United States v. Plotts ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-19-2004
USA v. Plotts
Precedential or Non-Precedential: Precedential
Docket No. 02-4575
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PRECEDENTIAL Robert Epstein
Assistant Federal Defender
UNITED STATES Brett Sweitzer, Esq.
COURT OF APPEALS David L. McColgin, Esq.
FOR THE THIRD CIRCUIT Maureen Kearney Rowley, Esq.
Defender Association of Philadelphia
Federal Court Division
No. 02-4575 Curtis Center, Independence
Square West, Suite 540 West
Philadelphia, PA 19106
UNITED STATES OF AMERICA Attorneys for Appellant
v. Patrick L. Meehan
U.S. Attorney, Eastern District
RICHARD PLOTTS, of Pennsylvania
Laurie Magid
Appellant Deputy U.S. Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Terri A. Marinari
On Appeal from the Assistant U.S. Attorney
United States District Court for the 615 Chestnut Street
Eastern District of Pennsylvania Philadelphia, PA 19106
D.C. Crim. Action No. 02-cr-00020-01
(Honorable Stewart Dalzell) Attorneys for Appellee
Submitted Under Third Circuit LAR OPINION OF THE COURT
34.1(a)
October 30, 2003
AM BRO, Circuit Judge
Before: SCIRICA, Chief Judge,
NYGAARD and AMBRO, Richard Plotts appeals the District
Circuit Judges Court’s decision revoking supervised
release and imposing a sentence of
(Opinion filed February 19, 2004) imprisonment. Because Plotts was
denied the right of allocution at
sentencing, we reverse and remand to the
District Court for resentencing.1 of counsel, the District Court found that
Plotts had: (1) been in possession of a
I. Factual and Procedural Background firearm; (2) engaged in credit card
fraud2 ; (3) used drugs, including opiates,
In July 1995, Plotts was arrested on repeated occasions; and (4) lied to his
in Delaware on the suspicion of bank probation officer. 3 Following these
robbery. Shortly thereafter, a grand jury findings, the District Court revoked
returned an indictment against Plotts, Plotts’s supervised release and sentenced
charging him with bank robbery in him to 30 months imprisonment followed
violation of 18 U.S.C. § 2113(a). He by 30 months supervised release. Prior
pled guilty to a single count and received to sentencing, Plotts was not given an
a sentence of 80 months imprisonment opportunity to address the Court, known
followed by three years supervised as allocution. He appeals, alleging that
release. In February 2002 (after serving (1) he was denied the right of allocution
his sentence and while on supervised at his release revocation hearing before
release), responsibility for his sentence was imposed, and (2) the
supervision was transferred to the District Court improperly treated a
Probation Office for the Eastern District charged Grade C violation as a Grade A
of Pennsylvania. violation for sentencing purposes (thus
increasing his sentence). 4
Plotts was arrested in November
2002 by the Pennsylvania State Police
for violating 18 Pa. Cons. Stat. § 6105
(felon in possession of a firearm).
Shortly thereafter, the Probation Office
2
filed a petition to revoke Plotts’s While we are unaware of any
supervised release, alleging six violations formal criminal charges against Plotts for
of his release conditions. The District credit card fraud, he admitted to his parole
Court conducted a revocation hearing in officer using another individual’s credit
December 2002. The Government card for an unauthorized purpose.
presented the testimony of six witnesses.
3
Plotts presented no evidence. After On appeal, Plotts and the
considering the evidence and arguments Government present different versions of
the facts and circumstances surrounding
the revocation of his supervised release.
While this may be an area for the District
1
In its brief, the Government states Court to explore on resentencing, it is
it does not oppose resentencing in this irrelevant to our resolution of this case.
case. We commend the United States
4
Attorney’s Office for its candor and We have jurisdiction pursuant to
professionalism. 28 U.S.C. § 1291.
2
II. Standard of Review case for resentencing.5
As Plotts failed to preserve his
objections at the revocation hearing, we 5
Plotts also argues the District
review the decision of the District Court
C ourt committed plain error b y
for plain error. United States v. Adams,
mischaracterizing a Grade C violation,
252 F.3d 276, 279 (3d Cir. 2001); see
unauthorized use of a credit card, as a
also Fed. R. Crim. P. 52(b). Under plain
Grade A violation for sentencing purposes.
error review, we may grant relief if
As resentencing is granted on the ground
(1) the District Court committed an
that allocution was improperly denied, we
“error,” (2) it was “plain,” and (3) it
decline to entertain this alternative
affected “substantial rights” of the
argument. We note, however, that the
defendant. United States v. Olano, 507
revocation petition filed by the Probation
U.S. 725, 732 (1993). “A deviation from
Office with the District Court alleges a
a legal rule is [an] ‘error.’” United States
Grade C violation. In its brief, the
v. Russell, 134 F.3d 171, 180 (3d Cir.
