United States v. Michael Barnett

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0272n.06
No. 09-6541
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 12, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
MICHAEL BARNETT, )
)
Defendant-Appellant. ) OPINION
)
BEFORE: BOGGS and WHITE, Circuit Judges; BERTELSMAN, District Judge.*
PER CURIAM. Defendant-Appellant Michael Barnett (“Barnett”) appeals the 60-month
sentence imposed by the district court following Barnett’s guilty plea to a charge of conspiracy to
distribute hydrocodone.
Because the sentence imposed by the district court was both procedurally and substantively
reasonable, we AFFIRM.
I.
On May 10, 2009, Barnett and co-defendant, Michael Newton (“Newton”), were working
as subcontractors on a floor resurfacing project at a Huntsville, Alabama pharmaceutical company.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Newton obtained access to the hydrocodone area, and the two men stole the contents of a barrel
containing 85,000 hydrocodone tablets, which they agreed to split between them.
On May 15, 2009, the United States filed a criminal complaint against Barnett charging him
with a violation of 21 U.S.C. § 841(a)(1) for conspiring with Newton to knowingly and intentionally
possess with the intent to distribute hydrocodone, a Schedule III controlled substance. (R. 1). On
June 3, 2009, Barnett was indicted on that charge. (R. 22).
In September 2009, Barnett pled guilty to this charge without a plea agreement.1 (R. 36).
The district court set Barnett’s sentencing for December 14, 2009. (R. 37).
During his pretrial detention, Barnett was held in the Robertson County Detention Center
(“RCDC”) in Springfield, Tennessee, a county jail under contract to house federal pretrial detainees.
Between June 2009 and November 11, 2009, Barnett committed numerous infractions at the
RCDC involving racial and sexual harassment, property damage, and assault. Barnett was extremely
disruptive, kicking and banging on walls until physically restrained; he intentionally broke five
sprinkler heads, at a cost of $300 apiece; he intentionally flooded his cell by clogging the toilet; he
made multiple racial slurs to an African-American guard and told him he would “blow his fucking
head off;” he harassed female guards by writing notes inquiring about the color of their underwear
and the appearance of their pubic hair; he was found with contraband, including a razor in his
mouth; and he smeared his feces on the wall of his cell. (R. 72, Transcript of Sentencing Hearing,
7-14, 35-38; R. 65, Attachment 1).
On November 13, 2009, the district court sentenced Barnett’s co-defendant, Newton, to 43
months’ imprisonment, departing upward from the Guidelines range of 30-37 months due to the
1
Newton also pled guilty.
large amount of hydrocodone pills involved in the offense. See USA v. Newton, M.D. Tenn. Case
No. 1:09-cr-00005, R. 53.
On November 18, 2009, the Government sent Barnett’s counsel copies of the incidents
reports detailing Barnett’s behavior at the RCDC, noting that the Government would use the
information at Barnett’s sentencing.
The Presentence Investigation Report (“PSR”) prepared by U.S. Probation calculated
Barnett’s Guidelines range as 30 to 37 months. (PSR ¶ 54). The offense level computation did not
include any enhancements. (Id. ¶¶ 15-23). Neither party objected to the PSR.
On December 14, 2009, the Government filed a Motion for Upward Departure or Upward
Variance based on the quantity of drugs involved as well as Barnett’s behavior while incarcerated
at the RCDC, attaching copies of the incident reports and documents pertaining to the latter. (R. 65).
This motion stated that it was based on both Sections 5K2.0 and 2D1.1, Application Note 16, of the
United States Sentencing Guidelines, as well as on 18 U.S.C. § 3553(a). (Id.) As to Barnett’s post-
conviction conduct, the Government argued that his racially and sexually harassing behavior toward
jail staff, his vandalism of jail property, and his assault of a jailer all warranted an upward departure
or variance in his sentence, and that a sentence of 60 months’ imprisonment was appropriate. (Id.)
