United States v. Patricia L. Butler ( 2017 )

Case: 16-17203 Date Filed: 04/07/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17203
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00036-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA L. BUTLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(April 7, 2017)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
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Patricia Butler appeals her sentence of 12 months and 1 day, imposed after
she pled guilty to one count of theft of government money, in violation of
18 U.S.C. § 641. Butler argues that the district court plainly erred in not allowing
her the right of allocution before imposing her sentence. The district court asked
Butler if she wanted to speak during the discussion about acceptance of
responsibility. The government, however, concedes error and that, after ruling on
that guidelines issue, the district court should have later addressed Butler
personally and allowed her to allocute on any subject of her choosing prior to the
imposition of the sentence.
A district court’s failure to accord a defendant the right of allocution at
sentencing is reviewed for plain error when the defendant fails to timely object to
this omission. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). Federal
Rule of Criminal Procedure 32(i)(4)(A)(ii) requires a district court, prior to
imposing a sentence, to address the defendant personally and determine whether
the defendant wishes to make a statement and to present any information in
mitigation of the sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii). Addressing defense
counsel, instead of the defendant directly, does not satisfy this requirement. Perez,
662 F.3d at 584.
Our inquiry is whether the district court’s colloquy with the defendant is the
“functional equivalent” of what Rule 32(i)(4)(A)(ii) prescribes. Id. at 585. In
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order for us to find functional equivalency, the record must demonstrate that the
court, the prosecutor, and the defendant must, at the very least, have interacted in a
manner that shows clearly and convincingly that the defendant knew that she had a
right to speak on any subject of her choosing prior to the imposition of sentence.
Id.
All four prongs of the plain error standard are established when a district
court failed to comply with Rule 32(i)(4)(A)(ii) and the district court sentenced the
defendant to more than the low end of the defendant’s guidelines range. Id. at 585-
86.
Here, as in Perez, the record does not reflect that the district court, the
government, and Butler herself interacted in a manner that showed that Butler was
given the opportunity to speak on any subject of her choosing prior to the
imposition of sentence, not just the limited subject of acceptance of responsibility.
See Perez, 662 F.3d 585; Fed. R. Crim. P. 32(i)(4)(A)(ii). As we determined in
Perez, all four prongs of plain error review have been established here because the
district court failed to comply with Rule 32(i)(4)(A)(ii) and the district court
sentenced Butler to more than the low end of the guidelines range. Id. at 585-86.
Therefore, the district court committed reversible plain error. Id. at 585-86. We
vacate Btuler’s sentence and remand for Butler to be afforded the right of full
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allocution and then for resentencing. Nothing herein speaks to the merits or the
amount of the sentence.
VACATED AND REMANDED.
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