United States v. Darcy Piloto

Case: 17-10184 Date Filed: 08/29/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-10184
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20710-KMM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DARCY PILOTO,

Defendant - Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 29, 2017)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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Darcy Piloto appeals his 120-month sentence, representing a 79-month

upward variance, for possession of a firearm and ammunition as a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). The sentence was imposed after his original

235-month sentence was vacated pursuant to Johnson v. United States, 135 S. Ct.

2551 (2015). On appeal, Piloto argues that the district court plainly erred by

failing to allow him an allocution before imposing his sentence. Further, Piloto

argues that his sentence is substantively unreasonable because the district court

relied too much on his criminal history to the exclusion of the other 18 U.S.C.

§ 3553(a) factors and his efforts at post-sentencing rehabilitation. After careful

review, we affirm.

I.

Piloto argues that the district court plainly erred by failing to allow him an

allocution before imposing his sentence. “Allocution is the right of the defendant

to make a final plea on his own behalf to the sentencing judge before his sentence.”

United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008) (per curiam). Under

Fed. R. Crim. P. 32(i)(4)(A)(ii), the court must, “before imposing [a] sentence,”

“address the defendant personally in order to permit the defendant to speak or

present any information to mitigate the sentence.” We review for plain error a

district court’s failure to allow allocution, if the defendant did not timely object.

United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). To find reversible

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error under this standard, we must conclude that “(1) an error occurred, (2) the

error was plain, and (3) the error affected substantial rights.” Id. at 1251–52. To

affect substantial rights, the plain error must be “prejudicial: It must . . . affect[]

the outcome of the district court proceedings.” United States v. Olano, 507 U.S.

725, 734, 113 S. Ct. 1770, 1778 (1993).

During the sentencing hearing, the district court announced the sentence

before allowing Piloto an opportunity for allocution. Because neither Piloto nor

his attorney objected to the post-sentence allocution, the plain error standard of

review applies. Piloto is correct that the sentencing court erred in announcing his

sentence before an opportunity for allocution and that the error was plain. See Fed.

R. Crim. P. 32(i)(4)(A)(ii). However, Piloto fails to demonstrate that the plain

error affected his substantial rights. The sentencing court afforded Piloto an

opportunity to allocute before the end of the sentencing hearing and, while

considering Piloto’s allocution, left open the possibility of changing the announced

sentence. Also, in response to the allocution—during which Piloto stated that the

court should consider his rehabilitation efforts—the district court explicitly stated

that it accepted Piloto’s representation of his rehabilitative efforts as true and

considered them but that the efforts were not sufficient to change the sentence

imposed. Piloto’s argument that the district court plainly erred fails.

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II.

Piloto argues that his sentence is substantively unreasonable because the

district court relied too much on his criminal history to the exclusion of the other

18 U.S.C. § 3553(a) factors and his efforts at post-sentencing rehabilitation. The

district court must impose a sentence “sufficient[] but not greater than necessary to

comply with the purposes” of § 3553(a)(2). 18 U.S.C. § 3553(a). Also, the district

court must “consider all of the § 3553(a) factors to determine whether they support

the sentence requested by a party,” United States v. Pugh, 515 F.3d 1179, 1189–90

(11th Cir. 2008). We review the substantive reasonableness of a sentence for

abuse of discretion, regardless of whether the sentence imposed is within the range

recommended by the Sentencing Guidelines. Gall v. United States, 552 U.S. 38,

51, 128 S. Ct. 586, 597 (2007). During review, we must “take into account the

totality of the circumstances, including the extent of any variance,” and “must give

due deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Id.

In imposing Piloto’s sentence, the district court explicitly considered all of

the § 3553(a) factors. Although the district court emphasized Piloto’s criminal

history during sentencing, “[p]lacing substantial weight on a defendant’s criminal

record is entirely consistent with § 3553(a) because five of the factors it requires a

court to consider are related to criminal history.” United States v. Rosales-Bruno,

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789 F.3d 1249, 1263 (11th Cir. 2015). Also, the district court explicitly stated that

it had considered Piloto’s rehabilitative efforts but declined to grant a downward

variance. Although a sentencing court may consider evidence of a defendant’s

post-sentencing rehabilitation, which could support a downward variance, the court

is not required reduce a sentence based on a showing of post-sentencing

rehabilitation. See Pepper v. United States, 562 U.S. 476, 481, 490, 505 n.17

(2011). In light of all the circumstances, we determine that the ultimate sentence is

reasonable.

AFFIRMED.

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