[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 20, 2002
No. 01-13406 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 00-01128-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ALFONSO QUINTANA,
a.k.a Miguel Quintana-Alfonso,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 20, 2002)
Before BIRCH and WILSON, Circuit Judges, and SHAPIRO, District Judge.
WILSON, Circuit Judge:
________________________
*Honorable Norma L. Shapiro, U.S. District Judge for the Eastern District of Pennsylvania, sitting
by designation.
Miguel Alfonso Quintana appeals the district court’s imposition of a thirty-
seven-month sentence pursuant to his plea of guilty to a charge of conspiracy to
possess with the intent to distribute 500 or more grams of cocaine in violation of
21 U.S.C. § 846. Quintana argues that the district court erred in (1) refusing to
consider his motion for a downward departure from the applicable guideline range;
and (2) failing to address him personally to allow him the opportunity to allocute
before the imposition of sentence. After carefully reviewing the parties’ briefs and
the record on appeal, we find no reversible error, and affirm Quintana’s sentence.
I.
The district court rejected Quintana’s motion for a downward departure as
untimely and refused to permit oral argument on the merits of the motion. The
district court decision was tacitly based upon Rule 88.8(6) of the Local Rules of
the United States District Court for the Southern District of Florida, which
mandates that motions for departure be filed no later than five days prior to the
sentencing proceeding. Quintana did not file his request for departure until the day
before the sentencing hearing; hence, his motion was not timely filed, and the
district court’s refusal to consider the merits of his motion was a proper application
of the Local Rule.
2
It has been suggested that procedural time limits on requests for departure,
such as those embodied in Local Rule 88.8(6), may conflict with our holding in
United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled in part on other
grounds by United States v. Morrill, 984 F.2d 706, 707–708 (11th Cir. 1993)). In
Jones, we outlined a rule requiring district courts to permit the parties to fully
articulate any objections they have “to the sentence or to the manner in which the
court pronounced it.” Id. at 1102. The district court’s failure to permit Quintana to
argue the merits of his motion for downward departure is alleged to conflict with
the Jones rule.
There is no tension between Jones and procedural rules for the proper filing
of motions for downward departure, because the two rules address different
aspects of the sentencing process. The rule announced in Jones is a mechanism for
ensuring that any disputes over the ultimate sentence, once properly raised, are
preserved for our review. Jones thus requires that the parties be given an
opportunity at the sentencing hearing to articulate any properly filed objections to
the findings made in the presentence report (PSI). Id. (“Therefore, the district
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court must give the parties an opportunity . . . to resolve the objections contained in
the [PSI] addendum.”).1
The rule announced in Jones also recognizes that certain objections may
arise at the sentencing hearing that could not have been anticipated through a
prehearing review of the PSI. New objections may need to be raised if, “[f]or
example, the district court [does] not adopt as its own findings of fact the facts
recited in the report or apply the guidelines in the manner proposed.” Id.
Therefore, Jones requires the court to elicit any novel objections, along with the
grounds for those objections, after the imposition of sentence. This requirement
“serve[s] the dual purpose of permitting the district court to correct on the spot any
error it may have made and of guiding appellate review.” Id.
There is nothing in Jones, however, that requires district courts to permit
argument at the sentencing hearing on the merits of objections to the PSI, or
motions for downward departure, that were not initially raised in a timely fashion.
The sentencing guidelines urge federal district courts to “adopt procedures to
1
Jones does not mention the necessity of giving the parties the opportunity to
argue the merits of properly filed motions for downward departure. This is likely
because Jones is primarily concerned with the preservation of a record on appeal,
and a district court’s refusal to depart downward is not appealable unless the
district court erroneously thought that it lacked the discretion to do so. United
States v. Patterson, 15 F.3d 169, 171 (11th Cir. 1994).
