United States Court of Appeals
For the First Circuit
No. 01-2062
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
NORMA BURGOS-ANDÚJAR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Circuit Judge,
Kravitch,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Joaquín Monserrate-Matienzo, for appellant.
Francis J. Bustamante, Special Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
U.S. Attorney, Chief, Criminal Division, and Margaret A. Larrea,
Special Assistant U.S. Attorney, were on brief, for appellee.
* Of the Eleventh Circuit, sitting by designation.
December 19, 2001
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TORRUELLA, Circuit Judge. Defendant-appellant Norma Burgos-
Andújar appeals her sentence of sixty days' imprisonment after her
conviction for criminal trespass on naval property. Appellant contends
that the district court erred when it increased her sentence from forty
days to sixty days. Because we find that the district court increased
appellant's sentence in response to her continuing allocution, we
affirm.
I.
On April 28, 2001, officers of the United States Navy
arrested appellant on a small island off the coast of Vieques, Puerto
Rico for trespassing in Navy territory. On July 6, 2001, after a bench
trial, appellant was convicted of criminal trespass in violation of 18
U.S.C. § 1382. After finding the appellant guilty, the district court
gave appellant and her co-defendants an opportunity to address the
court. Thereafter, appellant made a statement.1 After appellant
concluded her statement, the court said, "Just keep in mind that you
are a lawmaker, not a lawbreaker. I'll hear the next one." To which
appellant replied, "And you have to bring us justice." After a short
recess, the court announced sentences for all the defendants, including
appellant.
1 Appellant submitted a written statement, in Spanish, which was
translated and presented to the court.
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When announcing appellant's sentence, the court began by
explaining its rationale for the sentence. This statement focused
largely on appellant's position as a legislator in the Puerto Rican
Senate and her involvement in the movement to stop military exercises
on Vieques through civil disobedience. At one point, the court
included a reference to unknown "masked men" who had previously entered
Camp Garcia but who were not related to the current proceedings.
Shortly thereafter, as the court was still discussing its rationale for
appellant's sentence but before pronouncing any sentence, appellant
attempted to respond to the court's comments. This is evident because
the record reflects the court interrupting its statements to say, "I'll
give you a chance." After finishing its comments, the court proceeded
as follows:
With that in mind, I am sentencing you as
follows:
It is the judgment of this Court that
Defendant, Norma Burgos, is hereby sentenced and
hereby ordered committed today to a term of 40
days [and] a special monetary assessment in the
amount of $10 is imposed. . . . That will be all.
After this pronouncement, appellant interjected, "You said
--." To which the court, once again, said, "That's all." At this
point, appellant again spoke, saying, "You said you were going to allow
me to speak," apparently referring to the point in the prior statement
when the court said, before imposing sentence on appellant, "I'll give
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you a chance." The court then allowed appellant to speak, cautioning
her to keep it brief.
Appellant then said:
I do recognize what your function is. As
a Judge of the U.S. District Court here in Puerto
Rico, you have to interpret and provide justice.
But what justice are you imparting when you are
presuming that at this point in time when you're
passing sentence upon me the people who were
hooded there were not people who were working for
the Navy and following the orders of Navy
personnel?
When did they come before you in this
court? What was the evidence presented before
you to demonstrate that they were guilty as when
they were working for the cause of Vieques?
You said that you expect that the same way
that I imagine that your people will seek peace
and they will work and have respect for the
Constitution that they uphold. That's correct?
But then before this court more than 700
people to this day have come and passed before
this court to be judged by all of you, you as the
judges, with evidence that demonstrates that the
ones who are violating the greater law are the
members of the Navy. What are you waiting for in
order to come and arrest them and judge them?
The court then warned the appellant to be careful, telling her, "You
are becoming defiant. I think it would behoove you to calm down and
think about what you are going to say. It does not behoove you to defy
the court." From this point forward, the record contains only the
statements of the court and appellant's lawyer. Appellant apparently
continued in Spanish, and her comments are not recorded.
