United States v. Sylvan Abney ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2020 Decided April 24, 2020
No. 19-3090
UNITED STATES OF AMERICA,
APPELLEE
v.
SYLVAN D. ABNEY ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00191-1)
Julia Fong Sheketoff, Assistant Federal Public Defender,
argued the cause and filed the memorandum of law and fact
and reply for appellant. With her on the memorandum of law
and fact and reply was A.J. Kramer, Federal Public Defender.
Ethan L. Carroll, Assistant U.S. Attorney, argued the
cause for appellee. With him on appellee=s memorandum of
law and fact were Elizabeth Trosman and Elizabeth H.
Danello, Assistant U.S. Attorneys.
Before: SRINIVASAN , Chief Judge, and TATEL and
PILLARD , Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
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PILLARD , Circuit Judge: Sylvan Abney appeals his
sentence because the district court denied his request to
allocute before the court sentenced him. We hold that denial
was reversible error, so vacate the sentence and remand to the
district court for resentencing.
BACKGROUND
In December 2007, Abney pled guilty to unlawful
possession with intent to distribute 50 grams or more of cocaine
base, or crack, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii) (2006). Abney was initially released on personal
recognizance pending sentencing. After Abney failed to
comply with terms of that release, the district court revoked
Abney’s bond and, on August 2, 2010, sentenced him to the
then-prevailing mandatory minimum: ten years’ imprisonment
and five years of supervised release. See id. § 841(b)(1)(A).
On an earlier appeal, this court ordered resentencing because
Abney’s counsel had been ineffective in failing to seek a
continuance of the sentencing pending the anticipated
presidential approval of the Fair Sentencing Act of 2010, Pub.
L. No. 111-220, 124 Stat. 2372, already passed by both houses
of Congress. See United States v. Abney, 812 F.3d 1079, 1082
(D.C. Cir. 2016). That law would apply to sentences imposed
after it was signed into law, and its elimination of higher
mandatory minimum sentences for crack offenses than for
those involving powder cocaine would have benefitted Abney.
See id. at 1084. On remand, under the new law with its five-
year mandatory minimum, the district court resentenced Abney
to eight years in prison and five years of supervised release.
Abney was released from prison in 2016 but has twice
been recommitted for failure to comply with terms of his
supervised release. Abney first violated supervised release
when he was convicted of misdemeanor contempt for visiting
3
his mother’s home in violation of a D.C. Superior Court stay-
away order. The district court revoked his supervised release
in May 2017 and sentenced him to four months in prison with
a four-year term of supervised release. After serving the term
of imprisonment for having violated terms of his prior release,
Abney was released to a halfway house, but was discharged
before completing his term of sentence there after he returned
late to the house on two occasions. He further violated
conditions of release by failing to appear regularly for meetings
with his probation officer and for failing to reside at his
mother’s home, which, with his mother’s agreement following
resolution of the Superior Court case, had become his assigned
residence. See 11/8/19 Revocation Hearing Tr. (RH Tr.) at
1:18-2:9, 5:6-8 (Appellant’s App’x (AA) 131-32, 135); 5/15/17
RH Tr. at 7:5-7 (AA 124). On November 8, 2019, the district
court again revoked Abney’s supervised release. 11/8/19 RH
Tr. at 8:17-24 (AA 137). That revocation proceeding is the
subject of this appeal.
Abney—who was removed as a child from his mother’s
custody and raised in foster homes yet had graduated from high
school and begun college before his conviction at age 20—got
a job after he came out of prison. Id. at 6:15-19, 7:25-8:3 (AA
135-37). At the revocation hearing, the government
recommended that Abney serve four months in prison, while
Abney requested six months in a halfway house so that he
could keep working. Id. 6:3-8:6 (AA 135-37). Without first
inviting Abney to address the court, the district court chose to
exceed the government’s recommendation, announcing that it
would revoke Abney’s supervised release and impose a
sentence of six months’ imprisonment, two months in a
halfway house, and eighteen months of supervised release with
mandated cognitive behavioral therapy. Id. at 8:9-24 (AA
137). As the court was specifying the terms of the sentence,
Abney interrupted, asking, “May I say something?” Id. at 8:25
4
(AA 137). The district court replied, “I’m not done,” and
completed the imposition of the sentence. Id. at 9:1-10:8 (AA
138-39). After discussing with the probation officer some
details regarding the halfway house assignment and available
services, and asking both counsel whether they had requests or
questions, the court asked, “Now, Mr. Abney, do you want to
say something? What do you want to say?” Id. at 10:14-15(AA 139).
