USCA11 Case: 20-13286 Date Filed: 02/26/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13286
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00124-CEM-DCI-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONIEL CHRISTOPHER RUSSELL,
a.k.a. OG Russell,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 26, 2021)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Oniel Russell, a counseled federal prisoner, appeals his sentence of 18
months’ imprisonment and one year of supervised release, imposed when the
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district court resentenced Russell following our remand in his initial direct appeal.
On an unopposed motion for summary reversal, Russell argues that the district
court plainly erred by failing to allow him to allocute during his resentencing
hearing and that the error affected his substantial rights. After careful review, we
grant Russell’s motion for summary reversal.
Summary disposition is appropriate when “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question as to
the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969).1
We review the district court’s denial of a defendant’s right to allocute at
sentencing for plain error when the defendant failed to object before the district
court. United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017). Plain error
review requires a defendant to show that (1) there was an error, (2) it was plain, (3)
it affected substantial rights, and (4) it seriously affected the fairness of the judicial
proceedings. Id. “An error is plain if it is clear or obvious.” United States v.
Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020) (internal quotation marks omitted).
And an error affects a defendant’s substantial rights if there is “a reasonable
probability that, but for the error, the outcome of the proceeding would have been
1
We are bound by cases decided by the former Fifth Circuit before October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2
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different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(internal quotation mark omitted).
The right to allocution “provides a defendant the opportunity to plead
personally with the district court for leniency in sentencing and to state any
potentially mitigating factors for consideration.” United States v. Machado, 886
F.3d 1070, 1087 (11th Cir. 2018). Federal Rule of Criminal Procedure
32(i)(4)(A)(ii) codifies that right. It requires the district court, before imposing
sentence, to “address the defendant personally in order to permit the defendant to
speak or present any information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(ii). We have found plain error where the court failed to address the
defendant personally. See United States v. Perez, 661 F.3d 568, 584–85 (11th Cir.
2011) (per curiam) (finding plain error where the district court asked defense
counsel—rather than the defendant—whether the defendant would allocute). Here,
the district court did not address Russell personally to give him an opportunity to
allocute—the court appeared to address Russell only though his counsel. This
constitutes plain error.
Having determined that Russell satisfies the first two prongs of the plain-
error test, we next consider whether he was prejudiced by the error. We presume
that failure to address the defendant personally affects the defendant’s substantial
rights whenever the possibility of a lower sentence exists. Perez, 661 F.3d at 586.
3
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In Perez, we noted that the district court’s error affected Perez’s substantial rights
because he was sentenced above the low end of the guidelines range. Id. Since
Perez, we have held that, because the guidelines are no longer mandatory after
United States v. Booker, 543 U.S. 220 (2005), a defendant will generally be
entitled to a presumption that he was prejudiced by the district court’s failure to
afford him his right of allocution even if he received a sentence at the low end of
the advisory guidelines range. Doyle, 857 F.3d at 1120–21. Although Russell was
resentenced at the bottom of his guideline range both as to his term of
imprisonment (18 months) and his term of supervised release (one year), Russell
could have allocuted for a downward variance. See id. And because there was no
mandatory minimum term of supervised release, he could have allocuted for a
lesser term of supervised release, or for no supervised release at all.2 See 18
U.S.C. § 3583(b). Therefore, Russell has satisfied the third prong of the plain-
error test.
Finally, we consider the fourth prong: the effect on the fairness of the
judicial proceeding. “Because allocution plays a central role in the sentencing
process, the denial of this right is not the sort of isolated or abstract error that does
2
We also note that although Russell has completed his sentence of imprisonment and appears to
be serving his one-year term of supervised release, Russell’s challenge is not moot because his
sentence included the term of supervised release. United States v. Haymond, 139 S. Ct. 2369,
2379 (2019) (a final sentence includes any term of supervised release imposed).
4
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not impact the fairness, integrity or public reputation of judicial proceedings.”
United States v. Prouty, 303 F.3d 1249, 1253 (11th Cir. 2002) (internal quotation
marks omitted and alteration accepted). Therefore, we find that the denial of
Russell’s right to allocute seriously affected the fairness of the judicial
proceedings, thus satisfying the fourth element of the plain-error test.
In conclusion, Russell’s position is correct as a matter of law, and there is no
substantial question that the district court’s denial of his right to allocute
constituted a prejudicial and plain error. Accordingly, we GRANT Russell’s
motion for summary reversal and VACATE his sentence. 3 On remand, Russell is
entitled to an opportunity to allocute.
3
Russell asks, alternatively, that if we deny his motion for summary reversal, we stay the
briefing schedule and grant him 30 days to file a merits brief. Because we grant his motion for
summary reversal, the motion for stay is denied as moot.
5
United States v. Oniel Christopher Russell
Combined Opinion