United States Court of Appeals
For the First Circuit
No. 11-2301
UNITED STATES OF AMERICA,
Appellee,
v.
GISELINE PACHECO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Thomas J. Trebilcock-Horan, Research and Writing Specialist,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on
brief for appellant.
Justin Reid Martin, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, were on brief for appellee.
August 13, 2013
TORRUELLA, Circuit Judge. On March 11, 2011, Giseline
Pacheco ("Pacheco") was arrested at an airport in Puerto Rico for
attempting to import 672 grams of heroin from the Dominican
Republic. On April 6, 2011, the government indicted Pacheco for:
(1) conspiring to possess with intent to distribute heroin in
violation of 18 U.S.C. § 846; (2) possessing with the intent to
distribute heroin in violation of 21 U.S.C. § 841; (3) conspiring
to import heroin in violation of 21 U.S.C. § 963; and (4) importing
heroin into the United States in violation of 21 U.S.C. §§ 852 and
960. Pacheco entered a straight guilty plea and was sentenced to
24 months' imprisonment and two years of supervised release.
Pacheco argues that her sentence is procedurally and
substantively flawed and requests that we vacate and remand for
resentencing because the district court: (1) erred in denying her
request for a continuance of the sentencing hearing; (2) sentenced
her under the incorrect impression that it could not forego the
imposition of a term of imprisonment without the government first
requesting a downward departure pursuant to U.S.S.G. § 5K1.1 (the
"§ 5K1.1 motion"); and (3) did not afford her the right to
allocute. We reject her contentions and affirm.
I. Factual and Procedural Background
At the time of her arrest, Pacheco, a 20-year-old single
mother of two young children, ages four and five, was pregnant with
her third child. When she was detained, Pacheco named the man who
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had allegedly recruited her to import the drugs (the "recruiter").
Pacheco was later able to pick the recruiter out of a lineup and
expressed her willingness to cooperate in a case pending against
him at the federal district court in Puerto Rico. As it turned
out, a grand jury in Puerto Rico had indicted the recruiter several
months earlier, but the authorities had only arrested him the day
before Pacheco was detained.
On March 29, 2011, the Assistant United States Attorney
("AUSA") in charge of the case, AUSA Justin R. Martin ("AUSA
Martin") contacted Pacheco's counsel to express the government's
inclination to meet with Pacheco to discuss her potential
cooperation to supersede the recruiter's indictment by holding him
accountable for larger quantities of heroin, based on the amount
Pacheco carried when she was arrested. The parties scheduled a
meeting for May 11, 2011, and the government reserved grand jury
time to supersede the alleged recruiter's indictment. In the
meantime, the government indicted Pacheco.
During the meeting with the government, Pacheco initially
recanted and denied the recruiter's involvement in the events that
led to her arrest. By the end of the meeting, however, after
speaking with her attorney alone, Pacheco reverted to her original
version of the events, but refused to cooperate in any manner that
-3-
could reveal to the recruiter that she had done so.1 She also
refused to testify against him before a Grand Jury or at trial.
Based on this, the parties were unable to finalize a plea agreement
and Pacheco entered a straight plea.
At the change-of-plea hearing, the judge asked the
government if it would file a § 5K1.1 motion requesting a downward
departure for substantial assistance. The government responded it
would not because Pacheco had been given the opportunity to
cooperate and the recruiter had already pled guilty pursuant to a
plea agreement. The judge nonetheless strongly encouraged the
parties to explore ways for Pacheco to cooperate.
According to the government, AUSA Martin and his
immediate supervisor decided that, with Pacheco's assent, the
government could file an informative motion in the alleged
recruiter's case, prior to his sentencing. According to the
government's brief,
although the benefit to the government of
filing that informative motion was practically
inexistent, because the government was already
obligated under [the recruiter's] plea
agreement to recommend that he be sentenced to
a 108-month imprisonment term, it was the only
1
According to Pacheco, it was not until the May 11th meeting that
she found out the government would ask her to testify before a
grand jury and, if necessary, in open court. After learning this,
she suffered a panic attack as she recalled a traumatic experience
she had when she was 15 years old testifying against a man who had
assaulted her. She also alleges that, in the previous several
days, other detainees at the federal detention center where she was
being held threatened her about cooperating with authorities.
