United States v. Silva ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50871
Plaintiff-Appellee,
v.  D.C. No.
CR-02-01933-NAJ
PAUL SILVA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
September 15, 2006—Pasadena, California
Filed January 3, 2007
Before: J. Clifford Wallace, Diarmuid F. O’Scannlain, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge O’Scannlain
25
UNITED STATES v. SILVA 27
COUNSEL
Jason M. Goldberg, Assistant United States Attorney, Office
of the United States Attorney, San Diego, California, argued
the cause for the plaintiff-appellee and Carol C. Lam, United
States Attorney and Roger W. Haines, Jr., Assistant United
States Attorney were on the brief.
Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, argued the cause for the defen-
dant-appellant and was on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a defendant has a right to allocute
during a limited remand to the district court from a sentencing
appeal.
28 UNITED STATES v. SILVA
I
A jury in the Southern District of California convicted
appellant Paul Silva of importation of marijuana and posses-
sion of marijuana with intent to distribute. The district judge
held a sentencing hearing, in which he considered the Proba-
tion Officer’s Report, Silva’s Sentencing Memorandum and
Departure Request, the Addendum to the Probation Officer’s
Report, and the Government’s Sentencing Summary Chart.
He expressly asked Silva whether he wished to comment;
Silva declined to speak.
In determining Silva’s sentence, the district judge applied
the then-mandatory Federal Sentencing Guidelines. He
declined to depart downward based on diminished capacity,
after finding that Silva was voluntarily intoxicated and might
endanger the public if released sooner. He calculated a crimi-
nal history score, but reduced it, after concluding that “the
criminal history [wa]s overrepresented by one level.”1 Sen-
tencing Silva to 77 months in prison and three years of super-
vised release, he recommended that Silva be housed near his
relatives and enrolled in a drug treatment program.2
Silva appealed. We rejected his procedural and evidentiary
claims, but granted a limited remand, as required by United
States v. Ameline, 409 F.3d 1073, 1084-86 (9th Cir. 2005) (en
banc), in order to “determine from the record whether the dis-
trict court would have imposed a materially different sentence
if it had known that the United States Sentencing Guidelines
were advisory rather than mandatory, as the Supreme Court
1
Reducing the criminal history score lowered the corresponding range
of possible incarceration from 84-105 months to 77-96 months.
2
Following imposition of the sentence and recommendations, Silva
blurted out: “No, way, man. Wait, I want to say something, dude. The
maximum is five years, man.” However, no further comments by Silva
were entered in the record, and Silva does not claim that he was denied
a right to allocute during the original sentencing proceeding.
UNITED STATES v. SILVA 29
held in Booker.” See United States v. Silva, No. 03-50458,
2005 WL 1669569, at **1 (9th Cir. July 1, 2005).
Receiving the case on limited remand, the district court
solicited submissions from counsel, as required under Ame-
line. See 409 F.3d at 1085. Silva’s counsel sought a full sen-
tencing hearing at which Silva could appear, but the district
judge responded: “[A] full sentencing hearing . . . is not the
mandate issued by the Ninth Circuit . . . [and] the defendant’s
presence is not warranted.” The judge reaffirmed Silva’s orig-
inal sentence: “[H]aving reviewed the written comments of
counsel and the factors pursuant to 3553(a), [the court] finds
that the sentence imposed by this court would not be different
under the advisory guidelines and, on that basis, reaffirms the
sentence previously imposed by the court.” (emphasis added).
Silva timely appeals.
II
Silva argues that he had a right to allocute during the lim-
ited remand proceeding. In support of this right, he cites our
decision in Ameline, our due process jurisprudence, and Fed-
eral Rule of Criminal Procedure 32.
A
In Ameline, our en banc court considered the need to cor-
rect unpreserved Booker error, and noted that “plain error
analysis” can be particularly difficult in cases “where it is not
possible to reliably determine from the record whether the
sentence imposed would have been materially different had
the district court known that the Guidelines were advisory.”
Ameline, 409 F.3d at 1084. In such cases, “we will remand to
the sentencing court to answer that question.” Id.3
3
Four circuits have adopted this limited remand procedure to assess the
possibility of Booker error. See United States v. Crosby, 397 F.3d 103 (2d
Cir. 2005); United States v. Paladino, 401 F.3d 471 (7th Cir. 2005);
United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005); and Ameline, 409
F.3d 1073.