Abney responded “Yes,” and started to say that he thought
he had not violated the terms of his release, questioning
whether it was permissible for the probation officer to stop by
his house more than once a month. Id. at 10:16-25 (AA 139).
The district court interrupted, “Are you done?” Id. at 11:2 (AA
140). Abney responded, “No, I’m not done,” and again
protested that he did not understand how the probation officer
could “pop by my house any time she wants,” resulting in his
being found in violation for his unwillingness to meet with her,
when the terms of his probation required only that he meet with
her once a month. See id. at 11:3-7 (AA 140); see also id. at
14:3-12 (AA 143).
The judge responded that Abney’s failure to keep in touch
with the probation officer violated his terms of supervised
release, and said he would hold a status conference to review
future conditions of supervision when Abney was next
released. Id. at 11:8-18 (AA 140). Abney persisted, saying
that he was “trying to get a new judge. I’m trying to change
my probation [officer], and . . . going to jail is not helping my
situation. That’s making my situation even worse. . . . I’m
trying to get into a halfway house.” Id. at 12:12-15, 13:1-2 (AA
141-42). The court told Abney: “You’re going to go to a
halfway house at some point, but not until you serve six
months.” Id. at 13:3-5 (AA 142). Abney further urged the
court, “I’m homeless. . . . I cannot stay with my mother, so this
5
is not helping my situation. You keep sending me to jail. It’s
not working. I got two jobs right now so why am I going to
jail? This is not helping my situation.” Id. at 13:6-17 (AA
142).
The court told Abney, “You can talk with your counsel,”
but Abney objected, “I’m talking to you. You’re doing it.
You’re sending me to jail.” Id. at 13:18-25 (AA 142). After
the court again instructed Abney to speak with his counsel,
counsel interjected that Abney was trying to express his
“frustration” that “[l]iving on the streets and trying to maintain
employment and comply with all of the conditions of
supervised release is extremely difficult, and it sort of sets him
up for failure,” and that Abney “was asking for a lengthier time
in the halfway house as opposed to incarceration . . . so that he
can get himself back on his feet.” Id. at 14:15-25 (AA 143).
The court asked if Abney would like a longer term in the
halfway house following incarceration than the two months the
court had imposed; Abney’s counsel said he would not. See id.
at 15:2-16 (AA 144). The court rejected the notion that the
halfway house should replace any of the six months of prison
time, commenting in an aside to Abney’s counsel, “I’m
sure . . . you have a very clear recollection as to . . . how
successful he was operating in the halfway house when he was
in one. . . . He wasn’t very successful.” Id. at 15:17-19, 21 (AA
144). The court told counsel to “[p]lease answer to the best of
your ability any questions” Abney has, and concluded the
proceeding. Id. at 16:10-11 (AA 145).
On appeal, Abney asks for resentencing on the ground that
the district court denied his right to allocute before delivery of
his sentence. Abney also requests reassignment of the case to
a different judge for resentencing to preserve the reality and
appearance of sentencing by an impartial court, because he
believes the district judge will have difficulty setting aside his
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prior judgment. The government does not dispute that the
district court erred in denying Abney’s right to presentence
allocution, but argues that Abney did not preserve his claim in
the district court, that the district court did not commit plain
error, and that, in any event, reassignment is unwarranted. For
the reasons set forth below, we grant Abney’s request for
resentencing but deny his request for reassignment.
DISCUSSION
We must vacate the sentence the district court imposed
without having first invited Abney to allocute, but there is more
than one available path to that result. The district court erred
in failing to invite Abney to allocute before sentencing him.
While the court was imposing the sentence, Abney asked to
speak. The judge stopped him and finished the sentencing
before circling back and addressing himself to Abney. The
judge responded to Abney’s further questions by directing him
to get any clarification from his own counsel. The defense did
not further take exception to the court’s failure to invite Abney
to allocute.