-4-
option conceived by the prosecutors for
arguably justifying the filing of a 5K1 motion
in Pacheco's case and responding in good faith
to the district court's energetic suggestion.
On August 19, 2011, the government filed the agreed-upon
motion in the recruiter's case, stating that, if the case had gone
to trial, it would have had a witness testify that he or she had
conspired with the recruiter to import heroin from the Dominican
Republic.2 On August 25, 2011, the district court sentenced the
alleged recruiter to 108 months' imprisonment, the amount of time
established in his plea bargain.
On September 28, 2011, approximately five days before
Pacheco's sentencing hearing, AUSA José A. Ruiz Santiago, the AUSA
in charge of the criminal division, filed a sealed motion informing
the district court that the government would not file a § 5K1.1
motion. Two days later, Pacheco requested a continuance of the
sentencing hearing and, in a separate motion, requested an order
compelling the government to produce the evidence supporting its
refusal to file the promised § 5K1.1 motion.
On October 3, 2011, at the sentencing hearing, the
district court denied the motion to continue the sentencing after
hearing the parties' respective positions regarding the controversy
surrounding the § 5K1.1 motion. The district court also heard the
2
We, of course, pass no judgment upon the value the district
court could have afforded to such a motion in the alleged
recruiter's case.
-5-
defense's arguments in favor of a lenient sentence as expounded by
Assistant Federal Public Defender Joannie Plaza Martínez ("AFPD
Plaza"). As will be explained in full detail below, in the midst
of what appears to be a fast-paced and tense exchange with said
counsel, the district court asked Pacheco if she had anything to
say. Pacheco argues that, given the back and forth between the
judge and her attorney, as well as her emotionally altered state,
she did not understand she was being addressed individually or that
she was being invited to speak on her own behalf. She thus argues
that resentencing is required because she was not unequivocally
afforded the right to allocute.
The district court determined that Pacheco's applicable
guideline range for sentencing was 46 to 57 months' imprisonment
and three to five years of supervised release. The district court,
however, sentenced her to 36 months' imprisonment and three years
of supervised release. Moreover, the day after sentencing, the
judge motu propio dropped the sentence to 24 months' imprisonment
and two years of supervised release. We take each issue in turn.
II. Analysis
A. The request for a continuance
As stated above, several days before the sentencing, the
government filed a motion announcing that it would not file a
§ 5K1.1 motion. It explained that Pacheco only agreed to cooperate
once it was certain she would not have to testify, and contended
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that her previous refusal to cooperate had resulted in the
government offering the recruiter a reduced plea, which he
accepted. Two days after the motion was filed, Pacheco requested
a continuance of the sentencing hearing. Pacheco then requested an
order to compel the government to produce the information in
support of its assertion that she did not provide substantial
assistance. The request explained that the government's new
position was contrary to everything Pacheco had agreed to with the
AUSA regarding the filing of a § 5K1.1 motion.
At the sentencing hearing, AFPD Plaza failed to convince
the district court of the probable utility of a continuance. AFPD
Plaza then shifted gears and argued that, if there would be no
§ 5K1.1 downward departure, the court could consider Pacheco's
cooperation for a downward variance as supported by the arguments
set forth in the Sentencing Memorandum.3 AFPD Plaza insisted on a
continuance so that she could better develop her arguments
regarding the mitigating factors in Pacheco's case.
In her brief before this court, Pacheco posits that she
needed the continuance to properly investigate the government's
assertions and explain why her cooperation had been substantial.
She points out that one of the four cooperating witnesses in the
3
Pacheco had not filed the Sentencing Memorandum before the
hearing and rather informed the district court during the hearing
that she intended to file it. The district court immediately
requested to see a hard copy of the memorandum and read it while
the hearing ensued.
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the recruiter's criminal case had received a sentence of seven
hours under the custody of the United States Marshals for
committing similar conduct to hers. Having more time to prepare
for the sentencing, she claims, would have allowed her to inform
the court of all the facts prior to sentencing.