Government concedes that Plotts’s actions
1998) (citation omitted). It is “plain”
do not constitute a Grade A violation, but
when “‘clear’ or ‘obvious.’” Id. (citation
instead insists they should be Grade B (not
omitted). In order for an error to affect
Grade C). Because the petition already
“substantial rights,” it must have been
alleges a Grade A violation (possession of
“prejudicial”; in other words, “it must
a firearm), Plotts would suffer little
have affected the outcome of the district
prejudice if, prior to resentencing, the
court proceedings.” Olano, 507 U.S. at
Probation Office were to amend the
734. If these requirements are satisfied,
violation grade assigne d to h is
we should exercise our discretion to
unauthorized use of a credit card. See U.S.
grant relief if the error “‘seriously affects
Sentencing Guidelines Manual § 7B1.4(a)
the fairness, integrity or public reputation
(listing the suggested imprisonment ranges
of judicial proceedings.’” Id. at 736
for Grades A, B and C violations). Until
(citation omitted); see also Adams, 252
revised by the Probation Office, however,
F.3d at 284-85.
these actions rema in as initia lly
characterized, a Grade C violation. See
III. Analysis
generally 18 U.S.C. § 3603(2) (stating that
it is the duty of the probation officer to be
We conclude that a criminal
aware of the conditions of supervised
defendant’s right of allocution extends to
release and to report to the sentencing
release revocation hearings. Because the
court conduct which may violate those
District Court committed plain error in
terms); U.S. Sentencing Guidelines
denying Plotts’s right, we remand this
Manual § 7B1.2 (same); see also Fed. R.
Crim. P. 32.1(b)(2)(A) (requiring that a
defendant at a revocation hearing receive
3
The rule in our Circuit is that disputed facts in connection with
denying the right of allocution (at least in sentencing or any defense arguments that
sentencing hearings) will generally result might reduce the applicable guideline
in resentencing under plain error review. range or ultimate sentence. Id. All of
Adams, 252 F.3d at 289. this is based on the belief that a
Rule 32(i)(4)(A)(ii) of the Federal Rules defendant is often his most persuasive
of Criminal Procedure states a court and eloquent advocate. Id. at 288.
must, before imposing sentence, “address
the defendant personally in order to While not constitutional, the right
permit the defendant to speak or present of allocution is “ancient in origin, and it
any information to mitigate the is the type of important safeguard that
sentence.” In Adams, we concluded the helps assure the fairness, and hence,
District Court in that case committed an legitimacy, of the sentencing process.”
“error” that was “plain” by failing to Id. Accordingly, we concluded in
address the defendant personally prior to Adams that denial of allocution at the
sentencing. 252 F.3d at 286. With defendant’s sentencing hearing was plain
regard to the “affects substantial rights” error and warranted resentencing. Id. at
portion of the plain error analysis, we 288-89.
interpreted Olano as requiring “the
defendant to make a specific showing of We have not ruled whether a
prejudice, unless he can show that the defendant’s right of allocution extends to
error should be presumed prejudicial, or a revocation hearing. The Federal Rules
that the error belongs in a special of Criminal Procedure fail to define
category of errors that should be explicitly the scope of allocution rights.
corrected regardless of prejudice (i.e., the Almost every circuit court to consider the
category of structural errors).” Id. at issue, however, has ruled that allocution
285-86. Prejudice should be presumed, must be permitted before imposition of
however, when a defendant shows the sentence at a supervised release (or
violation of a right could “have played a parole) revocation hearing. See United
role in the district court’s sentencing States v. Reyna, No. 01-41164, 2004
decision.” Id. at 287. We also stated that U.S. App. LEXIS 1134 (5th Cir. Jan. 26,
violation of the right of allocution could 2004) (en banc)6 ; United States v.
play a role in a court’s sentencing
decision whenever there exists any
6
The Reyna Court approved of the
plain error analysis in Adams, including
“written notice of the alleged violation”). the conclusion that prejudice should be
On resentencing, the District Court should presumed when violation of a right could
consider the effect, if any, of its alleged have affected a court’s sentencing
mischaracterization in the first instance. decision. 2004 U.S. App. LEXIS at *16.