District courts have an established, affirmative obligation
to invite defendants to allocute before they impose a
sentence—whether initially or upon violation of conditions of
supervised release. See Fed. R. Crim. P. 32(i)(4)(A)(ii),
32.1(b)(2)(E). Our circuit has had few opportunities to review
allocution-denial claims, but the law of other circuits reveals a
range of approaches to review of such errors. Where courts fail
to make the requisite invitation, some circuits require
automatic reversal, or review some unpreserved allocution
claims de novo. See, e.g., United States v. De Alba Pagan, 33
F.3d 125, 130 (1st Cir. 1994) (holding that, “if the trial court
fails to afford a defendant either the right of allocution
conferred by Rule 32(a)(1)(C) or its functional equivalent,
7
vacation of the ensuing sentence must follow automatically”);
United States v. Richardson, 948 F.3d 733, 744 (6th Cir. 2020)
(“[W]e review an allegation of a complete denial of the right to
allocute de novo[, b]ut when the appellant alleges an improper
limitation on his right to allocute—but failed to object below—
we review for plain error.”) (citation omitted). Other circuits
review an unpreserved allocution-denial claim only for plain
error. See United States v. Bustamante-Conchas, 850 F.3d
1130, 1133, 1138-39 (10th Cir. 2017) (en banc) (applying
plain-error standard to allocution denial, reversing circuit
precedent that had treated such error as “per se or
presumptively prejudicial”); United States v. Reyna, 358 F.3d
344, 347, 350 (5th Cir. 2004) (en banc) (applying plain-error
standard to allocution error, reversing prior “consistently held”
circuit rule that “denial of the right of allocution is not subject
to plain or harmless error review under Rule 52” but instead
“requires automatic reversal”); see generally United States v.
Vonn, 535 U.S. 55, 65 (2002) (holding Rule 52(b) plain-error
review applicable to district court’s failure during plea
colloquy to fulfill affirmative obligation of Rule 11(b)(1)(D) to
inform defendant of right to appointed trial counsel).
We have not weighed in on the review framework but,
assuming the more demanding approach—that reversal is in no
case “automatic” and that preservation matters—we conclude
that Abney’s attempt to speak up preserved his claim and, even
if it did not, the court’s failure to invite Abney to allocute
before it sentenced him is plain error calling for resentencing.
On this record, we believe that Abney’s request to “say
something” sufficed to preserve his objection. But whether we
review Abney’s claim as preserved by his request to speak in
district court, or as raised for the first time on appeal, so
scrutinized only for plain error, see Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-36 (1993), we
conclude that vacatur and remand is required.
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1. Abney Preserved His Claim
Considered in context, Abney’s request to speak sufficed
to preserve his allocution claim. Rule 51(b) provides that “[a]
party may preserve a claim of error by informing the court . . .
of [1] the action the party wishes the court to take, or [2] the
party’s objection to the court’s action and the grounds for that
objection.” Fed. R. Crim. P. 51(b). “By ‘informing the court’
of the ‘action’ he ‘wishes the court to take,’ a party ordinarily
brings to the court’s attention his objection to a contrary
decision.” Holguin-Hernandez v. United States, 140 S. Ct.
762, 766 (2020) (citation omitted); see also United States v.
Tate, 630 F.3d 194, 197 (D.C. Cir. 2011) (“[C]laims of error
are preserved when a party informs the district court of the
requested action, or of the objection and the grounds therefor.”
(citing United States v. Wilson, 605 F.3d 985, 1022 (D.C. Cir.
2010))). Once a party has asked the court to take action the
party believes is legally required, further “exceptions to the
district court’s rulings or orders are unnecessary” because the
“point of requiring objections to be made at the time of
sentencing is to afford the district court the opportunity to
consider them, not to clutter the proceedings with needless
objections after the district court has ruled.” Tate, 630 F.3d at197 (citing In re Sealed Case, 439 F.3d 685, 690 n.2 (D.C. Cir.
2003)); see also United States v. Rashad, 396 F.3d 398, 401
(D.C. Cir. 2005).
Abney preserved his claim under the first clause of Rule
51(b), as interpreted in Holguin-Hernandez. The dynamics of
sentencing support that result: After a defendant tries
unsuccessfully to be heard at sentencing, it is unrealistic and
even counterproductive to require him to “say, in effect, ‘now
that you have imposed sentence, let me share some mitigating
circumstances you may wish to consider in meting out my
punishment.’” United States v. Barnes, 948 F.2d 325, 331 (7th
9
Cir. 1991). Abney preserved his claim when he asked during
sentencing for a chance to say something and the district court
denied his request. The defense was under no further
obligation to state an objection after the sentencing was
complete.
