United States v. Jerry Puckett ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1484
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jerry Ray Puckett
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 12, 2018
Filed: March 19, 2018
[Unpublished]
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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Jerry R. Puckett pled guilty to two counts of escaping from custody in violation
of 18 U.S.C. § 751(a). The district court1 sentenced him to concurrent terms of 48
1
The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.
months’ imprisonment. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
Puckett argues his 48-month sentence (guidelines range 24 to 30 months) is
procedurally and substantively unreasonable because the court denied him “his right
to allocution prior to determining an upward variance” and imposed an “overly
punitive sentence” that failed “to give appropriate weight to the mitigating
circumstances.”
Puckett did not object to procedural error at sentencing, and this court reviews
for plain error. See United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008)
(“Procedural sentencing errors are forfeited, and therefore may be reviewed only for
plain error, if the defendant fails to object in the district court.”). “Under plain error
review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights. If these conditions are met, an appellate court may exercise its
discretion to correct a forfeited error only if it ‘seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” United States v. Vaughn, 519 F.3d
802, 804 (8th Cir. 2008) (internal citations omitted), quoting Johnson v. United
States, 520 U.S. 461, 467 (1997).
Puckett believes the “district court committed plain error when it failed to
sufficiently permit [him] to exercise his right to allocution prior to determining an
upward variance in imposing sentence.” This belief is without merit. Federal Rule
of Criminal Procedure 32 requires a district court “to permit the defendant to speak
or present any information to mitigate the sentence” before imposing a sentence. Fed.
R. Crim. P. 32(i)(4)(A)(ii). “[F]ailure to comply with Rule 32’s requirement of
affording a defendant the right of allocution constitutes reversible error per se which
mandates a remand for resentencing.” United States v. Patterson, 128 F.3d 1259,
1261 (8th Cir. 1997). However, if the district court allows a defendant to speak
before it imposes the sentence, it does not violate either Rule 32(i) or the United
States Constitution. See United States v. Hentges, 817 F.3d 1067, 1069-70 (8th Cir.
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2016). Here, although the court stated its intention to vary upward before allocution,
it allowed Puckett to speak before announcing the sentence. This is not error, let
alone plain error. See id. at 1070 (holding no plain error where district court
announced “its intention to impose a 132-month sentence before granting [defendant]
his right of allocution”). See also United States v. Williams, 109 F.3d 502, 513 (8th
Cir. 1997) (“[I]f, after imposing the sentence, a trial judge realizes the defendant has
not been afforded his right to allocution, the judge may correct the omission by
reopening the sentencing proceeding and subsequently addressing the defendant
pursuant to Rule 32.”).
Puckett contends the 48-month sentence is substantively unreasonable because
the “district court failed to give appropriate weight to the mitigating circumstances
of Mr. Puckett’s well-documented and undisputed history of [drug] addiction.” This
court reviews “the imposition of sentences, whether inside or outside the Guidelines
range, [with a] deferential abuse-of-discretion standard.” United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc). The district court considered Puckett’s
drug addiction, noting his drug use put the public at risk when he possessed a firearm
and drove “on public streets under the influence of methamphetamine.” Thus, while
the court acknowledged he did not have a “desire to go and get high,” he was “too
dangerous” and lacked “respect for the law.” The district court explained its reasons
for varying upward based on the § 3553(a) factors including “the history and
characteristics of the defendant, the need to promote respect for the law, the need to
afford adequate deterrence to criminal conduct, and the need to protect the public
from further crimes of the defendant.”
The district court did not abuse its discretion.
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The judgment is affirmed.
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