United States v. Ramon , 320 F.3d 519 ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE VALENTINE RAMON, JR.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Laredo Division
October 10, 2002
Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI, Judge.*
RESTANI, J.:
Appellant Jorge Valentine Ramon, Jr. appeals the district court’s sentence imposed upon
revocation of his supervised release. Because the district court sentenced Ramon without affording
him the right to allocute, we vacate and remand.
*
Judge of the United States Court of International Trade, sitting by designation.
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I. FACTS AND PROCEEDINGS
In June 1996, Ramon was convicted on a guilty plea to possession with intent to distribute
over two hundred (200) pounds of marijuana.1 The district court sentenced Ramon to fifty (50)
months in prison and three years supervised release. The conditions of the supervised release
prohibited him from committing a federal or state crime including unlawful use of any controlled
substance.
Ramon’s term of supervised release began on October 8, 1999. In July 2001, the United
States Probation Office filed a petition to revoke Ramon’s supervised release, alleging that he had
been arrested for possession of twenty-one (21) kilograms of cocaine and had submitted a urine
sample that tested positively for cocaine.
On August 3, 2001, the district court held an initial hearing on revocation. Defense
counsel explained that Ramon intended to contest revocation and that Ramon would remain silent
in the revocation proceedings because “he would not want anything that he says here to be used
against him in the state court.” Transcript of TSR Revocation Proceeding (Aug. 3, 2001), p. 8,
lines 11-15.
On September 5, 2001, the district court conducted an evidentiary hearing. The
Government produced evidence that Ramon had been found in possession of twenty-one (21)
kilograms of cocaine. At the close of the evidence, the district court asked, “All right. Okay.
Well, anything else that you-all want to talk about?” Transcript of Second TSR Revocation
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Ramon was charged by a two-count indictment for conspiring to possess, and for
possessing with intent to distribute 219.3 pounds of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C), 846. In April 1996, Ramon entered a plea of guilty to Count Two
(possession charge) before the Honorable Hayden W. Head, Jr.
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Hearing (Sept. 5, 2001), p. 31, lines 14-15. Defense counsel then argued that the Government
had not met its burden of proving that the defendant had violated the conditions of his supervised
release. The district court then commented that under federal law, Ramon would be facing a
mandatory twenty (20) year sentence.
But anyway, that’s a Class A felony. And so under the recommended guidelines for
supervised release, that’s all I’m dealing with. I’m dealing with your 1996 case, really.
I’ll revoke the supervised release and order you to serve 21 months. You can appeal that
decision for free. You just have to say that you want to, but you have to say it either right
now or in the next 10 days. Okay?
Id. at 33, lines 10-18. Ramon nodded his head in the affirmative. Ramon’s supervised release
was revoked and he was sentenced to twenty-one (21) months in the custody of the Bureau of
Prisons. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291, as an appeal from a final judgment of
conviction and sentence in the United States District Court for the Southern District of Texas,
Laredo Division, and more specifically under 18 U.S.C. § 3742, as an appeal of a sentence
imposed under the Sentencing Reform Act of 1984. Notice of appeal was timely filed in
accordance with Rule 4(b) of the Federal Rules of Appellate Procedure on September 12, 2001.
The district court’s compliance with Rule 32 is a question of law subject to de novo
review. United States v. Myers, 150 F.3d 459, 465 (5th Cir. 1998).
III. ANALYSIS
Federal Rule of Criminal Procedure 32(c)(3)(C) requires that the district court “address
the defendant personally and determine whether the defendant wishes to make a statement and to
present any information in mitigation of the sentence” prior to imposing sentence – a procedure
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also known as allocution. Ramon contends that he was denied his right of allocution under Rule
32(c)(3)(C) because the court did not expressly give him the opportunity to make a mitigating
statement prior to imposition of sentence. The question here is whether the court’s statement,
“anything else that you-all want to talk about?”, satisfies Rule 32(c)(3)(C). We find that it does
not.
Generally, a defendant must expressly and unequivocally be given an opportunity to
personally speak on his own behalf before a sentence is imposed. See, e.g., Myers, 150 F.3d at
462; United States v. Anderson, 987 F.2d 251, 261 (5th Cir. 1993); United States v.