The Supreme Court in Holguin-Hernandez held that
counsel’s request for a sentence shorter than the one the court
ultimately imposed preserved defendant’s claim under
18 U.S.C. § 3553(a) that the sentence was excessive. See 140
S. Ct. at 766. The Court stressed that trial judges, “having in
mind their ‘overarching duty’ under § 3553(a), would
ordinarily understand” that such a defendant “was making the
argument . . . that the shorter sentence would be ‘sufficient’ and
a longer sentence ‘greater than necessary’ to achieve the
purposes of sentencing” under § 3553(a). Id. (quoting Pepper
v. United States, 562 U.S. 476, 493 (2011)). Here, we deal with
denial of presentence allocution, a right to which it is likewise
fair to assume district court judges during sentencing “hav[e]
in mind.” Indeed, many—if not most—trial judges, including
the judge in this case, see 8/2/10 Sentencing Hearing Tr. at
10:23-24 (AA 37), have a standard script or template that they
adapt or reference as a prompt during sentencing proceedings
to ensure that they cover all the requisite points in each
sentencing. A defendant’s opportunity to allocute is—or
should be—a standard item on such a checklist. See
Bustamante-Conchas, 850 F.3d at 1133 (“Of course, the best
practice is for the district court in its trial manuals and other
memory prompts to always offer defendants the opportunity to
allocute on their own behalf.”). Indeed, the same judge that
sentenced Abney in 2019 previously emphasized the court’s
“practice to hear from . . . the defendant himself if he wishes to
address the court,” 8/2/10 Sentencing Hearing Tr. at 2:15-17
(AA 29), and noted the defendant’s “right to address the court”
before the court “would decide” his sentence, 4/9/13 Motion
10
Hearing Tr. at 17:2-3 (AA 56). When the judge resentenced
Abney in 2016 on remand from this court, Abney thanked the
court for his opportunity to speak, to which the judge
responded, “You’re entitled to it. You’re absolutely entitled.”
5/20/16 Resentencing Hearing Tr. at 30:6-7 (AA 106). And,
most relevant here, the same judge asked if Abney wished to
speak before revocation of his supervised release and
sentencing in 2017. 5/15/17 RH Tr. at 7:25-8:8 (AA 124-25).
At the 2019 hearing, however, the court began to impose
the sentence without inviting allocution. Abney interrupted,
“May I say something?” 11/8/19 RH Tr. at 8:25 (AA 137).
Given the context and timing of his request, it was evident
Abney was invoking his right to “make a statement” on his own
behalf prior to sentencing. Fed. R. Crim. P. 32.1(b)(2)(E)
(requiring that every defendant be given “an opportunity to
make a statement and present any information in mitigation”).
That request to “say something” as the district court began to
deliver sentence sufficed to “bring[] to the court’s attention”
his entitlement to presentence allocution, thereby preserving
his claim. Holguin-Hernandez, 140 S. Ct. at 766. And, just as
the claim in Holguin-Hernandez was not forfeited where the
judge “asked counsel if there was ‘[a]nything further,’” in
response to which “Counsel said that there was not,” id. at 765,
Abney’s counsel did not forfeit his allocution claim by
responding to the district court’s general query for “[a]ny other
requests” by saying, “No other requests,” 11/8/19 RH Tr.
at 10:9-10 (AA 139). We do not require defendants or their
counsel to invoke magic words or talismanic language, or to
reassert in the form of an exception to the court’s decision a
claim already preserved when the party asked the court for the
desired judicial action. See Fed. R. Crim. P. 51(a). A party’s
request for the desired action that reasonably apprises the
district court of the error and gives the court an opportunity to
correct it is alone enough. See Tate, 630 F.3d at 197-98. Once
11
Abney asked to speak at sentencing, his claim was preserved
without further need to make exception after the district court
ruled.
In applying Holguin-Hernandez, we acknowledge
distinctions between that case and this one. The Court there
held that a simple request for a shorter sentence preserved for
appeal the claim that the sentence was excessive in violation of
18 U.S.C. § 3553(a), but noted that it was not thereby deciding
“what is sufficient to preserve a claim that a trial court used
improper procedures in arriving at its chosen sentence.”
Holguin-Hernandez, 140 S. Ct. at 767; accord id. (Alito, J.,
concurring). The Court’s caveat was evidently sparked by the
concern that a general request for a lower sentence might not
suffice, for example, to bring to a sentencing court’s attention
procedural errors in Sentencing Guidelines calculations. Only
four years earlier, the Court in Molina-Martinez v. United
States observed that “[t]he Guidelines are complex, and so
there will be instances when a district court’s sentencing of a
defendant within the framework of an incorrect Guidelines
range goes unnoticed,” and held that the defendant, who had
“failed to object to the miscalculation,” was entitled to
appellate review only for plain error. 136 S. Ct. 1338, 1342-43
(2016); see also Rosales-Mireles v. United States, 138 S. Ct.