We review the denial of a motion to continue a sentencing
hearing for abuse of discretion and only overturn when the movant
suffered substantial prejudice. United States v. Moore, 362 F.3d
129, 135 (1st Cir. 2004). We assess each case individually and may
consider any number of factors. See id. (we may consider a number
of factors including "the movant's proferred [sic] reasons for
needing the continuance, the amount of time necessary for effective
preparation, the amount of time previously available for
preparation, the extent to which the movant has contributed to his
predicament, the probable utility of a continuance, the extent of
the inconvenience to others of a continuance, and the likelihood of
injustice or unfair prejudice to the movant from a denial of a
continuance").
We see no abuse of discretion in the district court's
decision to go forward with the sentencing.4 Absent the government
4
Even though Pacheco argues in her brief that AFPD Plaza and AUSA
Martin had reached an agreement regarding the filing of a § 5K1.1
motion, Pacheco does not develop a breach of contract argument.
She instead focuses on the fact that a continuance was required
because the government's alleged volte-face caught her off guard,
and the government's stated reasons for not filing the § 5K1.1
motion were false. During oral argument, we pressed Pacheco's
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actually moving for a § 5K1.1 downward departure, no amount of
information Pacheco would have gathered could have allowed the
court to grant such a departure for substantial assistance. In
fact, during the hearing, the district court asked AFPD Plaza twice
whether she could cite to a single case that would allow it to, as
the judge put it, "factor into a 5K1," and she conceded she could
not. That is not surprising given that "[a] substantial assistance
departure can be granted only if the government moves for one."
United States v. Anonymous, 629 F.3d 68, 72 (1st Cir. 2012) (citing
Wade v. United States, 504 U.S. 181 (1992)).
Also, the district court was aware of the fact that the
government had filed the informative motion in the recruiter's
case. Even if it was not aware of the exact wording of the motion
or what sentences the other alleged cooperators in that case
received, the court did not abuse its discretion in not postponing
the sentencing because awareness of those details still would not
have allowed it to sentence Pacheco as if the government had
requested a downward variance for substantial assistance. Pacheco
failed to establish the probable utility of a continuance given
that the information she sought, even if it demonstrated to the
counsel regarding the breach of contract theory. Even though
counsel affirmed a breach of contract had taken place, he quickly
redirected the discussion to the need for a continuance in light of
the government's new position. We will therefore restrict our
analysis to the continuance issue and not pursue the specter of a
breach of contract claim.
-9-
district court that Pacheco had provided substantial assistance,
would not have allowed the district court to proceed as if a
§ 5K1.1 motion had been filed. As Pacheco concedes, the only actor
that can ascertain whether the assistance was substantial enough to
warrant a § 5K1.1 motion is the government.
Second, Pacheco cannot show that she was unable to brief
the court on her arguments regarding the appropriate sentence
because she in fact had her Sentencing Memorandum ready and the
judge was able to read it and consider it at the hearing. At no
point did Pacheco argue that she was not able to complete her
Sentencing Memorandum on time or that she needed more time to
complete it. Pacheco has thus failed to show that she suffered
injustice or unfair prejudice by the district court's refusal to
continue the sentencing hearing.
Third, to the extent that Pacheco claims prejudice from
insufficient time to set the record straight about the alleged
false statements of the government regarding the recruiter
benefitting from her initial reluctance to testify against him, she
is mistaken. The government stated its position in its informative
motion and Pacheco denounced its falsity both in her written
opposition and at the sentencing hearing. Thus, she had a fair
opportunity to challenge the government's statements and vigorously
did so. We see no abuse of discretion in the district court's
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decision to proceed with sentencing at that juncture. We now
properly turn to Pacheco's challenge of the sentence.
B. The imposition of a term of imprisonment
Pacheco argues that the district court imposed a prison
term because it was under the incorrect impression that, in the
absence of a § 5K1.1 motion, it had its hands tied and could not
consider her efforts to cooperate with the government.