30 UNITED STATES v. SILVA
[1] On remand, Ameline requires the district court to make
a subjective determination, based upon a review of the record
and the submissions of counsel, as to whether the sentence
would have been materially different under advisory Guide-
lines. The materials relevant to the inquiry mirror those con-
sidered by an appellate court during plain error analysis:
In answering the question we pose, the district court
need not determine or express what the sentence
would have been in an advisory system. It is enough
that the sentence would have been materially differ-
ent. We agree with the Second Circuit that the
“views of counsel, at least in writing,” should be
obtained.
Ameline, 409 F.3d at 1085 (citing Crosby, 397 F.3d at 120).
We circumscribed not only the relevant materials but the
effect of the remand inquiry. Id. If the district judge decides
that she would have chosen the same sentence, no plain error
occurred, and the original sentence stands. Id. However, if the
judge would have selected a different sentence, her pre-
Booker reliance on the mandatory Guidelines constitutes
reversible error, and resentencing must follow. Id.
[2] Importantly, Ameline allows a district judge to proceed
directly from error analysis to resentencing, without any
appellate involvement. See id. at 1080 (adopting the “less
cumbersome” approach of the Second Circuit, so that “if a
district court judge determines that resentencing is warranted
after remand from the court of appeals, he or she can simply
vacate the sentence and resentence” (emphasis added)); see
also id. at 1089 (Wardlaw, J., dissenting) (objecting that this
procedure delegates an appellate function to the district
courts). Despite Ameline’s fluid transition from error analysis
to resentencing, the phases are distinct. See id. at 1085. Most
importantly, the separate event of a resentencing entails a far
more extensive proceeding and is necessary only if the initial
inquiry reveals sentencing error:
UNITED STATES v. SILVA 31
In such a case, the original sentence will be vacated
and the district court will resentence with the defen-
dant present. In resentencing the defendant, the dis-
trict court is permitted to take a fresh look at the
relevant facts and the Guidelines consistent with
Booker, the Sentencing Reform Act of 1984, Rule 32
of the Federal Rules of Criminal Procedure, and this
opinion.
Id. (citations omitted). Thus, we distinguished full resentenc-
ing from the streamlined initial inquiry established by the
Second Circuit, in which the district court “ ‘need not’ require
the presence of the Defendant.” Crosby, 397 F.3d at 120 (cita-
tion omitted); see also United States v. Jasper, 2005 WL
774519, at *1 (S.D.N.Y. Apr. 6, 2005) (noting that Crosby
does not require a defendant to be present during the initial
inquiry).
[3] In Silva’s case, the district judge properly followed the
Ameline procedure: He evaluated the record, considered the
views of counsel, and concluded that he would have chosen
the same sentence under a discretionary regime. Ameline pro-
vides no right for a defendant even to be present during such
a limited inquiry, and so by necessary implication does not
support a right to allocute therein.4
4
Although Ameline delineates the procedure to be followed on limited
remand, Silva contends that the remand should be compared to the non-
traditional sentencing proceedings in United States v. Behrens, 375 U.S.
162 (1963), at which a defendant has a right to allocute. In Behrens, the
Court held that a defendant may speak in a hearing to determine whether
results of a study would lead the court to modify a previously tentative
sentence. Id. at 164-66. The function of an Ameline remand does not mir-
ror the sentencing purpose in Behrens. An Ameline remand allows a court
to ascertain whether plain error occurred in an original sentence intended
to be final, and does not require new evidence or resentencing, unless such
error is found.
32 UNITED STATES v. SILVA
B
Silva then asks us to add a gloss to Ameline. In particular,
he argues that our Ameline decision should not be read to
accept fully the Second Circuit’s Crosby approach, which he
claims lacks a legal basis. Yet our court has repeatedly
espoused the Crosby method. See Ameline, 409 F.3d at 1082
(“[T]he limited remand procedure set forth in Crosby best
resolves this unique issue that has arisen in the wake of the
Supreme Court’s holding in Booker.”); United States v. Mont-
gomery, 462 F.3d 1067, 1069-70 (9th Cir. 2006) (restating
explicitly what Ameline requires through references to
Crosby).
Although we have never specifically addressed the right of
allocution during an Ameline remand, we clarified the requi-
site procedures. In Montgomery, we declared: “Read in con-
text, Ameline requires, at a minimum, that the district court
obtain, or at least call for, the views of counsel in writing
before deciding whether re-sentencing is necessary.” 462 F.3d
at 1070. There, we declined to complicate the Ameline inquiry
by turning it into a full-fledged sentencing proceeding, in
which a right to allocute would be essential.
