cir. 2007).
Daniels contends that the district court violated Rule
32.1(b)(2)(E) when it did not affirmatively offer him an
opportunity to allocute before imposing its sentence. The
Government, on the other hand, acknowledges that the district
court did not personally ask Daniels whether he wanted to
speak before sentencing him, but argues that Rule
32.1(b)(2)(E) does not mandate “a personal invitation to
speak before the imposition of a sentence.” Rather, the
Government suggests, the Rule’s allocution provision is
3
The version of the Rule to which we referred in Carper—Rule
32(a)(1)(C)—has since become Rule 32(i)(4)(A)(ii). The meaning of the
two versions, however, is substantially the same.
8 UNITED STATES V. DANIELS
passive; it “requires only an opportunity to make a statement
and present any information in mitigation during the
revocation hearing.”4 The Government’s position is, in
essence, that a court should honor a supervised releasee’s
request to allocute, but need not tell him of his right to do so
before imposing its sentence.
The Government misreads the Rule. The 2005
amendment to Rule 32.1 did not detract from our holding in
Carper that a district court errs “by failing to address [a
supervised releasee] personally to determine if he wishe[s] to
speak on his own behalf before imposing sentence.” 24 F.3d
at 1162. The drafters of the Federal Rules of Criminal
Procedure intended for Rule 32.1(b)(2)(E) to require courts
“to give the defendant the opportunity to make a statement
and present any mitigating information.” Fed. R. Crim. P.
32.1 advisory committee’s note (2005 amend.).
Allocution by a supervised releasee gives the court more
information on which to base its sentence. It also encourages
the supervised releasee to participate in post-revocation
sentencing, enhancing his dignity. As one commentator has
said, “allocution provides offenders the opportunity to contest
any disputed factual bases for sentencing and persuade the
judge to choose a favored sentence alternative.” Arthur W.
Campbell, Law of Sentencing § 9:18 (2013). Indeed,
allocution “‘is much more than an empty ritual: it represents
4
According to the Government, “[i]t does not matter . . . that the district
court did not address [Daniels] personally and invite him to speak before
imposing sentence.” Because the district court did afford
Daniels—through his counsel—multiple opportunities to speak before
sentencing, the Government’s theory runs, the district court did not violate
Rule 32.1.
UNITED STATES V. DANIELS 9
a defendant’s last opportunity to plead his case or express
remorse.’” Id. (quoting State v. Green, 738 N.E.2d 1208,
1221 (Ohio 2000)). We hold that Rule 32.1(b)(2)(E) requires
a court to address a supervised releasee personally to ask if he
wants to speak before the court imposes a post-revocation
sentence.
In so holding, we reject the Government’s suggestion that
Rule 32.1 requires only that a supervised releasee’s lawyer
may speak before imposition of sentence. Such a narrow
reading would stand in stark contrast to our precedent under
Rule 32, see United States v. Navarro-Flores, 628 F.2d 1178,
1184 (9th Cir. 1980) (noting that Rule 32 “is not complied
with when the sentencing judge affords only to counsel the
opportunity to speak”), and would do nothing to further the
interests of justice or the dignity of the individual who is
being sentenced.
We also reject the Government’s contention that the
district court satisfied its obligations under Rule 32.1 when it
sentenced Daniels. Nothing in the record resembles the kind
of personal invitation that Rule 32.1 commands. The
Government alludes to the district court’s colloquy with
Daniels’ counsel, citing it as evidence that Daniels had an
opportunity to make a statement and to present mitigating
information before he was sentenced. That Daniels’ counsel
was able to argue for his client, however, is an inadequate
substitute for Daniels’ right to allocute on behalf of himself.
See Green v. United States, 365 U.S. 301, 304 (1961) (“The
most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence,
speak for himself.”).
10 UNITED STATES V. DANIELS
Our holding confirms our statement in United States v.
Whitlock, 639 F.3d 935 (9th Cir 2011), that the 2005
amendment to Rule 32.1 “effectively codif[ied] the holding
in Carper by explicitly enumerating the right to allocution at
supervised release revocation sentencing hearings,” id. at 940.
And it comports with the views of our sister circuits that have
addressed this issue since 2005. See, e.g., United States v.
Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008) (“This right of
presentence allocution applies to sentences imposed for
revocation of supervised release.”); United States v. Carruth,
528 F.3d 845, 847 (11th Cir. 2008) (per curiam) (“[T]he right
to allocute under Rule 32.1 is clearly not substantively
different from the right to allocute under Rule 32. . . . The
court must personally extend to the defendant the right of
allocution.”); United States v. Pitre, 504 F.3d 657, 661–62
(7th Cir. 2007) (“Rule 32.1 requires a district court to ask the
defendant if she wishes to make a statement for the court to
consider before imposing a term of reimprisonment following
revocation of supervised release.”); cf. United States v.
Robertson, 537 F.3d 859, 862 (8th Cir. 2008) (questioning the
reasoning of United States v. Carruth and United States v.