Even though it was not until recently that "we join[ed]
other circuits in holding that, in determining the appropriate
sentence within the guidelines, or in varying from the guidelines,
a sentencing court has discretion to consider the defendant's
cooperation with the government as an 18 U.S.C. § 3553(a) factor,
even if the government has not [filed a] 5K1.1 motion for a
downward departure," United States v. Landrón-Class, 696 F.3d 62,
66 (1st Cir. 2012), it is clear from the transcript of the
sentencing hearing that the district court was fully aware that, in
imposing the sentence, it had the discretion to consider Pacheco's
willingness to cooperate. The transcript indicates that, when AFPD
Plaza insisted that the court consider Pacheco's cooperation when
imposing a sentence, the district court stated more than once that
it did not feel constrained in relation to the type of information
it could consider:
THE COURT: Argue your variance. You want me to
vary the sentence?
MS. PLAZA: Of course, Your Honor.
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THE COURT: That's what you have to concentrate
on.
MS. PLAZA: I'm going to concentrate on that,
but what I'm saying to the Court is that if
the court is going to not consider the
cooperation --
THE COURT: I can consider everything.
MS. PLAZA: Ok.
THE COURT: But bringing heroin into the United
States is a big time crime, and she has to
serve time for that. I'm sorry.
. . . .
MS. PLAZA: Since the Court seems to be -- Your
honor, there are other factors to take into
consideration. But given the Court's
presentation at the Change fo Plea hearing, it
leads me to believe that the Court would only
consider releasing my client if a 5K motion
had been filed. I think that is of course the
Court's prerogative, but I think that's not
demanded of section 3553(a) for the minimally
sufficient sentence. And I think my client has
all the factors on her behalf. It should be
considered by the Court.
THE COURT: I looked at your Sentencing
Memorandum, and I am considering it.
. . . .
MS. PLAZA: . . . But the defendant's attempts
to cooperate can be taken into consideration.
And I cite in my memorandum cases that say
that the Court can use that information if not
for a 5K reduction, but for other --
THE COURT: You heard that I was going to
consider the variance.
(emphasis added).
-12-
We think it is sufficiently clear that the district court
understood it had discretion to consider Pacheco's attempts to
cooperate and, in fact, never denied having discretion to consider
it. But having discretion to consider something does not entitle
a defendant to force the district court to factor the issue being
considered into its final decision. It is evident from the
transcript that, although the court was willing to impose a
sentence that was significantly lower than what the Guidelines
recommended and said it could consider the cooperation, it also
considered the charged offenses to be sufficiently serious to
warrant imprisonment. We see no abuse of discretion in the
district court's choice to impose a term of imprisonment.
C. The opportunity to allocute
The transcript of the sentencing hearing indicates an
escalating tension between AFPD Plaza and the district court judge
when the judge attempted to proceed with sentencing and AFPD Plaza
attempted to argue in favor of a lenient sentence for Pacheco.
Immediately before and immediately after putting an end to a fast-
paced discussion with AFPD Plaza by telling said counsel to "shut
up," the district court asked Pacheco if there was anything she
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wanted to say.5 The relevant portion of the hearing transpired as
follows:
PLAZA: Well, Your Honor . . . [s]he was
vulnerable, and she was used for this criminal
venture. And the purpose -
THE COURT: Listen, I've heard you enough.
Anything you want to say, ma'am?"
PLAZA: Your Honor, I ask the Court -
THE COURT: I'm asking you to shut up. Anything
you want to say, ma'am? Anything?
THE DEFENDANT: (Shaking head from side to
side.)
THE COURT: Anything? [AUSA] Martin, else?
MARTIN: Nothing, Your Honor.
THE COURT: Very well.
We review de novo a sentencing court's compliance with
Fed. R. Crim. P. 32(i)(4)(A). United States v. Rivera-Rodríguez,
5
During oral argument, we requested that the parties investigate
whether the sentencing hearing had been recorded. The government
filed a motion stating that personnel at the district court had
indicated that, when a court reporter is present, proceedings are
not recorded using FTR (ForTheRecord). Subsequently, Pacheco's
counsel filed a motion and a copy of an email in which management
personnel at the district court told him that no FTR recording
existed, but whether or not the court reporter decided to make an
informal recording, was "a personal preference outside [their]
jurisdiction." Pacheco's counsel requested that we issue an order
to compel the court reporter who transcribed the sentencing hearing
in this case to reveal whether she had recorded the hearing. We
denied the motion. If no FTR (the only recording method authorized
to record hearings at the district court) exists because a court
reporter was present, we will only review the official transcript
of the hearing.
