United States v. Billy Covington

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2652
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
B ILLY C OVINGTON,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00253-1—James B. Zagel, Judge.
A RGUED JANUARY 18, 2012—D ECIDED M AY 25, 2012
Before B AUER, M ANION and W OOD , Circuit Judges.
B AUER, Circuit Judge. The defendant-appellant, Billy
Covington, robbed a bank in Lansing, Illinois. He was
arrested and pleaded guilty to the crimes of bank robbery
(“Count 1”) and brandishing a firearm during a bank
robbery (“Count 2”) under 18 U.S.C. § 2113(a) and 18
U.S.C. § 924(c)(1)(A). On July 14, 2011, the district court
sentenced Covington to 36 months in prison on Count 1
and a consecutive sentence of 84 months on Count 2.
2 No. 11-2652
Covington appeals, arguing that during the sentencing
hearing, the district court denied him his right of allocu-
tion under Federal Rule of Criminal Procedure 32. We
disagree and affirm the sentence.
I. BACKGROUND
Because Covington’s challenge turns only on the proce-
dures employed at the sentencing hearing, we confine
our discussion of the facts to the hearing only. The
district court began the proceeding by hearing argu-
ments in favor of each party’s proposed sentence.
Then, pursuant to Federal Rule of Criminal Procedure
32(i)(4)(A), the court invited the defendant to speak on
his own behalf, and Covington obliged. Although the
exact amount of time Covington spoke is unknown, the
transcript indicates a 6-page span in which he spoke
at length on a variety of topics, including his troubled
childhood, his relationships with various family mem-
bers, and his time in the U.S. military.
Eventually, in the midst of Covington’s detailed discus-
sion of his military experience, the district court interjected:
The Court: Mr. Covington.
Covington: Yes.
The Court: Maybe you ought to start someplace else.
Covington: Pardon me?
The Court: Why did you go into the bank, Mr. Cov-
ington?
No. 11-2652 3
Covington: Okay. I am going to tell you.
The Court: No, tell me right now.
Covington: Okay. I went into the bank to kill myself.
Covington then proceeded to speak further, but he
brought the topic back to his war experience. Eventually,
the court asked another question:
Covington: I get tired sometime[s]. Let me make
this real short, Judge Zagel.
The Court: Let me ask you another question.
Covington: I get tired.
The Court: Let me ask you another question. Are the
flashbacks the reason that you use
drugs?
Covington then briefly discussed his drug use and several
suicide attempts. When Covington finished, the court
concluded by thanking him and then inviting his wife
to speak on his behalf.
At the conclusion of Covington’s wife’s appearance,
the court announced that it was ready to hand down a
sentence. In reaching the sentence, the court explained
that it was motivated in part by its belief that Covington
was a danger to himself and to others. The court
believed his suicidal tendencies prevented him from
soberly assessing the risk he posed to others in general
and in particular when he robbed the bank. It also ex-
pressed concern over Covington’s difficulty in sticking
with a course of mental health treatment. The court
ultimately announced sentences of 36 months on Count 1
4 No. 11-2652
and 84 months on Count 2 to run consecutively. It also
recommended drug rehabilitation and mental health
treatment programs.
II. DISCUSSION
Covington’s sole argument is that the district court
denied him his right of allocution at his sentencing
hearing. He failed to object on this ground in the
district court and raises the argument for the first time
on appeal. We therefore review his claim only for
plain error. See United States v. Olano, 507 U.S. 725, 731-32
(1993); United States v. Luepke, 495 F.3d 443, 448 (7th Cir.
2007); United States v. Williams, 258 F.3d 669, 672 (7th
Cir. 2001). To succeed under the plain error standard,
Covington must show (1) that the district court erred;
(2) that the error was plain; and (3) that the error
affected his substantial rights. Luepke, 495 F.3d at 448. If
he meets these three criteria, we may exercise our discre-
tion to remand for resentencing if the error “ ‘seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732).
A defendant’s right of allocution does not stem from
the Constitution, but this court has nevertheless recog-
nized it as an important right that district courts must
construe liberally. See United States v. Barnes, 948 F.2d 325,
328-30 (7th Cir. 1991). It is codified under Federal Rule
of Criminal Procedure 32(i)(4)(A)(ii), which states that
at sentencing, the court must “address the defendant
personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” As
No. 11-2652 5
we have noted, however, the right is not without its
limitations. See United States v. Alden, 527 F.3d 653, 663
(7th Cir. 2008) (collecting cases describing limits on the
right to allocute).