Pitre, but assuming without deciding that Rule 32.1 “at least
requires the district court . . . to address the defendant
personally and make it clear he has a right to make a
statement and present any information in mitigation” (internal
quotation marks omitted)).
IV
The district court erred when it did not personally address
Daniels to inquire whether he wished to speak before
sentencing. To show that this error was plain, Daniels must
demonstrate that it (1) was “clear or obvious”; (2) “affected
substantial rights”; and (3) “seriously affected the fairness,
UNITED STATES V. DANIELS 11
integrity or public reputation of judicial proceedings.”
Castillo-Marin, 684 F.3d at 918.
We recognize that Rule 32.1’s allocution provision does
not mirror its Rule 32 counterpart. Compare Fed. R. Crim. P.
32.1(b)(2)(E) (stating that a supervised releasee is entitled to
“an opportunity to make a statement and present any
information in mitigation”), with id. R. 32(i)(4)(A)(ii)
(requiring a sentencing court to “address the defendant
personally in order to permit the defendant to speak or present
any information to mitigate the sentence”). Nonetheless, we
conclude that the district court’s error was “clear or obvious.”
See Castillo-Marin, 684 F.3d at 918. We do so because the
plain language of Rule 32.1—and particularly of the advisory
committee note accompanying the 2005 amendment to that
Rule—make clear that, despite the linguistic differences
between Rules 32 and 32.1, a court engaging in post-
revocation sentencing must personally address a supervised
releasee to ask if he wants to speak before sentencing. See
Fed. R. Crim. P. 32.1 advisory committee’s note (2005
amend.) (“[T]he court is required to give the defendant the
opportunity to make a statement and present any mitigating
information.”).
An error affects substantial rights only if it was
“prejudicial” and “affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734. In the sentencing
context, we have held that “when a plain error may have led
to a sentence that was . . . longer than necessary . . . that error
affects substantial rights.” United States v. Joseph, 716 F.3d
1273, 1280 (9th Cir. 2013) (internal quotation marks
omitted). More specifically, our denial-of-allocution
precedent is “quite clear: when a district court could have
lowered a defendant’s sentence, we have presumed prejudice
12 UNITED STATES V. DANIELS
and remanded, even if we doubted that the district court
would have done so.” Gunning, 401 F.3d at 1149 (collecting
cases).
Daniels argues that because the district court had
discretion to sentence him to a term of fewer than 40 months,
its failure to offer him a personal invitation to allocute before
sentencing was prejudicial. The Government, by contrast,
suggests that “remand would be pointless” because (1) there
is no indication that Daniels “would have even availed
himself of an invitation to orally supplement his defense
counsel’s statements and argument had the district court
offered one,” and (2) Daniels cannot show “that the district
court would have given him a lighter sentence if he actually
had supplemented defense counsel’s statements and
argument.” Indeed, the Government theorizes that “nothing
that [Daniels] might have said during an oral allocution
would have been likely to motivate the court to impose an
even shorter sentence.”
That argument is pure conjecture. But even if it were
true, it would not be controlling. The district court had
“discretion to impose a sentence shorter than the one it
selected.” Carper, 24 F.3d at 1162. It could have sentenced
Daniels to a term of fewer than 40 months. The
Government’s speculative suggestion that the district court
would not have further reduced Daniels’ sentence even if it
had heard directly from him, then, is beside the point. The
district court’s denial of Daniels’ right to allocute was
“prejudicial” and “affected the outcome of the . . .
proceedings,” Olano, 507 U.S. at 734, precisely because the
district court could have imposed a more lenient sentence
after hearing Daniels speak, see Gunning, 401 F.3d at 1149.
UNITED STATES V. DANIELS 13
In our view, the district court’s plain error affected Daniels’
substantial rights. See Joseph, 716 F.3d at 1280.
“In exercising the right to allocution, a defendant has the
right to fully present all available accurate information
bearing on mitigation of punishment, and the district court
has a duty to listen and give careful and serious consideration
to such information.” United States v. Mack, 200 F.3d 653,
658 (9th Cir. 2000). Daniels was denied this right—and the
district court did not fulfill its duty—when Daniels was not
told of his right to speak before sentencing.
We do not know what Daniels might have said if the
district court had offered him a chance to speak before
imposing its sentence. But whether he would have said
something to elicit a lower sentence is of no moment. See
United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir. 1993).
The right to allocute, and to be told that allocution is an
option, is both important to the person being sentenced and
fundamental to our criminal justice system. Supervised
releasees—like criminal defendants—have an absolute right
to speak before the penalty imposed by law is handed down.
A district court that does not offer a supervised releasee the
chance to exercise that right commits plain error.
We vacate Daniels’ sentence and remand to the district
court for proceedings consistent with our opinion.5
VACATED and REMANDED.
5
Because we vacate and remand Daniels’ sentence based on the district
court’s violation of Rule 32.1(b)(2)(E), we need not reach Daniels’
alternative argument that the district court committed procedural error.