Barnett filed his own Sentencing Memorandum, seeking a downward variance at or below 30
months on the grounds that he was less culpable than his co-conspirator and because he had endured
harsh conditions at the RCDC. (R. 62).2
2
In a separate case, a different federal judge conducted an inquiry into the conditions of confinement
at the RCDC, ultimately concluding that the conditions there would rise to the level of deliberate
indifference. See United States v. Tellis Williams, M.D. Tenn. Case No. 3:09-cr-00090. Based in
part on the ruling in Tellis Williams, Barnett was transferred to a different facility. Barnett also
points to an altercation between him and a corrections officer at the RCDC as reasons for his unruly
behavior, although the Government disputes Barnett’s account of the altercation.
The district court conducted Barnett’s sentencing hearing on December 15, 2009. (R. 72).
In its opening remarks, the court stated: “Before the Court sentences you, you have the right to
address the Court, and the Court will be pleased to hear from you.” (R. 72 at 4). The court then
heard testimony from several RCDC jailers regarding their interactions with Barnett at the jail and
his violent and abusive conduct. (R. 72 at 7-14, 35-38).
The district court also heard testimony from an investigator from the Drug Enforcement
Administration, who testified regarding the street value of hydrocodone tablets and the escalating
abuse of prescription drugs in the United States and in Tennessee in particular. (R. 72 at 49-56).
Finally, the defense put Barnett’s sister on the stand. She testified that their father had been
imprisoned and had tried to commit suicide; that Barnett had difficulty readjusting after serving
twelve years in prison in Alabama; that he had a volatile relationship with his mother, who had
kicked him out of her house after he was released from prison; that Barnett was troubled by the fact
that he had no relationship with his twelve-year-old daughter; and that she had recommended that
Barnett get mental-health treatment. (R. 72 at 57-69).
The court then asked whether there was any further proof on behalf of the defendant, and
Barnett’s attorney responded:
No, Your Honor. Mr. Barnett, of course, would like to address the Court prior to imposition
of sentencing, but no additional proof.
(R. 72 at 69).
The court then heard argument from the Government regarding its motion for an upward
departure or variance. (R. 72 at 69-72). Barnett’s counsel argued for a lesser sentence of 30 months
based on the conditions at the RCDC, which he stated had exacerbated Barnett’s mental-health
problems. (R. 72 at 72-75).
The Government gave a brief rebuttal, after which the following colloquy occurred:
THE COURT: Well, I’m going to grant the government’s motion for an upward
departure and an upward variance. The Court finds that, because the offense here
involves two times the maximum contemplated by the sentencing guidelines, that that is
a factor that the sentencing guidelines did not consider, and, therefore, that is one basis.
The Court considers also the testimony of the agent that it is the – that these types of
prescription drugs represent the largest amount of drug abuse that can cause serious harm
to society and to individuals. The Court is going to grant the variance under 3553(a)
because the Court has to consider, among other things, the defendant’s personal
characteristics and personal history. And the Court will address that further in
explaining its sentence.
You have the right to address the Court, Mr. Barnett, and the Court will be pleased to
hear from you.
MR. MUNDY: Mr. Barnett has decided not to make a statement to the Court, Your
Honor,
THE COURT: All right.
(R. 72 at 78-79) (emphasis added).
The court then pronounced a sentence of 60 months’ imprisonment, followed by three years
of supervised release and other standard conditions. (R.72 at 79-80). The court gave the following
explanation for this sentence:
In imposing this sentence, the Court normally considers post-offense rehabilitation, and,
therefore, the Court also considers his post-offense conduct. That conduct includes repeated
threats to kill people, racial slurs, extremely vulgar sexist remarks, physical assaults,
damages to property. And the Court believes, in looking at the defendant’s criminal history,
the first degree robbery conviction that he had, the amount of drugs that he – that were taken
in this offense, and his post-offense conduct, in the Court’s view shows a consistent
disregard of the welfare and rights and safety of others. And that is the reason the Court
believes that the maximum sentence is required.