III
[4] Finding no support in Ameline for Silva’s right to allo-
cute, we turn to Silva’s due process argument. We have previ-
ously stated: “In the context of criminal law, the backbone of
[our] democratic faith is the right of a criminal defendant to
defend himself against his accusers; and it has long been rec-
ognized that allocution, the right of the defendant to person-
ally address the court, is an essential element of a criminal
defense.” Boardman v. Estelle, 957 F.2d 1523, 1526 (9th Cir.
1992) (footnote omitted). The purpose of the right of allocu-
tion is to allow a defendant to “bring mitigating circumstances
to the attention of the court.” Sherman v. United States, 383
F.2d 837, 839 (9th Cir. 1967). Due process requires that a
UNITED STATES v. SILVA 33
defendant who seeks to speak must be given such an opportu-
nity before a sentence is imposed. See Boardman, 957 F.2d at
1524.
[5] While these cases clearly place the right of allocution
on a strong constitutional foundation, they do not clarify
whether such right exists during an Ameline remand proceed-
ing. Of course, due process does not mandate an opportunity
to speak at every judicial proceeding that may affect a convic-
tion or sentence. In United States v. Veatch, 674 F.2d 1217
(9th Cir. 1981), we discerned no due process violation where
the defendant was not allowed to be present at a pretrial con-
ference. Id. at 1225. In Stein v. United States, 313 F.2d 518
(9th Cir. 1962), cert. denied, 373 U.S. 918 (1963), we
affirmed the district court’s denial of the defendant’s motion
attacking the sentence, although the trial judge denied the
motion without a hearing. Id. at 522. In Olney v. United
States, 433 F.2d 161 (9th Cir. 1970), we concluded that the
defendant had no right to be present at a pretrial conference,
although we stopped short of suggesting “that there is no right
whatever to be present at hearings on pre- and/or post-trial
motions.” Id. at 163.
[6] Moreover, we have decided that allocution is not always
necessary in the case of sentencing error. In United States v.
Knows His Gun, 438 F.3d 913 (9th Cir. 2006), we considered
whether “a remand is appropriate so that [a defendant] can
‘exercise his right to allocution unencumbered by the manda-
tory nature of the Guidelines’ and also introduce evidence of
other factors, such as ‘background, character and conduct,’
which were not relevant under a mandatory Guidelines
regime.” Id. at 919-20. At Knows His Gun’s original sentenc-
ing, the district court judge anticipated the possibility that the
Guidelines might later be found unconstitutional. Id. He con-
sidered evidence regarding non-Guidelines factors, gave the
defendant an opportunity to speak, and chose an “alternate
sentence” unconstrained by the Guidelines. Id. (weighing all
§ 3553 factors, but reaching an identical sentence). We
34 UNITED STATES v. SILVA
affirmed, concluding that an Ameline remand was unneces-
sary, because the defendant had already had a chance to pre-
sent non-Guidelines evidence at the original sentencing and
needed no further right to allocute.5 Id.
[7] Applying this reasoning to the Ameline remand context,
we conclude that a defendant does not have a right to allocute.
Due process requires a defendant to have an opportunity to
“bring mitigating circumstances to the attention of the court,”
Sherman, 383 F.2d at 839, only when a new sentence is to be
imposed.6 Because an Ameline remand merely requires review
of the record and the views of counsel, due process does not
require allocution.
IV
[8] Last, we address Silva’s argument that Fed. R. Crim. P.
32 mandates allocution during an Ameline remand. We
acknowledge that the Federal Rules of Criminal Procedure
may create rights that are not guaranteed by the Constitution.
5
In United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997), we
noted that even during an original sentencing hearing, the right to allocute
is not absolute: Once a defendant has had a “clear and unrestricted oppor-
tunity . . . to make any statement,” the defendant may be denied a later
opportunity to speak, without any violation of “her rights under due pro-
cess or Rule 32.” Id. at 841.
6
Despite the circumscribed scope of an Ameline remand, Silva argues
that such a remand necessarily involves the consideration of new evi-
dence, because a district judge no longer must confine his analysis to the
Guidelines factors. Silva correctly points out that a judge may give signifi-
cant weight to “[m]ental and emotional conditions,” which are “not ordi-
narily relevant in determining whether a departure is warranted.” U.S.S.G.
§ 5H1.3 (2004). However, the Guidelines, even when mandatory, did not
preclude consideration of such factors. Indeed, Silva was allowed to pre-
sent extensive and expert testimony regarding his mental and emotional
problems. That evidence became part of the record, which the district
judge considered on remand. Under Ameline, we do not second-guess the
district court’s subjective determination that these factors would not have
changed his sentencing decision.