-14-
617 F.3d 581, 605 (1st Cir. 2010) (citing United States v.
Burgos-Andújar, 275 F.3d 23, 28 (1st Cir. 2001)).
Pursuant to Fed. R. Crim. P. 32(i)(4)(a)(ii), before
imposing its sentence, a court must "address the defendant
personally in order to permit the defendant to speak or present any
information to mitigate the sentence." In Green v. United States,
365 U.S. 301 (1961), the Supreme Court recognized the long history
of the common law right of allocution. It stated that, "[t]aken in
the context of its history, there can be little doubt that the
drafters of Rule 32[] intended that the defendant be personally
afforded the opportunity to speak before imposition of sentence."
Id. at 304. Although the Supreme Court in Green reviewed a
transcript it described as being, "unlike a play, [because it] is
unaccompanied with stage directions which may tell the significant
cast of the eye or the nod of the head," the Court focused on what
the transcript explicitly indicated. Id. at 304-05. It found that
"[t]he single pertinent sentence -- the trial judge's question 'Did
you want to say something?' -- may well have been directed to the
defendant," and refused to speculate whether it was addressed to
counsel or to anyone else who may have been present at the
hearing.6 Id. at 304.
6
The Court in Green gave significant weight to the fact that the
challenge had been raised several years after the sentencing took
place. We do not think, however, that the Court would have come
out in favor of Green had the argument been raised earlier given
the obvious weight the Court also gave to "[t]he single pertinent
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The Supreme Court in Green instructed courts to, "as a
matter of good judicial administration, unambiguously address
themselves to the defendant [and to] . . . leave no room for doubt
that the defendant has been issued a personal invitation to speak
prior to sentencing." Id. at 305. This circuit has also
consistently requested that courts comply with Fed. R. Crim. P. 32
by "address[ing] the defendant[s] personally and allow[ing] [them]
to speak on all topics." Burgos-Andújar, 275 F.3d at 29 (internal
quotation marks omitted). We have also recognized that the right
may be satisfied by affording defendants the "functional
equivalent" of what is required by the rule in question. United
States v. Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994). To achieve
functional equivalency, "the court, the prosecutor, and the
defendant must at the very least interact in a manner that shows
clearly and convincingly that the defendant knew he had the right
to speak on any subject of his choosing prior to the imposition of
his sentence." Id.
Pacheco argues that she began sobbing uncontrollably
after she heard the district court state earlier in the hearing
that importing heroin into the United States is a crime that must
entail a term of imprisonment. She claims that her crying, and the
fact that she was not addressed individually, and the fact that she
was not formally informed of her right to make a statement on her
sentence." Green, 365 U.S. at 304.
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own behalf, prevented her from addressing the court. Pacheco,
however, clearly acknowledges in her brief that she was addressed
personally. Pacheco further argues that the district court did not
pause to ask her what she meant to say by shaking her head.
While Pacheco makes several arguments in her attempt to
inject ambiguity into the transcript of the hearing, we are
unpersuaded. The transcript reflects that Pacheco was afforded the
right to speak on any topic of her choosing when the district court
addressed her personally (as she concedes) and twice, if not
thrice, asked if she wanted to say anything. Our cases only
require that defendants be addressed personally and be invited to
speak on any topic before sentencing. Neither the Supreme Court
nor this court has ever required that a sentencing court employ a
specific set of words to notify a defendant of his or her right to
allocute. To the extent Pacheco may be arguing that asking whether
she had anything to say is not technically an invitation to speak,
we plainly disagree and refuse to go down the semantics rabbit
hole.
