United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 97-2216/2218
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* Western District of Missouri.
Ronald A. Patterson, * [PUBLISHED]
*
Appellant. *
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Submitted: November 4, 1997
Filed: November 13, 1997
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Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Ronald A. Patterson appeals the sentence imposed on him by the district court
following the revocation of his supervised release. Because we believe that Patterson
had a right to be afforded an opportunity for allocution prior to the imposition of
sentence, and that the court&s failure to provide him with this opportunity was not
harmless error, we vacate Patterson&s sentence and remand for resentencing.
In 1989, Patterson pleaded guilty to possessing 500 or more grams of cocaine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and to
failing to appear for a court proceeding, in violation of 18 U.S.C. §§ 3146(a)(1),
(b)(A)(i), and 2. The district court sentenced Patterson to a total of 88 months
imprisonment and five years supervised release.
Patterson began serving his supervised-release term in November 1995, and in
April 1997, the district court issued an arrest warrant against Patterson for allegedly
violating conditions of his supervised release. At Patterson&s revocation hearing--after
Patterson stipulated that he had possessed controlled substances, knowing it was a
violation of his supervised release conditions--the court departed upward from the
suggested Guidelines range, and imposed concurrent sentences of 36 months
imprisonment on the drug count and 24 months imprisonment on the failure-to-appear
count. The court stated the upward departure was appropriate because Patterson had
“chosen to reinvolve [himself] with the possession of and activity in relation to
controlled substances” and society needed protection from “further criminal activity of
this type from you.” When defense counsel objected to the lack of advance notice of the
court&s intention to depart upward, the court allowed counsel to respond to the enhanced
sentence, but then reimposed the 36- and 24-month sentences, referring again to
Patterson&s relapse into “activity involving controlled substances.”
On appeal, Patterson argues reversal is required because the district court failed
to grant him allocution prior to imposing sentence upon him, in violation of Federal Rule
of Criminal Procedure 32 and due process. The government maintains that the court&s
omission was inadvertent and that any error was harmless.
We have previously noted that it is an unsettled question in this circuit “[w]hether
Rule 32&s right of allocution applies to sentencing” in probation-revocation proceedings.
See United States v. Iversen, 90 F.3d 1340, 1345-46 (8th Cir. 1996). In Iversen, we did
not reach the issue, because we determined that the right of allocution was satisfied as
the defendant had testified extensively at the probation-revocation hearing and her
“views on sentencing were fully known.” Id. Unlike the defendant in Iversen, however,
Patterson did not testify at his revocation hearing. Thus, contrary to
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the government&s suggestion, we conclude that this case squarely presents the issue of
whether a right of allocution exists in revocation-of-supervised-release hearings.
Initially, we recognize the right of allocution is not a constitutional one. See Hill
v. United States, 368 U.S. 424, 428 (1962) (district court&s failure to ask counseled
defendant whether he has anything to say before imposition of sentence is not
constitutional error). Rather, the right of allocution derives from the Federal Rules of
Criminal Procedure. The rule governing “Sentence and Judgment,” Rule 32(c)(3)(C),
requires district courts, before imposing sentence, 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.” The rule governing hearings on revocation
of probation or supervised release, Federal Rule of Criminal Procedure 32.1(a)(2),
provides the following rights: written notice of the alleged violation; disclosure of
incriminating evidence; an opportunity to appear and present evidence, and to question
adverse witnesses; and notice of the right to be represented by counsel.
While Rule 32.1 does not specifically delineate a right of allocution, or otherwise
address imposition of sentence following revocation of supervised release, Rule 32 is not
expressly limited to sentencing immediately following conviction. We agree with the
Ninth Circuit that Rules 32 and 32.1 are “complementing rather than conflicting,” and
that Rule 32 applies to sentencing upon revocation of supervised release when the court
imposes a new sentence based on conduct that occurred during supervised release. See
United States v. Carper, 24 F.3d 1157, 1159-60, 1162 (9th Cir. 1994) (rejecting
argument that defendant was entitled only to Rule 32.1 procedures, as Rule 32 governs
decision of what sentence to impose and Rule 32.1 governs decision whether to revoke
supervised release; concluding district court therefore erred by
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failing to address defendant personally to determine if he wished to speak on his behalf
before sentence was imposed).1
We also conclude that deprivation of the right of allocution was not harmless error
under Federal Rule of Criminal Procedure 52(a) (any error or defect which does not
affect substantial rights shall be disregarded). See Carper, 24 F.3d at 1162 (concluding
district court&s failure to afford defendant his right of allocution was not harmless error,
because court had discretion to impose sentence shorter than one selected). In support
of its argument that only harmless error occurred, the government notes that defense
counsel argued against the upward departure. In discussing a prior version of Rule 32,
however, the Supreme Court recognized that a defendant--not merely defendant&s
counsel--must be afforded an opportunity personally to address the court prior to
sentencing, see Green v. United States, 365 U.S. 301, 303-04 (1961) (“The most
persuasive counsel may not be able to speak for a defendant as the defendant might, with
halting eloquence, speak for himself”); Barnes, 948 F.2d at 328 (noting Green holding
was later codified into Rule 32), and we have previously suggested that the failure to
comply with Rule 32&s requirement of affording a defendant the right of allocution
constitutes reversible error per se which mandates a remand for resentencing, see United
States v. Walker, 896 F.2d 295, 301 (8th Cir. 1990) (harmless error review not
conducted).
1
Furthermore, our holding today is consistent with the Fifth and Seventh Circuits
which have vacated sentences imposed following the revocation of probation when the
defendant was not afforded the right of allocution prior to the imposition of sentence.
See United States v. Barnes, 948 F.2d 325, 329, 331-32 (7th Cir. 1991) (defendant had
originally received suspended sentence and probation; holding Rule 32 places burden
on court to inquire whether defendant wishes to speak in probation-revocation
proceeding); United States v. Turner, 741 F.2d 696, 696-97, 699 (5th Cir. 1984)
(defendant originally had received deferred sentence and probation). But see United
States v. Coffey, 871 F.2d 39, 41 (6th Cir. 1989) (holding allocution is not required
before resentencing after probation revocation, where defendant was originally
sentenced to custody to be followed by probation).
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Accordingly, we vacate Patterson&s sentence and remand for resentencing.2
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
We do not reach the merits of Patterson&s claim that the district court relied on
materially false information in determining his sentence, because he raises it for the first
time on appeal. See United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993)
(to preserve issue for appeal, defendant must timely object and clearly state grounds
for objection so that trial court has opportunity to prevent or correct error).
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