We acknowledge that the district court interrupted
Covington in order to ask him a question. But an inter-
ruption by the court does not in itself amount to a denial
of a defendant’s right of allocution. This is especially
true in this case, where the court’s interruption was an
attempt to refocus the defendant’s statements on mitiga-
tion rather than to terminate the allocution completely.
For example, Covington went into great detail about his
various altercations with his father, and at one point
he recounted a confusing story in which he asked a
blind man not to say his name as his father was walking
nearby. Although the court interjected with questions, it
permitted Covington to answer them fully and even
permitted him to veer away from the original subject
matter of those questions. While Covington was free
to speak about whatever he wished, the court’s interrup-
tion was a reasonable attempt to get him back on track
and thus a reasonable limitation on his right of allocution.1
1
The dissent takes the position that the majority opinion
curtails the right of allocution. It does not. Only if one equates
the right of allocution with the right to filibuster, can such a
charge be levied. A trial judge listening to rambling discus-
sions that seem to lead nowhere has a right to steer the defen-
dant to some connection between a cradle-to-the-grave bio-
graphical sketch and a statement that relates to the matter
(continued...)
6 No. 11-2652
Even if we were to find that the court’s interruption
was plain error, that error would not affect Covington’s
substantial rights. An error affects substantial rights
when that error prejudices the defendant. Luepke, 495
F.3d at 450-51. This court will presume prejudice “when
there is any possibility that the defendant would have
received a lesser sentence had the district court heard
from him before imposing sentence.” Id. at 451. Here, as
previously noted, the district court did hear from
Covington on a variety of different topics. And Covington
argues that if he had not been interrupted, he would
have offered details about his traumatic combat experi-
ences, his substance abuse problems, and his impaired
mental health. But he had already touched on all these
topics and more during his allocution. He could have
spoken further about them, but this would not have
afforded him a lesser sentence. The court explained that
its rationale for the sentence had nothing to do with
retribution or deterrence and everything to do with
incapacitation. It is precisely because Covington suffers
from severe mental health and substance abuse
problems that the court determined he was a danger
to himself and others. These problems also led the
district court to recommend supervised treatment pro-
grams. It is difficult to see how more details regarding
the severity of Covington’s mental health problems
could have convinced the court that the goals of incapac-
1
(...continued)
at hand. The record shows that the defendant was given a
right of allocution and used it fully.
No. 11-2652 7
itation and rehabilitation would be better served with
a lesser sentence.
Covington urges us to view this case as similar to
United States v. Li, 115 F.3d 125, 130-34 (2d Cir. 1997). In
Li, the district court continuously interrupted the non-
English-speaking defendant’s allocution with “increasing
impatience.” Id. at 133. The defendant went on for only
two pages of transcript before the court terminated the
allocution completely, and the court’s aggressive tone
suggested that the defendant may have been too intimi-
dated and confused to “speak meaningfully of the
factors that she legitimately thought relevant to the
mitigation of her sentence.” Id. at 134. Specifically, the
judge in that case believed that the defendant’s claim
of mental health problems was a ploy to gain sympathy.
Id. at 131.
This case presents a vastly different interaction
between the court and the defendant. Here, Covington
was able to speak for at least six pages of transcript
before the court’s interruption. And as we have noted,
that interruption was not intended to completely
terminate the allocution or to intimidate Covington.
Instead, the court posed questions designed to elicit
information more relevant to mitigation. The court
also made clear that it appreciated the severity of
Covington’s mental health and drug abuse problems
and the value of his service in the military. In short,
nothing here suggests that the right to allocution was
“reduced to a formality.” United States v. Barnes, 948
F.2d 325, 331 (7th Cir. 1991).
8 No. 11-2652
III. CONCLUSION
For the foregoing reason, the district court’s sentence
is A FFIRMED.
W OOD , Circuit Judge, dissenting. The only question
presented in this appeal is whether the district court
committed plain error by denying defendant Billy
Covington his right of allocution, which is guaranteed by
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii). My
colleagues conclude that no error, plain or otherwise,
occurred; in fact, they see the district court’s interven-
tions as helpful efforts to focus Covington’s statements.
In my view, the record shows exactly the opposite:
The judge’s interruptions had the effect of cutting off
Covington’s efforts to make his central points and in
doing so, deprived Covington of his right “to speak or
present any information to mitigate the sentence.” Id.I therefore respectfully dissent.
The right of allocution codified in Rule 32 is one that
is personal to the defendant. It is critical to the integrity
of the sentencing process; as the Supreme Court has
explained, “[t]he most persuasive counsel may not be able
to speak for a defendant as the defendant might, with
No. 11-2652 9
halting eloquence, speak for himself.” Green v. United
States, 365 U.S. 301, 304 (1961). Following that lead, this
court has elaborated on the value of the allocution,
noting that it is a procedural protection “designed to
enable our system of justice to mete out punishment in
the most equitable fashion possible.” United States v.