1897, 1904 (2018) (“Given the complexity of the calculation
[of Sentencing Guidelines ranges], district courts sometimes
make mistakes. It is unsurprising, then, that ‘there will be
instances when a district court’s sentencing of a defendant
within the framework of an incorrect Guidelines range goes
unnoticed’ by the parties as well, which may result in a
defendant raising the error for the first time on appeal.”
(quoting Molina-Martinez, 136 S. Ct. at 1343)).
This case involves a claim of procedural error, but because
the procedural right involved is a requisite of any sentencing
12
and its omission is easy to detect, we treat it as akin to the
straightforward claim of excessive sentence in Holguin-
Hernandez and unlike the buried flaws in Sentencing-
Guidelines calculations described in Molina-Martinez and
Rosales-Mireles that may call for more specific and detailed
objections to be effectively preserved under the first clause of
Rule 51(b). District courts have a clear, well-established,
affirmative obligation to invite defendants to exercise their
right to speak on their own behalf before sentencing. See Fed.
R. Crim. P. 32(i)(4)(A)(ii), 32.1(b)(2)(E). Against that
backdrop, it is difficult to envision a request by a defendant to
be heard at sentencing that would not suffice under Rule 51(b)
to “inform[]the court” of the nature of the claim. There was no
more need here for Abney to specify that he sought to
“allocute” than there was for Gonzalo Holguin-Hernandez to
specify that he sought a sentence that was no “greater than
necessary” under 18 U.S.C. § 3553(a), or to specify that he
took exception to the sentence the court imposed as
“unreasonable.” Holguin-Hernandez, 140 S. Ct. at 766. In the
context of a revocation hearing, it would be apparent to a court
that, when Abney asked, “May I say something?” he was
invoking his right under Rule 32.1(b)(2)(E) to speak on his
own behalf before being sentenced.
We accordingly review Abney’s claim of error de novo.
But because this is our court’s first application of Holguin-
Hernandez, and the error here is sufficiently clear, we will also
explain below why analysis of the claim as unpreserved would
also require vacatur and remand.
2. The District Court Erred in Denying Abney’s Right to
Allocute
A defendant has a right, codified in the Federal Rules of
Criminal Procedure, to address the sentencing judge before
13
imposition of a sentence. See Fed. R. Crim. P. 32(i)(4)(A)(ii).
“[T]rial judges should leave no room for doubt that the
defendant has been issued a personal invitation to speak prior
to sentencing.” Green v. United States, 365 U.S. 301, 305
(1961) (plurality opinion) (Frankfurter, J). The allocution right
is deeply rooted in our legal tradition. See Couch v. United
States, 235 F.2d 519, 523 (D.C. Cir. 1956) (en banc). “As early
as 1689, it was recognized that the court’s failure to ask the
defendant if he had anything to say before sentence was
imposed required reversal.’’ Green, 365 U.S. at 304. The
simple procedural step serves several interrelated purposes,
including eliciting information relevant to mitigation or mercy,
demonstrating to the public that the courts treat criminal
defendants in an individualized, fair, and openminded manner,
and simply acknowledging the defendant’s humanity. See
Bustamante-Conchas, 850 F.3d at 1136-37; United States v.
Daniels, 760 F.3d 920, 924, 926 (9th Cir. 2014); De Alba
Pagan, 33 F.3d at 129; Barnes, 948 F.2d at 328; see also
generally Kimberly A. Thomas, Beyond Mitigation: Towards
a Theory of Allocution, 75 Fordham L. Rev. 2641, 2666-74
(2007) (arguing that allocution is important not only for
potential mitigation, but also for humanizing the defendant);
Jonathan D. Casper, Tom R. Tyler, and Bonnie Fisher,
Procedural Justice in Felony Cases, 22 Law & Soc’y Rev. 483,
487-88 (1988) (summarizing studies that indicate “litigants
who receive unfavorable outcomes but perceive that they have
been able to express their views fully and to have them
considered may be more satisfied with the overall experience
than those who receive more favorable outcomes yet perceive
that they have had less opportunity to have their view expressed
and considered”). The intervening years since the Supreme
Court decided Green have brought profound transformations in
criminal procedure, but “[n]one of these modern innovations
lessens the need for the defendant, personally, to have the
opportunity to present to the court his plea in mitigation,” for
14
the “most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence,
speak for himself.” 365 U.S. at 304.
