United States v. Dante Hunter ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-3188
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UNITED STATES OF AMERICA
v.
DANTE HUNTER,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-05-cr-00103-001)
District Judge: Honorable Gene E.K. Pratter
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Submitted Under Third Circuit LAR 34.1(a)
April 13, 2015
Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges
(Filed: May 27, 2015)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Dante Hunter appeals his sentence because the District Court failed to provide the
opportunity to allocute. We vacate and remand for resentencing.
I.
In 2005 Hunter was convicted of possession of a firearm by a convicted felon. His
sentence was 80 months in prison and 3 years of supervised release. On March 14, 2014,
he began his period of supervised release. Just over a month later, a petition to revoke
release was filed alleging that Hunter had participated in the robbery of an armored
vehicle the day before and had failed to notify probation of a change of residence. A
bench warrant was issued for his arrest. Two weeks later the petition was amended to
include a third violation, that Hunter associated with a cousin who is a convicted felon.
The District Court held a revocation hearing on July 1, 2014. At the end of the
parties’ closing arguments, the District Court reviewed the evidence and then stated, “I’m
revoking [Hunter’s] supervised release. I am imposing a period of incarceration of 24
months.” The Court did not address Hunter directly or offer an opportunity for
allocution. It informed him that he had the right to appeal, and that he would receive
credit for the time he was incarcerated before the hearing. The Court then adjourned after
counsel stated there was nothing else they needed to bring to its attention.
II.
On appeal, Hunter argues the District Court erred by failing to provide an
opportunity for allocution before sentencing. Federal Rule of Criminal Procedure 32
requires a sentencing court 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.
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32(i)(4)(A)(ii). This rule extends to revocation hearings. United States v. Plotts, 359
F.3d 247, 250 (3d Cir. 2004). As Hunter failed to object in the District Court, his claim is
subject to plain error review. We have discretion to grant relief if the District Court
(1) commits error that (2) is “plain,” (3) “affects substantial rights,” and (4) “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United States
v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014). The Government agrees that the first two
requirements are satisfied here.
In United States v. Adams, the district court failed to address the defendant directly
and offer the opportunity for allocution before sentencing. 252 F.3d 276, 278 (3d Cir.
2001). Defense counsel did not object. Id. Based largely on Supreme Court precedent,
we applied a rebuttable presumption that an allocution error satisfies the third
requirement of plain error where the district court has discretion to impose a lower
sentence than the one actually imposed. Id. at 287–89; see also United States v.
Paladino, 769 F.3d 197, 201–202 (3d Cir. 2014); Plotts, 359 F.3d at 251. We also held
that the fourth requirement was satisfied. Adams, 252 F.3d at 288–89; see also Paladino,
769 F.3d at 203; Plotts, 359 F.3d at 251.
The Government acknowledges that this case falls squarely within Adams,
Paladino and Plotts and makes no effort to distinguish them with respect to the third or
fourth requirements of plain error. Gov’t Br. at 31. Thus under our precedent all the
prongs of plain error are met.
The Government argues, however, that our precedent is in tension with Supreme
Court cases since Adams. See, e.g., United States v. Marcus, 560 U.S. 258 (2010);
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United States v. Dominguez Benitez, 542 U.S. 74 (2004). Reviewing unpreserved errors
that were not related to allocution, the Court required in each case an affirmative showing
of a “reasonable probability” the errors affected the outcome of the proceedings. Marcus,
560 U.S. at 262–63; Dominguez Benitez, 542 U.S. at 76. Though the Government
suggests the Supreme Court would reach a result different than we do here, the Court’s
cases do not compel such an outcome. As we are bound by our precedent, which we
recently reaffirmed, see Paladino, 769 F.3d at 202, and as the Government concedes our
rule has been adopted by “[v]irtually every other Circuit,” Gov’t Br. at 32 n.6, we do not
reconsider it absent en banc review.
For the foregoing reasons, we hold that the District Court committed plain error
and we vacate and remand for resentencing. We therefore need not consider Hunter’s
other claims.
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