Barnes, 948 F.2d 325, 328 (7th Cir. 1991); see also Kimberly
A. Thomas, Beyond Mitigation: Toward a Theory of Allocution,
75 F ORDHAM L. R EV. 2641, 2644 (2007) (An allocution
allows a defendant not only to provide “mitigating
fact[s]” but also to discuss important “details” about his
life that allow a court to impose a “nuance[d]” and “just
sentence that is appropriate to the particular defendant.”).
From the perspective of the defendant, the allocution
“has value in terms of maximizing the perceived equity
of the process.” Id.In this case, the district court defeated both the
broader purpose and the practical utility of allocution by
refusing to let Covington speak for himself and instead
confining Covington’s contribution to a brief question-and-
answer session. Although the court did invite Covington
to speak, as is required by Green, it interfered almost
immediately when he tried to take advantage of
that invitation. Rather than listening for at least a few
minutes (and note that, as the majority concedes, only
six pages of double-spaced transcript were needed to
record Covington’s statements), the court interrupted
him and demanded that Covington discuss the topics
that the district court was interested in rather than raise
the points that Covington himself thought should
be considered as mitigating factors. When Covington
10 No. 11-2652
indicated that he would get to the court’s questions in
the course of his statement, the court cut him off,
saying “No, tell me right now.”
When it comes to allocution—the defendant’s own
chance to tell his story—it is hard to see how inces-
sant interruptions from the court could ever be helpful.
This is not to say that the court has to listen for hours to
a wordy defendant, and it certainly is not to say that
the court is obliged to respond in any particular way to
the defendant’s statements. But the court does have
an obligation to listen, not to talk, during the time that
the Rules give to the defendant. Even if, after some
time has elapsed, the court is entitled to invite the de-
fendant to address a subject that interests it, Covington’s
is not a case in which the court’s interventions can
fairly be characterized as helpful “attempt[s] to get
him back on track.” Opinion at 5. Earlier in the sen-
tencing proceeding, Covington’s lawyer, Rosalie
Guimarães, had tried to argue that Covington was men-
tally unstable and attempting to engage in the practice
known as “suicide by police.” See generally “Suicide by
cop,” en.wikipedia.org/wiki/Suicide_by_cop. The court
responded to Guimarães by saying “I am willing to accept
your proposition that this may be suicide by police.
I am willing to accept that. The question is, what dif-
ference does that make in sentencing?” During
Covington’s allocution, the court’s questions returned
to the same issue: “[Q] Why did you go into the bank,
Mr. Covington? . . . [A] I went into the bank to kill my-
self.” And then again, a bit later, “[Q] Do you still feel
that way? Do you have times when . . . you wanted to
No. 11-2652 11
end your life?” Ultimately, the court justified the imposi-
tion of a near-top-of-the guidelines sentence by refer-
ence to his suicidal tendencies, specifically mentioning
Covington’s responses to his questions. The court thus
knew about and was considering the effect of Covington’s
mental health problems before the allocution began,
but it inexplicably steered Covington away from
talking about points that Covington thought would be
mitigating evidence addressing that very problem. It
then used the responses it had elicited from Covington
to justify a higher sentence.
I am troubled by the way in which the majority reads
the end of Covington’s statement. As they put it, “When
Covington finished, the court concluded by thanking
him and then inviting his wife to speak on his behalf.”
Opinion at 3. But the full transcript leaves me, at least,
with a very different picture. After the court’s first inter-
ruption, Covington continued his allocution for a meager
12 additional lines. Then the following exchange took
place:
THE COURT: Let me ask you another question.
Are the flashbacks the reason
that you use drugs?
THE DEFENDANT: I have tried to kill myself with
them. I have tried to kill myself
several times. I’ve tried to OD
to [sic] drugs. And I tried—I
get—smoked some drugs and,
then, I tried to cut my—tried to
hang myself. If I get high, I tried
12 No. 11-2652
to cut my wrists because I can’t
stand the pain.
THE COURT: I have one last question and,
then, I am going to hear from
your wife. Do you still feel that
way? Do you have times when
you have been in custody, that
you wanted to end your life?
THE DEFENDANT: Yes.
THE COURT: Okay. Thank you, Mr. Coving-
ton. His wife?
Tr. (July 14, 2011) at 29 (emphasis added). This does not
strike me as an innocuous “thank you” followed by a
request for the next witness. It indicates instead that
the court had no interest in listening to anything else
Covington had to say, that it asked two final questions,
and then it cut him off. Nothing in this passage
suggests that “Covington finished.”