Although the Court recognizes he has a prior mental history, the Court would have to have
expert testimony to justify what he did during the period of his incarceration in the County
Jail as being caused by that conduct. The last diagnosis was of a depressive disorder. All
of these acts were highly aggressive and violent acts, which would appear to be inconsistent
with the diagnosis of depression.
So those are the reasons for the Court’s imposition of the [sentence]. The Court strongly
recommends that this defendant be transferred as soon as practicable to the Butner facility.
The Court believes he is in serious need of mental health for an assortment of problems as
reflected by the prior diagnosis, as well as the extreme conduct that he engaged in while he
was in the County Jail.
(R. 72 at 80-81).
The court then asked counsel if there were any procedural or substantive objections to the
sentence, and Barnett’s counsel stated:
Your Honor, under Bostik [sic] and the cases that have come down since, I object to the
sentence both on procedural and substantive reasonableness grounds. I object too – Your
Honor expressed, enumerated, reasons for a downward variance I set forth in my sentencing
memorandum. And I object to Your Honor’s failure to provide notice of an upward variance
prior to the sentencing hearing today.
(R. 72 at 81).
The court responded:
Well, the procedural part of this was that the government filed a motion for an upward
departure. There was no request for a continuance. The downward departure motion
is denied. The Court does not find that any other prisoner in the County Jail, who was
subjected to the same conditions of confinement, engaged in any comparable behavior as to
this defendant.
. . . [T]his defendant has a prior armed robbery conviction, he engaged in post-events
conduct that include death threats, include racial slurs, include various vulgar sexual
statements toward the custodians there. And the Court believes that none of that conduct
would warrant a downward departure.
(R. 72 at 81-82) (emphasis added).
On December 18, 2009, the district court filed its Statement of Reasons for Barnett’s
sentence. (R. 70). On the second page, in the section titled “Departure,” the court checked the box
stating that the sentence departed above the guideline range, and under “Reasons for Departure” the
court checked three boxes: (1) “5K2.0 Aggravating or Mitigating Circumstances”; (2) “5K2.8
Extreme Conduct”: and (3) “Other.” (Id.).
In the narrative Statement of Reasons on the third page, the court stated:
The Court grants the government’s motion for an upward variance because of the amount
of drugs involved. Because the offense here involves twice the amount of drugs
contemplated by the sentencing guidelines, the Court believes it should take this fact into
account. The Court also notes evidentiary testimony that the drugs involved here are one of
the most pernicious types of drug abuse at the current time. Under section 3553(a), the
Court has taken into consideration the relevant factors, including the quantity of drugs
and post-offense conduct such as threats to kill others, damage to property, racial slurs,
and vulgar sexual harassment. The Court sees defendant’s conduct and past criminal
history (including violent conduct) as representative of a persistent disregard to the rights,
property, welfare, and safety of others, and thus the maximum sentence is required here.
Although the Court recognizes the defendant’s past mental health history, the Court would
require expert testimony regarding the defendant’s recent behavior in the county jail to be
tied to past mental health diagnoses. These factors justify the upward variance, and the
Court finds that this sentence is the appropriate sentence for this defendant, and is necessary
to effectuate the goals of sentencing.
(R. 70 at 3) (emphasis added).
The section titled “Additional Reasons for Departing From the Guideline Range” was left
blank. (Id.).
Barnett filed a timely notice of appeal on December 22, 2009. (R. 71).3
II.
This court reviews criminal sentences for procedural and substantive reasonableness under
the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
reasonableness test applies equally to sentences that are the product of departures as well as
variances. United States v. Vowell, 516 F.3d 503, 513 (6th Cir. 2008) (citation omitted).
Other standards of review that apply to specific issues raised by Barnett are discussed in the
following analysis.
III.
Barnett’s first argument on appeal is that the district court, in sentencing him above the
Guidelines range, imposed a “departure” of which it failed to give him reasonable notice.