The right of presentence allocution applies to sentences
imposed for revocation of supervised release just as it does to
initial sentencing. See Fed. R. Crim. P. 32(i)(4)(A)(ii) and
32.1(b)(2)(E); Daniels, 760 F.3d at 924; United States v.
Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008); United States v.
Carruth, 528 F.3d 845, 846-47 (11th Cir. 2008); United States
v. Pitre, 504 F.3d 657, 661-62 (7th Cir. 2007). Rule 32
explicitly requires allocution “[b]efore imposing sentence” in
an original sentencing proceeding, Fed. R. Crim. P.
32(i)(4)(A)(ii), whereas Rule 32.1 provides in more summary
fashion that a person facing revocation of supervised release
“is entitled to” an “opportunity to make a statement and present
any information in mitigation,” Fed. R. Crim. P. 32.1(b)(2)(E).
The government suggests that, because “Rule
32.1(b)(2)(E) does not specify when the opportunity to speak
and provide mitigating information must occur,” and “the court
ultimately did invite appellant to speak,” it is not entirely clear
whether the district court erred in failing to invite the defendant
to speak “before the district court announces its intended
sentence.” Appellee Br. 15-16 (emphasis added). We are
unpersuaded. Despite the rules’ wording differences, we hold
that the same allocution right applies whether the context is
initial or revocation sentencing. The timing of the opportunity
to allocute—before the sentence is imposed—is widely and
appropriately recognized as essential both to the reality and
public perception that the judge will fairly consider it before
deciding on the sentence. The government identifies no
persuasive reason why the Rules’ drafters would have tacitly
intended that the allocution “opportunity” to which the
defendant is “entitled” at revocation, per Rule 32.1, differ in
15
that key respect from the opportunity described in Rule 32. The
Advisory Committee Notes to the 2005 Amendments
addressed a circuit split over whether the Rule 32 allocution
requirements should be incorporated into Rule 32.1, explaining
that “[t]he amended rule recognizes the importance of
allocution and now explicitly recognizes that right at Rule
32.1(b)(2) revocation hearings, and extends it as well to Rule
32.1(c)(1) modification hearings where the court may decide to
modify the terms or conditions of the defendant’s probation. In
each instance the court is required to give the defendant the
opportunity to make a statement and present any mitigating
information.” Fed. R. Crim. P. 32.1 advisory committee’s note
(2005 amend.). The differing syntax of the two rules reflects
that the primary statement of the right appears in Rule 32, with
Rule 32.1 confirming its applicability at revocation or
modification sentencing. If allocution is to serve its purposes,
the opportunity to allocute must in either context precede the
sentencing decision.
The government contends that “[i]t is not clear that
‘statement’ and ‘information in mitigation’” as used in Rule
32.1 “even refer to sentencing.” Appellee Br. at 14. Because
the subsection is titled “Revocation Hearing,” the government
speculates that “the text of Rule 32.1(b)(2)(E) could reasonably
be read as referring not to a right of sentencing allocution but
instead to a defendant’s right to present mitigating evidence to
convince the court that any violation does not warrant
revocation.” Id. Abney responds that “[i]t is not clear what the
government means by this; when a court revokes a defendant’s
supervised release, it is sentencing him,” so Rule 32.1
“guaranteed Mr. Abney the right to allocute before the court
revoked his release and replaced it with prison.” Reply Br. at
7. We agree with Abney. Indeed, the government’s argument
would appear to cut the other way: If we were to read Rule
32.1 to address only whether or not to revoke in the first place,
16
revocation resentencing would have to proceed under Rule 32,
which is not by its terms limited to initial sentencing but applies
generally to “Sentencing and Judgment.” Whether under Rule
32 or Rule 32.1, a court sentencing a defendant to confinement
upon revocation of supervised release must offer the defendant
a presentence opportunity to allocute.