Although appellate courts are rightly cautious about
finding plain error, I believe that it occurred here. This
court, as well as other circuits, have repeatedly em-
phasized the value of the allocution, and so it should
have been clear to the sentencing judge that he had
an obligation to allow Covington to finish his state-
ment. That is so even if the judge was bored by what
Covington was saying, or did not find his comments to
be particularly mitigating, or was impatient to wrap the
proceedings up. (I emphasize again that there is no evi-
dence in this record that Covington took up an undue
amount of time; had the judge said anything to that
No. 11-2652 13
effect when he cut Covington off, this would be a dif-
ferent case.) Barnes provides this court’s fullest and
clearest articulation of the value of the allocution right.
There, we noted that:
The right of allocution is minimally invasive of the
sentencing proceeding; the requirement of providing
the defendant a few moments of court time is slight.
Because the sentencing decision is a weighty responsi-
bility, the defendant’s right to be heard must never be
reduced to a formality. In an age of staggering crime
rates and an overburdened justice system, courts
must continue to be cautious to avoid the appearance of
dispensing assembly-line justice.
Barnes, 948 F.2d at 331 (emphasis added). Barnes also
underscored the value of allocution in ensuring that
punishment is meted out equitably in reality, not just
on paper, and—equally importantly—that it is per-
ceived to be imposed equitably. Id. at 328. Other circuits
have agreed that the defendant should be given an op-
portunity to speak freely and broadly about any
mitigating fact that the defendant (not the court) deems
relevant. See United States v. Li, 115 F.3d 125, 130-34 (2d
Cir. 1997) (right to allocute violated if defendant cannot
“speak meaningfully of the factors that she legitimately
thought relevant to the mitigation of her sentence” (empha-
sis added)); United States v. Burgos-Andujar, 275 F.3d 23, 29
(1st Cir. 2001) (noting sentencing court should “allow
the defendant to speak on all topics which the defendant
considers relevant” (emphasis altered)). I find my col-
leagues’ opinion to be inconsistent with the long line
14 No. 11-2652
of cases supporting the historical office of the allocu-
tion right, which is to provide the defendant with an
unfettered opportunity to present a plea for mercy.
1 Joseph Chitty, A P RACTICAL T REATISE ON THE C RIMINAL
L AW 700 (London, A.J. Valpy 1816) (A defendant “ad-
dresses the court in mitigation of his conduct . . . or casts
himself upon their mercy.”); 4 William Blackstone, C OM-
MENTARIES ON THE L AWS OF E NGLAND 368 (Univ. of Chi.
1979) (“[The defendant] is either immediately, or at a
convenient time soon after, asked by the court, if he has
anything to offer why judgment should not be awarded
against him.”).
Because the court does not find plain error, it does
not reach the question whether the court’s premature
termination of Covington’s allocution prejudiced him.
Since I would find that plain error occurred, I add a word
about prejudice. To begin with, this is one of those situa-
tions in which prejudice is presumed. See United States
v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007). But even apart
from any presumption, the record here contains hard
evidence of prejudice. The court used Covington’s re-
sponses to its questions—which centered around
Covington’s suicidal tendencies and the implicit threat
of another dangerous public suicide attempt—as fodder
for imposing a higher sentence. Covington, however, was
trying to explain why any such threat had dissipated.
In order to do so, Covington wanted to sketch out his
background, his service in the U.S. Army, his flashbacks
to his combat experiences in Operation Desert Storm
(including a bombing to which he had been exposed),
and the relation between his substance abuse and his
No. 11-2652 15
mental health problems, all for the purpose of showing
why the therapy he was receiving from Dr. Farmilant
had given him new insight into his problems and
promised to be more successful than earlier rounds
of treatment had been. He was never permitted to reach
the last, critical point, nor was he allowed to show how
his earlier problems were being successfully addressed
through his current treatment. Indeed, Dr. Farmilant
concluded that “it is unlikely that [Covington] will be a
danger to the community upon release once his mood
and anxiety issues are treated.” This relates directly to
the district court’s finding that Covington could not
overcome his mental health and substance abuse
problems, and thus that as a danger to himself and
others, a longer sentence was necessary. Covington’s
inability to present his own account on the central issue
of his likely future need for incarceration prejudiced him.
For these reasons, I cannot join the majority’s opinion.
The facts do not bear out its characterization of the
district court’s interventions, and the end result so
clearly resulted in the deprivation of Covington’s right
of allocution that it qualifies as plain error. I therefore
respectfully dissent.
5-25-12