“Departures” and “variances” are, of course, distinct concepts:
3
Newton also appealed, but on October 4, 2011, he filed a motion to voluntarily dismiss his appeal,
which we granted.
A Guidelines “departure” refers to the imposition of a sentence outside the advisory range
or an assignment of a criminal history category different than the otherwise applicable
category made to effect a sentence outside the range. Importantly, a departure results from
the district court’s application of a particular Guidelines provision, such as § 4A1.3 or § 5,
Part K. A “variance” refers to the selection of a sentence outside the advisory Guidelines
range based upon the district court’s weighing of one or more of the sentencing factors of
[18 U.S.C.] § 3553(a). While the same facts and analyses can, at times, be used to justify
both a Guidelines departure and a variance, the concepts are distinct.
United States v. Borden, 365 F. App’x 617, 619 n.2 (6th Cir. 2010) (citation omitted).
This court has “‘not required that district courts carefully distinguish between whether the
decision to deviate from the advisory Guidelines range is based on a departure or variance.’” Id. at
621 (quoting United States v. Herrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009)). Thus, the district
court’s “choice of vocabulary is not dispositive.” Id. Instead, this court “must examine the
transcript of the sentencing hearing to determine whether the court was aware of the proper
sentencing procedure and its authority to vary from the Guidelines range.” Id.
With respect to notice of a departure, Fed. R. Crim. P. 32(h) provides:
Notice of Possible Departure from Sentencing Guidelines. Before the court may depart
from the applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice must specify any
ground on which the court is contemplating a departure.
Fed. R. Crim. P. 32(h) (emphasis added).
According to the Supreme Court, Rule 32(h)’s notice requirement applies to Guidelines-
based departures but not to variances under § 3553(a). Irizarry v. United States, 553 U.S. 708, 714-
16 (2008).
The district court here admittedly used both departure and variance-based language in its oral
pronouncements during Barnett’s sentencing hearing and, indeed, the Government’s motion for an
upward deviation cited both the Guidelines and § 3553(a) in arguing for a higher sentence. (R. 65).
Nonetheless, a close reading of the sentencing transcript strongly suggests that, to the extent
that the court based the upward deviation on the quantity of the drugs involved, it was relying on
U.S.S.G. §§ 5K2.0(2)(A) and (3), which address departures based on circumstances “not adequately
taken into consideration” in determining the Guidelines range, as well as on Application Note 16
to U.S.G. § 2D1.1, which pertains to upward departures based on drug quantities which exceed the
amounts contemplated by the offense levels for the controlled substance at issue.4 The court stated:
Well, I’m going to grant the government’s motion for an upward departure and an upward
variance. The Court finds that, because the offense here involves two times the maximum
amount contemplated by the sentencing guidelines, that that is a factor that the sentencing
guidelines . . . did not consider, and, therefore, that is one basis.
(R. 72 at 78) (emphasis added). The emphasized language, of course, tracks the above-cited
Guidelines language for upward departures.
To the extent that the district court varied upward based on the testimony regarding the
prescription drug abuse problem, Barnett’s personal history, and his post-conviction conduct at the
RCDC, the court expressly stated that it was relying on § 3553(a). (R. 72 at 78, 80-82). That aspect
of the increase thus constitutes a variance.5
4
Application Note 16 states:
In an extraordinary case, an upward departure above offense level 38 on the basis of
drug quantity may be warranted. For example, an upward departure may be
warranted where the quantity is at least ten times the minimum quantity required for
level 38. Similarly, in the case of a controlled substance for which the maximum
offense level is less than level 38, an upward departure may be warranted if the drug
quantity substantially exceeds the quantity for the highest offense level established
for that particular controlled substance.
U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n. 16 (2008).
5
Because the increase for post-conviction conduct was a variance rather than a departure, Barnett’s
argument that the court erred in relying on conduct unrelated to the offense of conviction is without
merit. See, e.g., United States v. Ragland, 226 F. App’x 507, 511 (6th Cir. 2007) (holding that
district court properly considered defendant’s recent, post-conviction assault in imposing upward
variance under § 3553(a)).