4
Waters, 158 F.3d 933, 944-45 (6th Cir. 921 (5th Cir. 1994); United States v.
1998); United States v. Patterson, 128 Carper, 24 F.3d 1157, 1160-62 (9th Cir.
F.3d 1259, 1260-61 (8th Cir. 1997); 1994); United States v. Barnes, 948 F.2d
United States v. Rodriguez, 23 F.3d 919, 325, 329-30 (7th Cir. 1991). 7 In light of
our previously expressed views in Adams
on the importance of allocution, and in
reliance on the well-reasoned opinions in
The Fifth Circuit, however,
other circuits, we too conclude that a
disagreed with Adams somewhat as to
defendant’s right of allocution extends to
when an appellate court should exercise its
revocation hearings.
discretion in correcting a plain error. In
Adams, we stated without qualification
For similar reasons, we conclude
that denial of the right of allocution affects
that the District Court’s error in this case
the “fairness, integrity or public reputation
was “plain.” An error may be clear or
of judicial proceedings.” 252 F.3d at 288
obvious absent controlling Supreme
(citation and quotations omitted). In
Court or Third Circuit precedent. United
contrast, the Fifth Circuit concluded that
States v. Evans, 155 F.3d 245, 251-52
“[i]n a limited class of cases, a review of
(3d Cir. 1998). In such a case, decisions
the record may reveal, despite the presence
from other circuit courts are instructive.
of disputed sentencing issues, that the
See United States v. Barbosa, 271 F.3d
violation of a defendant’s right to
438, 456 (3d Cir. 2001) (relying on
allocution does not violate the last Olano
previous decisions of two circuit courts
prong. This case is a good example.”
in finding plain error). In Plotts’s case,
Reyna, 2004 U.S. App. LEXIS at *19.
the weight of appellate authority
We are bound, however, to follow
discussed above is sufficient to render
Adams, and it carves out no exception on
the District Court’s error clear and
its face. Further, the Reyna exception is,
by its own terms, limited; indeed, the Fifth
Circuit concluded that resentencing is
7
“ordinarily” required. Id. at *22. Reyna, Although the Eleventh Circuit’s
for example, had appeared before the same decision in United States v. Frazier, 283
judge three times, twice for violations of F.3d 1242 (11th Cir. 2002), appears to
the terms of his supervised release. support the position that allocution is not
Although Reyna did not have the required at a revocation hearing, this
opportunity to allocute at his opinion was later vacated. 324 F.3d 1224
most recent revocation hearing, he “had (11th Cir. 2003). The only other circuit
the opportunity to allocute both at his court to endorse the initial position in
original sentencing and when resentenced Frazier is the Tenth Circuit in an
following his first violation of supervised unpublished decision. See United States v.
release.” Id. at *20. Reyna is thus Fennell, 986 F.2d 1430, 1992 WL 401587
distinguishable. (10th Cir. 1992).
5
obvious.
Based upon Adams, we also
conclude that prejudice to “substantial
rights” may be presumed in this case
because allocution could have played a
role in the Court’s sentencing decision.
252 F.3d at 287. First, there exists no
statutory minimum term of imprisonment
upon revocation of supervised release.
See 18 U.S.C. § 3583(e)(3) (permitting
imprisonment for “all or part” of the term
of defendant’s supervised release); see
also 18 U.S.C. § 3583(h). Second, even
though Plotts’s 30-month added prison
term was the lowest sentence within the
recommended Guidelines Manual range
of 30 to 37 months, the Court had
discretion to impose an even lower
sentence, as the revocation provisions in
the Guidelines are advisory policy
statements and not binding. See United
States v. Schwegal, 126 F.3d 551, 554-55
(3d Cir. 1997).
Finally, denial of the right of
allocution “is not the sort of ‘isolated’ or
‘abstract’ error that we might determine
does not impact the ‘fairness, integrity or
public reputation of judicial
proceedings.’” Adams, 252 F.3d at 288
(citation omitted). As such, this is an
appropriate case in which to grant relief.
*****
We reverse and remand to the
District Court for resentencing.
6