Pacheco argues she was sobbing uncontrollably and may not
have even understood what was being said to her. She further
argues that she might have even been shaking her head from side to
side in response to something other than to the question being
posed to her. We decline Pacheco's invitation to speculate as to
possible alternative meanings of her actions. Pacheco was
-17-
personally asked a question and she immediately shook her head from
side to side. Given the context, we believe the only reasonable
interpretation of that action is that she had nothing to say to the
court in response to its question, "Do you have anything to say,
ma'am?" Even though it would have been ideal given the
circumstances, we do not think it was necessary for the court to
elicit or even force a verbal response from Pacheco. Further, once
she declined to speak, the district court had no obligation to
insist that she seize the opportunity to speak. In sum, we find no
merit to Pacheco's claim that she was not afforded the right to
allocute.
III. Conclusion
For the reasons set forth above, we affirm the district
court's sentence.
Affirmed.
-Dissenting Opinion Follows-
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LIPEZ, Circuit Judge, Dissenting. Although I concur with
the majority that the district court acted within its discretion by
denying Pacheco's motion for a continuance, I conclude that Pacheco
was deprived of her opportunity to allocute before sentencing. I
would therefore vacate the sentence and remand for a resentencing
that would give her that opportunity.
The Supreme Court has emphasized both the historical
provenance and the substantial importance of permitting "[the]
defendant, personally, to have the opportunity to present to the
court his plea in mitigation." Green v. United States, 365 U.S.
301, 304 (1961). In the words of the Seventh Circuit,
[w]ith historical roots in the common law, the
opportunity to plead for mercy is another
provision in a procedural body of law designed
to enable our system of justice to mete out
punishment in the most equitable fashion
possible, to help ensure that sentencing is
particularized and reflects individual
circumstances.
United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991); see
also United States v. Burgos-Andújar, 275 F.3d 23, 28 (1st Cir.
2008) (noting "our long tradition of giving all defendants the
right to directly address the court and plead for mercy"). We have
accordingly described the right of allocution as "sacrosanct."
United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st Cir. 2008).
Therefore, "[t]he burden of complying with the right of
allocution[] rests with the court and not the defendant," and the
court bears the responsibility of "mak[ing] sure the defendant
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understands that [she] has the right to say anything [she] wants
before sentence is imposed." United States v. Vasquez, 216 F.3d
456, 458-59 (5th Cir. 2000).
Here, the record shows that for much of the sentencing
hearing, the district court and defense counsel engaged in a
contentious exchange regarding a number of issues. The majority
notes the "escalating tension" between the trial judge and counsel,
compounded by counsel's confused and repetitive presentation and
the trial judge's increasing impatience with her arguments. Toward
the end of the hearing, the district court's vexation reached its
peak. In response to counsel's concern with the court "informally
[telling] the client the Court is going to impose jail time," the
trial judge said: "Wait a minute. Do you honestly think that a
case involving heroin should be allowed without jail time?" After
this statement was interpreted for her, Pacheco asserts (and the
government does not dispute) that she began weeping.7
This fraught dialogue culminated in the passage the
majority quotes, where the district court told counsel that he had
"heard [her] enough" before asking Pacheco whether she had anything
she wanted to contribute. When counsel persisted, the court
7
As the majority notes, we cannot listen to the recording of the
sentencing hearing, which might have given us a better feel for the
atmospherics of the exchanges. But the transcript speaks for
itself. To the extent that we have any doubts about the impact of
the words on the page on Pacheco's right to allocute, we must
resolve them in Pacheco's favor. See United States v. De Alba
Pagán, 33 F.3d 125, 129 (1st Cir. 2009).
-20-
"ask[ed her] to shut up" before turning to Pacheco and inquiring
once again whether she had anything to say.
On the basis of the exchanges between the judge and the
defendant, the majority concludes that "Pacheco was personally
asked a question and she immediately shook her head from side to
side. Given the context, we believe the only reasonable
interpretation of that action is that she had nothing to say to the
court in response to its question, 'Do you have anything to say,
ma'am?'"
I strongly disagree with the majority's evaluation of the
context of the supposed allocution. One must look closely at the
three inquiries relied upon by the majority:
First Inquiry:
THE COURT: Listen, I've heard you enough [referring to
Pacheco's attorney]. Anything you [meaning the defendant] want to
say, ma'am?