This distinction ultimately proves immaterial to Barnett’s notice argument, however,
because, even if some aspect of the upward deviation was a “departure” entitling Barnett to notice
under Rule 32(h), he received such notice by virtue of the Government’s pre-sentencing motion for
an upward departure/variance. (R. 65). That motion discussed both the drug quantity and Barnett’s
conduct at the RCDC as grounds on which the court should impose a 60-month above-the-
Guidelines sentence.
As noted, Rule 32(h) contemplates that notice may be provided through a “party’s prehearing
submission,” and this court has held that a sentencing memorandum filed by the Government which
details a defendant’s post-conviction bad behavior is sufficient to constitute notice of a possible
upward departure on those grounds as required by Rule 32(h). See United States v. Gleason, 277
F. App’x 536, 543-44 (6th Cir. 2008).6 Likewise, when the defendant knows or learns through other
means of the basis for the departure and the fact that it may be considered by the court, the notice
requirement is satisfied. See Ragland, 226 F. App’x at 510-11 (holding no violation of notice
requirement because defendant knew his assault on his attorney was being considered by the district
court, and he failed to suggest how he would have proceeded differently had he been given greater
notice); United States v. Meeker, 411 F.3d 736, 743-46 (6th Cir. 2005) (holding that defendant was
put on notice regarding victim impact issue through PSR; last-minute formal notice from court that
it may be basis for upward departure was thus sufficient).
6
The district court here stated to defense counsel when he objected to a lack of notice after the
sentence was imposed: “Well, the procedural part of this was that the government filed a motion
for an upward departure. There was no request for a continuance.” (R. 72 at 81).
IV.
Barnett’s next argument is that the district court erred by departing upward based on the
“extreme conduct” policy statement contained in U.S.S.G. § 5K2.8. (Appellant’s Principal Brief
at 25-39). That provision states:
If the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the
victim, the court may increase the sentence above the guideline range to reflect the
nature of the conduct. Examples of extreme conduct include torture of a victim,
gratuitous infliction of injury, or prolonging of pain or humiliation.
U.S. Sentencing Guidelines Manual § 5K2.8 (2008).
This provision clearly has no application to Barnett’s crime or sentence, nor did the
Government rely on it in moving for an upward departure. Further, nowhere in the sentencing
transcript does the district court mention this provision or suggest that it had any bearing on its
sentencing evaluation.
Instead, the sole basis for Barnett’s argument is that the district court checked the § 5K2.8
Extreme Conduct box on the Statement of Reasons form filed after sentencing. (R. 70 at 1). No
explanation for this notation is apparent. Nonetheless, the district court made it clear at the hearing
that the “extreme conduct” which it was considering was Barnett’s behavior while incarcerated at
the RCDC, not anything related to the commission of his underlying crime. (R. 72 at 81).
As noted, in reviewing a sentence, this court looks to the transcript of the sentencing hearing
for the substance of what the district court considered to ensure the proper procedures were
followed. Borden, 365 F. App’x at 621. Something that is effectively a typographical error should
not override this analysis.
At most, the error is harmless because, given that the substance of what the district court
considered in fashioning Barnett’s sentence did not encompass anything related to “extreme
conduct” in the § 5K2.8 sense, none of Barnett’s “substantial rights” were affected by the district
court checking the wrong box on a form.7 See United States v. Lanesky, 494 F.3d 558, 561 (6th Cir.
2007) (discussing harmless error standard).8
V.
Barnett’s next argument as to procedural unreasonableness is that the district court failed to
give a clear statement of its reasons for the sentence it imposed. However, Barnett failed to state
such an objection before the district court when given an opportunity to do so after the district court
announced its sentence. (R. 72 at 81).9 This alleged deficiency is thus reviewed only for plain error.