There is no dispute that the district court did not invite
Abney to speak before it sentenced him to prison. The
government suggests that the court cured the error by allowing
Abney to speak afterwards. Perhaps a belated opportunity to
allocute could be effective if, for example, the court openly
acknowledged its lapse during the sentencing proceeding,
explained that it would treat its announced sentence as
provisional only, reopened the proceeding and invited the
defendant to speak with assurances that it would give full
consideration to the defendant’s statements, and then stated
reasons for its sentence that accounted for what the defendant
said. See generally United States v. Margiotti, 85 F.3d 100,
103 (2d Cir. 1996) (holding error cured); but see Gonzalez, 529
F.3d at 97-98 (holding error uncured); United States v. Luepke,
495 F.3d 443, 450 (7th Cir. 2007) (same); Barnes, 948 F.2d at
331 (same). An on-the-spot remedy for denial of presentence
allocution is certainly preferable to vacatur and remand. But
for a correction to be effective, the district court must make
unmistakably clear that it has set aside the announced sentence
and heard from the defendant with an open mind. After all,
“neither a defendant nor observers in the courtroom are likely
to believe that an opportunity to try to talk a judge out of a
sentence already imposed is as effective as an opportunity to
speak before a sentence has been imposed.” Gonzalez, 529
F.3d at 98.
Assuming a court may in some circumstances correct its
error by promptly recognizing its lapse and, in effect,
17
rewinding the proceeding, that is not what happened in this
case. While the district court eventually permitted Abney to
speak, it did not acknowledge its error in failing to do so
presentence. The court did not set aside its previous sentence
or announce that it would treat it as only a proposal until it had
heard from Abney. Once Abney spoke, asking for placement
in a halfway house rather than prison to support his
rehabilitation and allow him to continue to work, and offering
mitigating circumstances for his violation of supervised
release, the court did not consider how Abney’s statement
might bear on the sentence. Rather, the court treated its
exchange with Abney as a chance for Abney to ask questions
and obtain information about a fait accompli—information that
the court by and large told Abney he should seek from his
counsel. 11/8/19 RH Tr. at 13:18-23 (AA 142) (“COURT: You
can talk with your counsel. DEFENDANT: I’m talking to you.
You’re doing it. You’re sending me to jail.”); id. at 16:10-11
(AA 145). The closest the court came to engaging with
Abney’s arguments was in an aside directed to Abney’s
counsel, commenting “I’m sure . . . you have a very clear
recollection as to . . . how successful he was” in his previous
halfway house placement. Id. at 15:17-19 (AA 144).
3. The Error Requires Vacatur Even If Unpreserved
Even if Abney’s request to be heard at sentencing were not
sufficiently clear to count under Rule 51(b) as “informing the
court” of the error, the district court’s error warrants vacatur
for resentencing. For an unpreserved error to count as “plain
error” under Rule 52(b), the error must be clear, affect
substantial rights, and impair the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 734-36.
The error here is clear. Although neither the Supreme
Court nor this one has had prior occasion to apply Rule
18
32.1(b)(2)(E), “[e]ven absent binding case law . . . an error can
be plain if it violates an ‘absolutely clear’ legal norm, ‘for
example, because of the clarity of a statutory provision.’” In re
Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (quoting
United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)). As
already discussed, the right to presentence allocution has deep
roots in our jurisprudence, and there is no serious argument that
it does not apply to the imposition of a sentence upon
revocation of supervised release just as it does to initial
sentencing. The rule is straightforward. Every court to have
decided the issue has held that Rule 32.1 guarantees
defendants’ right to allocute before sentence. The government
has identified no case from any circuit—nor have we—that
applied plain-error review and determined that an uncorrected
failure to invite a defendant to allocute before imposing a
sentence was not clear error under the first step of Olano.
To show prejudice on plain-error review, a defendant
ordinarily must identify “a reasonable likelihood that the
sentencing court’s obvious errors affected his sentence.” In re
Sealed Case, 573 F.3d 844, 852 (D.C. Cir. 2009) (quoting
Olano, 507 U.S. at 734). We assume without deciding that we
require a case-specific showing of prejudice in allocution
cases. But see, e.g., Olano, 507 U.S. at 735 (noting that certain
errors may be presumed prejudicial); Luepke, 495 F.3d at 451(presuming prejudice because it “would be almost impossible
to determine whether . . . a defendant’s statement, that was
never made, would have altered the conclusions of the
sentencing court”); see also Bustamante-Conchas, 850 F.3d at
1138-39 (surveying circuit law presuming allocution errors are
prejudicial, and adopting a “more precise” rule that “a
defendant who shows he has been denied the right to allocute
has met his burden of demonstrating prejudice absent some
extraordinary circumstance”). The potential effect of a denial
of allocution is not easily reduced to argument among lawyers,
19
further vexing the unavoidably counterfactual task of
establishing prejudice from an omission. At most, the
“somewhat lighter” prejudice requirement that we apply in the
context of sentencing error, United States v. Anderson, 632
F.3d 1264, 1271 (D.C. Cir. 2011), applies to an allocution
claim. Some courts conclude that allocution errors can be
nonprejudicial only if the defendant received the lowest
possible sentence. See, e.g., Bustamante-Conchas, 850 F.3d at
1140; Daniels, 760 F.3d at 925; Carruth, 528 F.3d 847 n.4.