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The record does reflect the court's attempts to stop
appellant's continuing speech with periodic interruptions that read,
"That will be all. . . .Miss Burgos, that's it. Will you please -- ."
At the apparent end of appellant's statement, the court stated, "Okay.
I'll change that sentence to 60 days." The court then had appellant
escorted from the courtroom. Appellant's attorney immediately asked
for a reconsideration which the court refused.
Appellant then sought to be released on bail during her
current appeal. The court denied her motion saying, "The longer
sentence that the Court imposed on Defendant was not based on a finding
of contempt. The Court simply exercised its discretion under 18 U.S.C.
§ 1382 to impose a sentence of not more than six months' imprisonment.
No contempt proceedings were necessary."
Appellant then filed an appeal and motion for bail on appeal
with this Court on July 23, 2001. We granted the motion for bail on
appeal on August 10, 2001.
II.
Appellant was convicted under 18 U.S.C. § 1382 which forbids
unlawful entry onto naval property, inter alia. This section also
authorizes imprisonment of offenders for terms of up to six months.
See id. Appellant received a sentence of only sixty days, well below
the statutory limit. Because convictions under section 1382 are Class
B misdemeanors, see 18 U.S.C. § 3559(a)(7), and not subject to the
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Sentencing Guidelines, see U.S.S.G. § 1B1.9, we generally review
sentences under section 1382 to determine if they are "plainly
unreasonable." 18 U.S.C. §§ 3742(e)(4); see also United States v.
Sharpton, 252 F.3d 536, 540 (1st Cir. 2001) (per curiam). There is no
suggestion here that had the district court simply sentenced appellant
to sixty days that such a sentence would have been plainly
unreasonable.2 Therefore, as a threshold matter, we find no error as
to the length of appellant's sentence.
Appellant's central contention, however, is that the district
court erred when it altered her sentence from forty days to sixty days.
Generally, a sentencing court has broad discretion, and we review
sentencing determinations only for abuse of discretion. See United
States v. Jiménez-Rivera, 842 F.2d 545, 548 (1st Cir. 1988). However,
the sentencing court does have to comply with certain procedural rules,
and we review compliance with those procedural rules de novo. See
United States v. Encarnación, 239 F.3d 395, 398 (1st Cir. 2001); see
also United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998).
As a basic rule, the sentencing court must "determine whether
the defendant wishes to make a statement and to present any information
2 Appellant essentially concedes this point. In her brief to this
court, appellant claims that the forty-day sentence was "inaccurate"
and "disproportionate" because it exceeded the sentences of her co-
defendants by ten days. However, appellant acknowledges that this
sentence was legal. We see no reason why we should treat the forty-day
and sixty-day sentences differently for the purposes of determining
whether they are plainly unreasonable.
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in mitigation of sentence." Fed. R. Crim. P. 32(c)(3)(C) (emphasis
added). This is not merely a technical rule, but reflects our long
tradition of giving all defendants the right to directly address the
court and plead for mercy. See Green v. United States, 365 U.S. 301,
304 (1961); see also United States v. de Alba Pagán, 33 F.3d 125, 129
(1st Cir. 1994) ("It is designed to temper punishment with mercy in
appropriate cases, and to ensure that sentencing reflects
individualized circumstances."); see also Myers, 150 F.3d at 463
(stating that a remand is needed when a judge’s comments indicate that
he would be unmoved by anything the defendant might say during the
allocution). In keeping with the importance of this rule, if a
sentencing court fails to provide a defendant with the chance to
address the court, the reviewing court must remand the case for
resentencing, generally without needing to inquire into prejudice. See
de Alba Pagán, 33 F.3d at 130.
To satisfy the requirements of Rule 32(c)(3)(C), we encourage
the sentencing court to address the defendant personally, see Green,
365 U.S. at 304, and allow the defendant to speak on all topics which
the defendant considers relevant. See de Alba Pagán, 33 F.3d at 129.