See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (citing United States v. Bostic, 371
F.3d 865, 872-73 (6th Cir. 2004)).
The “plain error” standard requires Barnett to show “(1) error (2) that was obvious or clear,
(3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” Id. at 386 (citation omitted) (internal quotation marks
omitted). This court will find such error only in “exceptional circumstances.” Id.
“Procedural reasonableness requires that a district court must properly calculate the
guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately
explain the chosen sentence -- including an explanation for any variance from the guidelines.”
United States v. Lanning, 633 F.3d 469, 474 (6th Cir. 2011) (citation omitted).
7
This court also has noted, with respect to conflicts regarding the length or terms of a sentence
imposed, that the oral sentence controls. See United States v. Penson, 526 F.3d 331, 334 (6th Cir.
2008) (citation omitted).
8
Barnett’s reliance on Lanesky for his argument that any error was not harmless is misplaced.
There, the district court completely failed to calculate a correct guideline range. Id. at 561. No such
mistake is alleged here.
9
Barnett’s blanket statement that he objected to the sentence “both on procedural and substantive
reasonableness grounds” is insufficient to avoid this rule, as Bostic requires that the party “clearly
articulate any objection and the grounds upon which the objection is based.” Bostic, 371 F.3d at 872
(emphasis added). See also United States v. Simmons, 587 F.3d 348, 358 (6th Cir. 2009) (requiring
an objection with enough specificity to allow district court opportunity to address claim).
The record shows that the district court gave both parties the opportunity to argue for a
sentence they believed appropriate, and the court adequately explained the reasons that it decided
to impose a sentence above the Guidelines range. The court expressly relied on the large quantity
of drugs involved in Barnett’s offense, which was twice that contemplated by the Guidelines. (R.
72 at 78). The court also noted, under § 3553(a), that he was considering Barnett’s personal
characteristics and history, including his post-conviction conduct at the RCDC and his prior
conviction for armed robbery, both of which the court opined showed “ a consistent disregard of the
welfare and rights and safety of others.” (Id. at 80). The district court further noted that Barnett
appeared to be in “serious” need of mental-health treatment, which he could obtain while
incarcerated. (Id. at 81).
Because the district court adequately explained the chosen sentence and the reasons for
deviating from the Guidelines range, Barnett’s claim of procedural unreasonableness fails. See
United States v. Johnson, 640 F.3d 195, 207-08 (6th Cir. 2011); United States v. Smith, 505 F.3d
463, 467-68 (6th Cir. 2007).10
VI.
“District courts are obligated to impose ‘a sentence sufficient, but not greater than necessary’
to fulfill the purposes of sentencing.” Lanning, 633 F.3d at 474 (quoting 18 U.S.C. § 3553(a)). “A
sentence may be substantively unreasonable if the district court chooses the sentence arbitrarily,
grounds the sentence on impermissible factors, or unreasonably weighs a pertinent factor.” Id.
(citation and internal quotations omitted).
10
United States v. Grams, 566 F.3d 683 (6th Cir. 2009), on which Barnett relies, is distinguishable
because the district court in that case did not provide any specific reason for sentencing the
defendant above the Guidelines range. Id. at 688. In contrast, the district court here explained
several relevant reasons for concluding that Barnett should be sentenced to a term of imprisonment
beyond the range.
Under the applicable abuse of discretion review, this court gives due deference to the district
court’s “‘reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the
sentence.’” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (quoting United States v.
Gall, 552 U.S. 38, 59-60 (2007)).
The district court sentenced Barnett to 60 months’ imprisonment, while the 2008 Guidelines
range was 30-37 months. The court did not base its sentence on improper factors because the
amount of drugs, criminal history, need for mental health care, and post-conviction conduct are all
relevant factors in the § 3553(a) analysis. See Lanning, 633 F.3d at 474-76.