Dominguez-Hernandez, 934 F.2d 598, 599 (5th Cir. 1991). “Trial judges before sentencing
should, as a matter of good judicial administration, unambiguously address themselves to the
defendant. Hereafter trial judges should leave no room for doubt that the defendant has been
issued a personal invitation to speak prior to sentencing.” Cuozzo v. United States, 325 F.2d
274, 275 (5th Cir. 1963) (quoting Green v. United States, 365 U.S. 301, 305 (1961)).
Failure to give a defendant the right of allocution is grounds for remand. “[A]llocution
continues to play a salient role in criminal cases. Thus, while we do not attach talismanic
significance to any particular string of words, a defendant must at least be accorded the functional
equivalent of the right.” United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). That
right must be communicated unequivocally, see , e.g., United States v. Echegollen-Barrueta, 195
F.3d 786, 790 (5th Cir. 1999); Myers, 150 F.3d at 461, even at probation revocation hearings.
See, e.g., United States v. Turner, 741 F.2d 696, 699 (5th Cir. 1984) (vacating sentence imposed
following revocation and remanding for resentencing on the ground that the defendants had been
denied the right of allocution); United States v. Eads, 480 F.2d 131, 132 (5th Cir. 1973) (same).
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We find that the district court’s statement, “anything else that you all want to talk
about?”, did not unambiguously provide defendant the right of allocution here. “[T]he district
court’s failure to comply with Rule 32(c)(3)(C) requires automatic reversal,” United States v.
Dabeit, 231 F.3d 979, 981 (5th Cir. 2000), and remand for resentencing. Myers, 150 F.3d at 463;
Anderson, 987 F.2d at 261. This is true even if there was no objection in the district court and
even if the defendant has not stated that he wishes to allocute. See Dominguez-Hernandez, 934
F.2d at 599.
Defendant did not waive his right of allocution at sentencing by remaining silent for the
purposes of revocation. While a district court has not deprived a defendant of his right to allocute
when it keeps him from incriminating himself at the sentencing by interrupting an inculpatory
statement, United States v. De La Paz, 698 F.2d 695, 697 (5th Cir. 1983), that is not the case
here. The record suggests that Ramon elected to remain silent expressly for the purposes of
revocation, not sentencing. “[O]nly at the final sentencing can the defendant respond to a
definitive decision of the judge.” United States v. Moree, 928 F.2d 654, 656 (5th Cir. 1991)
(quoting United States v. Behrens, 375 U.S. 162, 168 (1963) (Harlan J. , concurring)). The
court’s omission in this regard was not harmless error. Myers, 150 F.3d at 463 (“[R]emand is
necessary even when the judge’s comments, at the sentencing hearing or elsewhere, indicate that
the judge would remain unmoved in the face of anything the defendant has to say.”) (emphasis in
original).
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IV. CONCLUSION
The sentence imposed by the district court is VACATED and the case remanded for
resentencing.2
2
We note that Ramon has not explained what he would have said to persuade the trial
judge to lower his sentence. It is unlikely that he would have said anything at all, considering that
he had charges pending in state court arising from the same incident. Ramon’s attorney stated
that Ramon would remain silent – and Ramon did remain silent – for that very reason. Moreover,
the district judge commented that Ramon would be facing a minimum of twenty (20) years had he
been indicted in the federal system, which suggests that it is also unlikely the judge would have
been persuaded to sentence Ramon to anything below the maximum of twenty-one (21) months.
We agree with Judge Davis’ concurrence in Myers that our allocution jurisprudence
completely ignores the plain error and harmless error strictures of Federal Rule of Criminal
Procedure 52, see 150 F.3d at 465 (Davis, J., concurring), and we would affirm the sentence if we
were not bound to follow the decisions of prior panels. In the light of United States v. Vonn, 122
S. Ct. 1043, 1046 (2002), and its holding that Rule 52 in its entirety applies to the taking of pleas
under Federal Rule of Criminal Procedure 11, en banc review may be appropriate.
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