Needless to say, that is not the case here, where the court had
full discretion and sentenced Abney more harshly than even the
government requested. Had the court asked Abney to speak
and given due consideration to his statement before it decided
upon the sentence, we believe there is a reasonable likelihood
the sentence would have been more forbearing and better
tailored to Abney’s circumstances. The error here accordingly
was prejudicial.
Finally, with the elements of plain error satisfied here, we
also conclude that we should exercise our discretion to correct
the error. Plain error calls for correction where it would
otherwise “seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736.
Imposing a criminal sentence is among the gravest powers
a government exercises over its people, and a defendant’s
presentence allocution to the court is a significant human
encounter. The defendant’s right to speak, and the court’s
corresponding “duty to listen and give careful and serious
consideration” to what the defendant says, Daniels, 760 F.3d at
926 (quoting United States v. Mack, 200 F.3d 653, 658 (9th Cir.
2000)), provide essential recognition of the seriousness of the
event for the sentenced individual, and for the broader
community in whose name the sentence is imposed. A
20
defendant, speaking personally to the court and the public, may
evoke mercy.
Even where the judge’s sentence remains unaffected,
ensuring the defendant’s right to make a statement bolsters the
integrity of the judicial process by having the judge listen to
and thereby openly recognize the defendant as a fellow human
being whose liberty is at stake. Allocution disrupts the reality
or appearance of “assembly-line justice,” Barnes, 948 F.2d at
331, and thus its denial is no less threatening to the integrity of
our judicial system—and, indeed, perhaps more so—when the
sentence appears to be a foregone conclusion. Abney’s brief
points to hearing transcripts and contends they show that “the
district judge displayed certainty about the sentence he
imposed—and no openness to being influenced by what Mr.
Abney had to say.” Appellant Br. 12. Our own review of those
transcripts shows that Abney’s inability to be heard and make
his circumstances understood by the person “sending me to
jail” evidently amplified his frustration with a process and
sentence that he perceived “[was] not helping my situation.”
11/8/19 RH Tr. at 13:20 (AA 142); id. at 12:14 (AA 141). We
need not credit counsel’s characterization or the bases of
Abney’s frustration to view them as some evidence of risk to
the parties’ and the public’s perception of the court as
openminded and fair.
In the ordinary course of criminal proceedings, defendants
themselves typically remain silent. The prevalence of plea
bargaining and, when cases do go to trial, the reality that few
criminal defendants testify, mean that the judge and the public
rarely hear directly from the person being prosecuted. We do
not question those constraints in underscoring the importance
of allocution as a chance for the defendant’s own voice and
perspective to be heard. In the words of one judge with decades
of sentencing experience, “[p]ermitting a defendant to speak
21
reaffirms human dignity in the face of severe punishment.” D.
Brock Hornby, Speaking in Sentences, 14 Green Bag 2D 147,
154 (2011). Given the importance of the allocution right, there
may be few, if any, cases in which its unremedied denial would
not undermine the fairness of the judicial process. The
integrity of the process afforded this defendant requires vacatur
and remand here.
4. Abney’s Request for Reassignment
We deny Abney’s request to reassign the case to a different
judge for resentencing. Abney seeks remand to a different
district judge under 28 U.S.C. § 2106, which gives us the
power to direct reassignment on remand “as may be just under
the circumstances.” See Liteky v. U.S., 510 U.S. 540, 554
(1994). Reassignment is a remedy reserved for “the unusual
case.” United States v. Wolff, 127 F.3d 84, 88 (D.C. Cir. 1997).
This case is assigned to an experienced district judge. He has
previously recognized that Abney is “absolutely entitled” to an
opportunity to allocute. See p. 10, supra. We expect that the
judge will be able to “put[] out of his [] mind [his] previously-
expressed views” about the appropriate sentence, approach
Abney with a clean slate and an open mind, invite him to speak
before imposing the sentence, and take his statements into
account in resentencing him. Id.
* * *
Because the district court erred in denying Abney’s right
of presentence allocution, the objection was preserved and,
even if it were not, the error was plain, we vacate the sentence
and remand to the district court for resentencing in conformity
with Rule 32.1.
So ordered.