Barnett argues that he was punished for “having reacted poorly to the harsh conditions of
confinement at the RCDC.” (Appellant’s Principal Brief at 54). The district court considered this
argument but concluded that, without expert testimony, the court had no basis on which to find a
causal connection between Barnett’s past mental history and his behavior at the RCDC. (R. 72 at
80). Under the deferential standard governing this issue, this court cannot say that such reasoning
constitutes an abuse of discretion.
Therefore, Barnett’s claim of substantive unreasonableness fails.
VII.
“If a defendant objects at sentencing to some limitation on his or her right of allocution, that
claim is reviewed de novo.” Lanning, 633 F.3d at 476 (citation omitted). Where the defendant does
not object, this court reviews the claim only for plain error. United States v. Carter, 355 F.3d 920,
926 (6th Cir. 2004) (citation omitted).
Here, Barnett concedes that he did not object during sentencing to the timing of the district
court’s invitation for him to allocute. This court thus reviews this claim for plain error. Even under
a de novo standard, however, the claim fails.
“Fed. R. Crim. P. 32(c)(3)(C) requires the court to ‘address the defendant personally and
determine whether the defendant wishes to make a statement and to present any information in
mitigation of the sentence.’” Carter, 355 F.3d at 926 (citation omitted). Denial of allocution is
reversible error. Id.
“A denial generally occurs when a defendant is not, personally and unambiguously, invited
to address the court before sentencing,” or “when a court refuses to listen to the defendant’s
statement.” Id.
Barnett argues that his right to allocute was violated because, prior to inviting Barnett to
speak, the court discussed and then granted the Government’s motion for an upward variance. This
argument is contrary to this court’s precedent.
In United States v. Wolfe, 71 F.3d 611 (6th Cir. 1995), this court held that the defendant’s right to
allocute was not violated where, prior to inviting the defendant or his attorney to speak as to
mitigation, the court overruled the defendant’s objections to the PSR with respect to the amount of
loss and acceptance of responsibility. Id. at 614-15. The Wolfe court stated:
As an initial matter, it is important to note that neither the right to allocute in Fed. R.
Crim. P. 32(c)(3)(B) & (C), nor the procedures for dealing with controverted matters
in Fed. R. Crim. P. 32(c)(1) indicate that a judge may not state his ruling on the
objections raised to the PSR, or to other sentencing matters, before the defendant or
his counsel is given a chance to speak. None of the relevant rules adopt the
chronological requirement Wolfe urges upon this Court.
...
Wolfe desires a mechanical interpretation of the right of allocution, and allocution
is not such a right.
Id. (citation omitted).
More recent cases also support this proposition. See United States v. Ellison, 336 F. App’x
483, 490 (6th Cir. 2009) (holding that defendant’s right to allocute was not violated where court
made its decision as to acceptance of responsibility and obstruction of justice without first allowing
counsel to provide oral argument on those issues); United States v. Crittenden, No. 98-5399, 1999
WL 993928, at *3-*4 (6th Cir. Oct. 20, 1999) (holding no denial of right of allocution at sentencing
where court overruled defendant’s objections to PSR before allowing him or his counsel to speak).
These cases control here. First, the court told Barnett at the outset of the sentencing hearing
that he had the right to address the court and that the “Court will be pleased to hear from you.” (R.
72 at 4). Following argument on the variance issues, the court stated it would grant the
Government’s motion; however, the court did not indicate how much of a variance it would grant,
nor did it state what the sentence would be. (R. 72 at 78).
Instead, the court explained that it would consider the factors under 3553(a), including “the
defendant’s personal characteristics and personal history.” (Id.). At that point, the court addressed
Barnett personally, stating: “You have the right to address the Court, Mr. Barnett, and the Court will
be pleased to hear from you.” (R. 72 at 79). Barnett declined. (Id.).
It is evident from this transcript that the court fulfilled its obligation under Rule 32 to allow
Barnett the opportunity to address the court before any sentence was finally imposed. Therefore,
Barnett’s right of allocution was not denied.
VIII.
For the foregoing reasons, we AFFIRM.