UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4229
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICHARD JODY SILVERS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson Jr., Senior
District Judge. (7:12-cr-00631-GRA-1)
Submitted: July 15, 2013 Decided: September 17, 2013
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for
Appellant. William N. Nettles, United States Attorney,
Columbia, South Carolina, William J. Watkins, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Jody Silvers pleaded guilty in the district court
to a single-count indictment charging him with conspiring to
traffic in oxycodone. The court thereafter sentenced Silvers on
the conviction to 175 months of imprisonment. Silvers appeals,
contending that he was not afforded the opportunity to allocute
at sentencing. See Fed. R. Crim. P. 32(i)(4)(A)(ii) (mandating
that the district court, prior to the imposition of sentence,
“address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the
sentence”). Silvers also maintains that the court neglected to
sufficiently explain on the record how the enumerated factors it
was required to consider pursuant to 18 U.S.C. § 3553(a) bore
upon the sentence imposed.
Notwithstanding that no objection was lodged below to the
errors now alleged, we vacate and remand for resentencing so
that Silvers may avail himself of the right of allocution
heretofore denied him. See United States v. Olano, 507 U.S.
725, 732 (1993) (instructing that appellate correction of plain
error requires appellant to demonstrate: (1) error; that is (2)
plain; (3) affects substantial rights; and (4) “seriously
affects the fairness, integrity or public reputation of judicial
proceedings” (citation, internal quotation marks, and alteration
omitted)).
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The disposition of this appeal is controlled by our
decision in United States v. Muhammad, 478 F.3d 247 (4th Cir.
2007). In that case, we determined that it was plain error for
the defendant to have been deprived of the opportunity to
allocute at sentencing, by which he was foreclosed from
attempting to convince the court that he should have received a
less severe punishment. See id. at 249 (citing United States v.
Cole, 27 F.3d 996, 999 (4th Cir. 1994)).
Indeed, the prospects for leniency were palpable in
Muhammad, where the defendant — like Silvers here — had been
sentenced at the top of the advisory range prescribed by the
Sentencing Guidelines. But we have exercised our discretion to
correct plain errors abridging the right to allocution even when
the attendant likelihood of prejudice is not so clear-cut. See
Cole, 27 F.3d at 999 (observing that sentence imposed was at
bottom of guidelines range, but identifying “at least two
grounds” that defendant could have advanced to persuade court to
downwardly adjust offense level and thereby lower applicable
range).
The government maintains that Muhammad is distinguishable
insofar as Silvers, in contesting a proposed upward adjustment
to his base offense level for an enhanced role in the offense,
see USSG § 3B1.1(c), personally addressed the district court at
sentencing, as he attempted to downplay his involvement in the
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conspiracy. This impromptu soliloquy, according to the
government, was sufficient to satisfy the allocution
requirement.
We are unpersuaded. Had Silvers been given the specific
opportunity to allocute, he would not have been compelled to
confine the topic to his relative culpability vis à vis his co-
conspirators. Silvers could have reiterated those same points,
to be sure, but the record reflects that he also could have, for
example, stressed his cooperation in the investigation of the
conspiracy and the effect of his addiction in motivating his
criminal behavior. The latter two subjects would not have been
appropriate for Silvers to broach during his focused discourse
to the court on the offense-level objection. We therefore
discern plain error in the withholding of allocution such that
we may appropriately exercise our discretion to correct it.
Pursuant to the foregoing, we vacate the sentence imposed
on Silvers and remand for resentencing in conformance with this
opinion. * We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
*
In light of our disposition of the appeal on the basis
that Silvers was denied allocution, we need not address his
alternative contention that he was sentenced in contravention of
18 U.S.C. § 3553(a).
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before the Court and argument would not aid the decisional
process.
VACATED AND REMANDED
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