The sentencing judge must be explicit when informing the defendant of
her right to allocute. See United States v. Edgecomb, 910 F.2d 1309,
1315 (6th Cir. 1990) (holding it insufficient when the sentencing judge
only questioned defendant on certain aspects of the presentence
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report); see also United States v. Navarro-Flores, 628 F.2d 1178, 1184
(9th Cir. 1980) (remanding for resentencing because the judge did not
address the defendant personally); United States v. Murphy, 530 F.2d
1 (4th Cir. 1976) (remanding for resentencing when the sentencing judge
engaged the defendant on a specific issue and then asked twice if there
was anything "you" want to add, to which the defense counsel and then
the prosecutor responded but never the defendant). Similarly, the
sentencing court must be clear in informing the defendant of her right
to speak broadly:
. . . 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.
de Alba Pagán, 33 F.3d at 129 (emphasis added).
There is no question here that the sentencing judge complied
with the requirements of Rule 32(c)(3)(C). Appellant made an
allocution before the judge began announcing the sentence. The issue
before us, however, is how to consider appellant's second statement to
the court. On the facts before us, in which the sentencing judge
indicated, prior to the imposition of sentence, that appellant would be
given an opportunity to respond, we hold that it was a continuation of
the allocution.
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The Federal Rules of Criminal Procedure do not accord a
defendant the right to a second allocution. In fact, the rules do not
even require a sentencing court to remind a defendant of the right to
allocute so long as the court clearly notifies the defendant once. See
United States v. Franklin, 902 F.2d 501, 506-07 (7th Cir. 1990)
(holding right to allocution not denied when judge addressed defendant
by name and asked him if he had anything to say but did not renew that
invitation after defense counsel finished speaking). However, the fact
that there is no right to a second allocution does not mean that a
sentencing court may not grant a defendant a second opportunity to
address the court.
Here, appellant interrupted the sentencing, expressing a
desire to speak again. Before the judge actually pronounced any
sentence, he acknowledged appellant's wish to speak and promised to
give her time to so respond. The judge did not need to grant
appellant's request, but he did.3 Appellant then proceeded to make her
statement, which was clearly intended to influence the length of her
sentence. She spoke about how it was unfair for the judge to conflate
3 Considering the importance of the right to allocute discussed above,
the judge may have erred on the side of caution in granting appellant's
request to speak again. He simply gave appellant the opportunity to
discuss all matters she thought needed to be addressed in relation to
her sentence. It is an example of a sentence judge applying Rule
32(c)(3)(C) "liberally." United States v. Barnes, 948 F.2d 325, 328
(7th Cir. 1991).
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her with the masked men because they had never been tried and their
identities never established. She said, specifically:
But what justice are you imparting when you are
presuming that at this point in time when you're
passing sentence upon me the people who were
hooded there were not people who were working for
the Navy and following the orders of Navy
personnel? When did they come before you in this
court?
Not only was appellant making a plea to the judge to mitigate her
sentence. She was also engaging the judge with specific references to
the judge's own concerns. This fits the purpose of the allocution
right which "envisions a personal colloquy between the sentencing judge
and the defendant." Myers, 150 F.3d at 461 (emphasis in original).
Unfortunately for appellant, her statement did not have the
intended effect of lowering her sentence. Rather, the judge increased
her sentence. There are several reasons why the judge may have done
this, all permissible within his discretion in sentencing. First,
appellant essentially declared herself innocent of crime and thus was
refusing to acknowledge the impact of her illegal action. Second, in
her comments, she disparaged the validity of the law she broke,
accusing the United States Navy of breaking the "greater law." Her
statements certainly suggest a lack of remorse, an attempt to avoid
responsibility for her actions, and even a likelihood of repeating her
illegal actions. Any of these reasons may have legitimately led the
sentencing judge to increase appellant's sentence.