UNITED STATES v. SILVA 35
Here, we inquire whether an opportunity to allocute during an
Ameline remand, though not mandated by the Constitution, is
required as a statutory matter. Fed. R. Crim. P. 32 specifies
that before sentencing, a “court must . . . address the defen-
dant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(a)(ii). In Boardman, we noted that this rule
applies in some situations where the Constitution would not
require allocution. See 957 F.2d at 1526 (“[The] sentencing
judge’s failure to ask a defendant if he had anything to say,
although a violation of Fed. R. Crim. P. 32(a)(1)(C), was not
an error of Constitutional dimension . . . .” (citing Hill v.
United States, 368 U.S. 424 (1962)) (emphasis added) (foot-
note omitted)).7
We have not confined the application of Fed. R. Crim. P.
32 to the context of original sentencing. In United States v.
Carper, 24 F.3d 1157 (9th Cir. 1994), we determined that the
rule provides a right to allocute before revocation of parole,
because “although the defendant may have had the opportu-
nity to speak at the original sentencing hearing, the conduct
giving rise to the new sentence is different.” Id. at 1161-62.
Silva contends that our decision in United States v. Gun-
ning, 401 F.3d 1145 (9th Cir. 2005), interprets Fed. R. Crim.
P. 32 to require allocution upon limited remand. In Gunning,
we remanded a case to the district court for the limited pur-
pose of recording whether the court had considered a minor
role adjustment at original sentencing. Id. at 1147-48. If the
district court found that it had not, it was to resentence in light
of the evidence for and against a minor role adjustment. Id.
7
The Hill Court referenced Fed. R. Crim. P. 32(a)(1)(C), which applies
to offenses committed prior to November 1, 1987. This rule, like Fed. R.
Crim. P. 32(i)(4)(A)(ii), requires a sentencing court to “address the defen-
dant personally and ask the defendant if the defendant wishes to make a
statement in the defendant’s own behalf and to present any information in
mitigation of punishment.” Fed. R. Crim. P. 32(a)(1)(C).
36 UNITED STATES v. SILVA
at 1148. The district court then held a hearing regarding the
adjustment, viewed evidence it had not already considered,
and decided to reimpose the same sentence. Id. During this
proceeding, the judge neglected his duties under Fed. R.
Crim. P. 32 to “afford the defendant an opportunity to present
all available accurate information bearing on mitigation of
punishment” and “then listen and give careful and serious
consideration to such information.” Id. at 1147 (internal quo-
tation marks and citations omitted). We vacated and
remanded, concluding that “the district court overlooked
according Gunning his right of allocution at resentencing.” Id.
at 1149 n.6; see also id. at 1150 (“We are not able to say that
the district court could not have lowered Gunning’s sentence
had he been given an opportunity to speak.”).
Gunning does not govern Silva’s appeal, because Silva
received an opportunity to speak before sentencing (although
he refused). The district judge never resentenced him, and
never held a hearing to consider evidence that had not been
presented at the original sentencing. Therefore, Gunning is
inapposite.
[9] Ogden v. United States, 323 F.2d 818 (9th Cir. 1963),
provides a better analogy to the limited inquiry made in
Silva’s case. In Ogden, we held that the defendant had no
right of allocution during a limited remand intended “solely
for the purpose of permitting the trial court to supplement the
record to enable it to determine whether prejudicial error had
occurred. The conviction was to be set aside and a new trial
ordered only if the trial court concluded that such error had
occurred.” Id. at 822. The narrow purpose of the remand in
Ogden is similar to the constrained nature of an Ameline
remand. As in Ogden, we discern no right of allocution during
so limited an inquiry.
V
[10] Our review of Ameline, our due process jurisprudence,
and Fed. R. Crim. P. 32 reveal no constitutional or statutory
UNITED STATES v. SILVA 37
reason to require allocution during an Ameline remand. We
emphasize that the Ameline procedure is limited, and that
“[w]hile this court has held that the right to allocute at sen-
tencing has the same quality as the right to put on a defense
. . . it has never held that a defendant has a right to unlimited
allocution.” Leasure, 122 F.3d at 840. Denying allocution
during a remand to discern sentencing error does not infringe
on a defendant’s constitutional rights, and our judicial role
precludes us from engrafting new requirements into the Fed-
eral Rules of Criminal Procedure.
AFFIRMED.