Second Inquiry:
PLAZA: Your Honor, I ask the Court --
THE COURT: I'm asking you [referring to Pacheco's
attorney] to shut up. Anything you [meaning the defendant] want to
say, ma'am? Anything?
THE DEFENDANT: (Shaking head from side to side.)
Third Inquiry:
THE COURT: Anything? [AUSA] Martin, else?
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MARTIN: Nothing, Your Honor.
THE COURT: Very well.
So far as we can tell from the transcript, these
exchanges occur in a matter of seconds. In the first inquiry, the
court prefaces its invitation to the defendant to speak with the
admonition to Plaza that he has heard enough from her. In the
second inquiry, the court prefaces its invitation by literally
asking her attorney to "shut up." The defendant responds to this
invitation by shaking her head from side to side. The third
inquiry consists of one word from the court, "Anything?",
apparently in response to the defendant shaking her head. But it
is unclear from the transcript whether this third inquiry was
directed to the defendant or the prosecutor. Since it is Martin
who responds "Nothing, Your Honor," it appears that the inquiry was
directed at him.
In a formal sense, the judge invited the defendant to
speak before he imposed a sentence. But it is hard to imagine a
more uninviting invitation. The twenty-year old defendant, already
in tears, has just heard the judge tell her attorney in rapid
succession that he has "heard you enough" and "shut up" before she
shakes her head from side to side, signaling that she has nothing
to say. Yet the majority says that "the only reasonable
interpretation" of the defendant shaking her head "is that she had
nothing to say to the court in response to its question."
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To the contrary, I believe that the far more reasonable
interpretation of this scenario is that the defendant, even if she
did have something to say to the judge, was so intimidated by his
display of anger and impatience with her attorney that she could
not summon the courage to speak. The judge and the defendant did
not "interact in a manner that shows clearly and convincingly that
the defendant knew [she] had a right to speak on any subject of
[her] choosing prior to the imposition of sentence." United States
v. De Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994) (emphasis
added). To the extent that there is any uncertainty about the
defendant's state of mind at this critical juncture, those
"[d]oubts should be resolved in the defendant's favor." Id. The
majority has failed to do that.
It is all too easy for judges, enveloped in the courtroom
by the authority of their office, to underestimate the impact of
their demeanor and words on the parties before them. That is why
judges, even when provoked by counsel, must always measure their
manner and their words carefully. That did not happen here, with
serious consequences for the defendant's right to allocute.
As the Second Circuit has explained, the Rule on
allocution "demands that each defendant be allowed a meaningful
right to express relevant mitigating information before an
attentive and receptive district judge." United States v. Li, 115
F.3d 125, 133 (2d Cir. 1997). Thus, "creat[ing] an atmosphere that
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obviously rendered it difficult for [the defendant] to present an
effective and potentially persuasive allocution" may result in
deprivation of the right. Id.; see also Barnes, 948 F.2d at 331
("Because the sentencing decision is a weighty responsibility, the
defendant's right to be heard must never be reduced to a
formality."); United States v. Sparrow, 673 F.2d 862, 865 (5th Cir.
1982) ("Even where the judge satisfies the specifics of Rule 32, we
must still assure ourselves that the compliance was not merely in
form."). Here, there was at best only formal compliance with Rule
32. In substance, however, the court's handling of the sentencing
hearing created a hostile atmosphere that was incompatible with the
meaningful exercise of the defendant's right to allocute.
I wish to be clear on one final point. My dissent should
not be read as a criticism of the trial judge's conduct toward
Pacheco generally. Indeed, he displayed marked solicitude toward
her in other contexts, such as at the change of plea hearing, and
in urging the government to offer her a downward departure. He was
unquestionably sympathetic to her plight as a young mother of two,
with a third child on the way. His ire was directed at counsel,
not Pacheco herself. His intemperate words were brief, a momentary
lapse of control. But that lapse came at an inopportune time, with
serious consequences for the defendant's right to speak to the
court before sentencing.
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Because I cannot agree that Pacheco was given a
meaningful opportunity to allocute, I would vacate her sentence and
remand so that she can be sentenced in compliance with the
strictures of Rule 32(i)(4)(A)(ii). For these reasons, I
respectfully dissent.
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