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The question then becomes whether the sentencing judge
properly considered appellant's statements when he increased her
sentence.4 Rule 35(c)(3)(C) requires a judge to always consider a
defendant's allocution when imposing sentence, even if the judge had
previously announced a tentative sentence before the exercise of
defendant's right of allocution. See United States v. Mata-Grullon,
887 F.2d 23 (1st Cir. 1989) (per curiam); see also United States v.
Margiotti, 85 F.3d 100 (2d Cir. 1996); United States v. Wolfe, 71 F.3d
611, 614-15 (6th Cir. 1995); United States v. Laverne, 963 F.2d 235
(9th Cir. 1992). When a judge announces a sentence before hearing an
allocution, it is fair to assume that such a sentence is tentative and
that the judge will consider the defendant's statements before imposing
a final sentence. See Mata-Grullon, 887 F.2d at 25; see, e.g.,
Margiotti, 85 F.3d at 104 (holding that in case where the sentencing
judge forgot to give defendant opportunity to speak before announcing
a sentence but then promptly rectified the error by allowing defendant
to speak, the sentence was not imposed until after defendant
allocuted); Laverne, 963 F.2d 235 (holding the right to allocute was
not violated when court announced a tentative sentence and then allowed
defendant a right of allocution).
4 At oral argument, appellant's counsel argued that the sentencing
judge could have considered appellant's statement only for the purposes
of lowering her sentence. There is no support for such a proposition.
If the judge had the authority to adjust appellant's sentence downward,
he had the authority to adjust it upward.
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Here, the sentencing judge granted appellant the right to
speak before he sentenced her. While so engaged, appellant interrupted
the sentencing for the purpose of refuting the judge's commentary and,
obviously, for the purpose of influencing his pronouncement. Before
continuing her sentencing, the judge indicated he would grant appellant
the opportunity to be heard again. After imposing the forty days'
sentence, the judge then allowed appellant to continue her allocution.
The sentencing judge was fully justified in considering her full
allocution, which included her comments during the second part of her
allocution. Because of the way the hearing developed, the forty-day
sentence was functionally a tentative sentence. See Mata-Grullon, 887
F.2d at 25; see also Laverne, 963 F.2d 235. Thus, the sixty-day
sentence was properly imposed in response to appellant's full
allocution.
III.
Notwithstanding the sentencing court's discretion to alter
her sentence in response to her continuing allocution, appellant claims
that her sentence is invalid for two reasons.
A.
First, appellant asserts that the district court imposed an
additional twenty days because of its perceived "defiance" of the
appellant and that such a penalty is a punishment for criminal
contempt. She also contends that the district court failed to comply
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with the strict procedural requirements for punishing criminal
contempt. See Fed. R. Crim. P. 42(a) (requiring the court to certify
that it witnessed the contemptuous conduct and enter an order reciting
the facts). We agree with appellant's contention that the district
court did not comply with the requirements for criminal contempt under
Rule 42(a), but we disagree that the disputed twenty day increase is a
criminal contempt sanction.
Appellant points to two facts in support of her argument that
the additional twenty days' imprisonment is a criminal contempt
sanction: (1) the district court said that the appellant was becoming
"defiant" before announcing the sixty-day sentence and (2) the district
court had already announced a sentence of forty days' imprisonment.
We have held that it is necessary to look to the "purpose and
character of the sanctions imposed" and not to the name used by the
district court when evaluating whether a particular sanction is for
criminal contempt. In re Kave, 760 F.2d 343, 351 (1st Cir. 1985); see
also United States v. Winter, 70 F.3d 655, 660 (1st Cir. 1995) (holding
that the characterization of a contempt sanction is a question of law
and is not binding on this Court). While these cases deal with the
distinction between civil and criminal contempt, the label affixed by
a district court need not be controlling regardless of whether the
district court called it contempt in the first place. Hicks v. Feiock,
485 U.S. 624, 629 (1988). Here, the sentencing court was explicit that
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there was no contempt finding at all. When it considered appellant's
motion for bail on appeal, the court said, "The longer sentence that
the Court imposed on Defendant was not based on a finding of contempt."
However, neither of the facts cited by appellant persuades us to
overlook the district court's overt statement that there was no
contempt finding here. As discussed above, the sentencing court raised
appellant's sentence in response to her continuing allocution.
Even if appellant's behavior at sentencing had risen to the
level of clear contempt,5 the sentencing court maintains flexibility in
how to deal with such conduct. See United States v. Pina, 844 F.2d 1,
14 (1st Cir. 1988) ("The contempt power, however, is not the only
weapon available to a judge to protect the order and dignity of the
courtroom in the face of an openly contumacious defendant."). One
alternate tool is to remove the contemptuous party from the courtroom,
see id. at 14-15, as the judge did here. The fact that the judge
adopted alternate means to deal with a "defiant" defendant suggests
even more strongly that the increased sentence was not a contempt
sanction.
5 The district court warned appellant that she was becoming "defiant"
part way through her second statement. Appellant then continued to
speak, in Spanish. While we do not have a record of appellant's
Spanish statements, we assume that had appellant's Spanish statements
risen to the level of criminal contempt, the district court would have
stopped appellant, had her comments translated for the record, and made
a contempt finding. In the absence of such action by the district
court, we assume that appellant said nothing which rose to the level of
criminal contempt.
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B.
Second, appellant argues that the district court did not make
a clerical, technical, or other clear mistake when imposing the
original forty-day sentence, so it lacked authority to later alter that
sentence. See Fed. R. Crim. P. 35(c) ("The court, acting within 7 days
after the imposition of sentence, may correct a sentence that was
imposed as a result of arithmetical, technical, or other clear
error."). Rule 35(c) is a very narrow rule:
The authority to correct a sentence under this
subdivision is intended to be very narrow and to
extend only to those cases in which an obvious
error or mistake has occurred in the sentence,
that is, errors which would almost certainly
result in a remand of the case to the trial court
for further action under Rule 35(a). The
subdivision is not intended to afford the court
the opportunity . . . simply to change its mind
about the appropriateness of the sentence.
Fed. R. Crim. P. 35(c) advisory committee's note; see also United
States v. Aqua-Leisure Indus., Inc., 150 F.3d 95, 96 (1st Cir. 1998)
(noting that Rule 35 was amended to restrict the discretion of the
district court in altering a lawfully imposed sentence). We agree with
appellant that the original sentence did not suffer from any error
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allowing alteration under Rule 35(c).6 However, we also find that the
sentencing court did not alter her sentence under Rule 35(c).
IV.
Appellant's sentence is valid because it was imposed after
appellant's full allocution before final sentencing. Therefore, we
affirm the sixty-day sentence.
Affirmed.
6 Because we hold that there was no alteration under Rule 35(c), we
find it unnecessary to address the complicated question of exactly when
a sentence is imposed for purposes of Rule 35(c). Currently, there is
a circuit split on this issue. Many circuits look to the oral
imposition of sentence. Compare United States v. Aguirre, 214 F.3d
1122, 1125 (9th Cir. 2000) (holding that oral imposition of sentence
begins seven day clock for Rule 35(c)); see also United States v.
Morrison, 204 F.3d 1091, 1094 (11th Cir. 2000) (same); United States v.
González, 163 F.3d 255, 263-64 (5th Cir. 1998) (same); United States v.
Abreu-Cabrera, 64 F.3d 67, 73-74 (2d Cir. 1995) (same); United States
v. Layman, 116 F.3d 105, 108-09 (4th Cir. 1994) (same); United States
v. Townsend, 33 F.3d 67, 73 (10th Cir. 1994) (same); with United States
v. Clay, 37 F.3d 338, 340 (7th Cir. 1994) (holding that a sentence is
not imposed until judgment enters, for purposes of Rule 35(c)). This
circuit has not decided this issue, but we have suggested that we will
look to the date judgment enters, not oral pronouncement. See United
States v. Morillo, 8 F.3d 864, 869 n.8 (1st Cir. 1993).
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