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provide for . . . the narrowing and resolution, where feasible, of issues in dispute in
advance of the sentencing hearing; and the identification for the court of issues
remaining in dispute.” U.S.S.G. § 6A1.2. Local Rule 88.8(6) represents a
reasonable effort to ensure that challenges to the proposed application of the
guidelines be identified prior to the sentencing hearing. Jones does not mandate
that district courts entertain arguments on the merits of time-barred objections to
the PSI or motions for departure. Rather, it simply requires that courts give parties
the opportunity (1) to articulate any novel objections to the sentence or the
sentencing procedure; and (2) to resolve any properly filed objections to the PSI or
prehearing motions.
In the instant case, the court refused to address the merits of Quintana’s
untimely motion for downward departure. It did, however, give Quintana the
opportunity to object to the finding that the motion was untimely, which he appears
to have done.2 That is the only issue properly before us with respect to the motion
for downward departure. Quintana’s claim that his motion was timely filed is
without merit. We therefore affirm the district court’s dismissal of that motion.
2
Quintana asked the court to reconsider its initial refusal to consider the
merits of the motion. Later, the court appears to have referred to this request for
reconsideration as an “objection,” and we will construe it as such.
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II.
Quintana was not addressed by the court personally and given an
opportunity to allocute prior to the imposition of his sentence.3 Quintana argues
that the district court’s failure to address him and permit him to allocute, even
though he did not object to this omission, mandates that we vacate his sentence and
remand the case for a new sentencing proceeding.
Federal Rule of Criminal Procedure 32(c)(3)(C) requires the district court
“[b]efore 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 district court must clearly inform
the defendant of his allocution rights, leaving no room for doubt that the defendant
has been issued a personal invitation to speak prior to sentencing.” United States
v. Gerrow, 232 F.3d 831, 833 (11th Cir. 2000) (per curiam), cert. denied, __ U.S.
__, 122 S. Ct. 75 (2001).
A defendant’s right to address the court personally prior to the imposition of
sentence serves several compelling values. The ability to speak directly to the
3
Prior to imposing sentence, the court did ask Quintana’s attorney if there
was “anything further that you or your client would like to say?” The court never
addressed Quintana personally, and the government concedes that Quintana was
not given the opportunity to allocute as required by Federal Rule of Criminal
Procedure 32(c)(3)(C). Brief for the United States at 22.
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sentencing judge “gives the defendant one more opportunity . . . to throw himself
on the mercy of the court.” United States v. Dabeit, 231 F.3d 979, 981 (5th Cir.
2000) (per curiam), cert. denied, 531 U.S. 1202 (2001). The defendant’s
comments may, in some circumstances, have a tangible effect on the sentence
imposed; the Supreme Court has noted that “[t]he most persuasive counsel may not
be able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961). However,
even in situations where a defendant’s comments stand little chance of influencing
the sentencing judge, the right retains a symbolic significance. Dabeit, 231 F.3d at
981. After having the opportunity to address the court personally, a defendant can
rest assured that the court is aware of any individual circumstances necessary to the
imposition of a fair sentence. In this way, regardless of the outcome, allocution
helps “maximiz[e] the perceived equity of the [sentencing] process.” Id.
Nonetheless, our case law makes it clear that a district court’s failure to
permit a defendant to allocute at sentencing does not rise to the level of a
constitutional error or a fundamental procedural defect, such that the omission is
“inconsistent with the rudimentary demands of fair procedure.” United States v.
Tamayo, 80 F.3d 1514, 1521 (11th Cir. 1996) (internal quotation marks omitted).
If the defendant does not object to the district court’s failure to permit allocution at
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sentencing, we will remand only if the failure results in manifest injustice. Id. Our
case law equates manifest injustice with the plain error standard of review. United
States v. McClendon, 195 F.3d 598, 603 (11th Cir. 1999) (per curiam). To
demonstrate manifest injustice, a petitioner must demonstrate (1) that there was
error; (2) that was plain; (3) that affected his substantial rights; and (4) that
affected the fundamental fairness of the proceedings. Johnson v. United States,
520 U.S. 461, 466–67 (1997).
In the instant case, Quintana cannot meet this high bar, because he was
sentenced to the lowest term of imprisonment permissible under the guidelines and
he is unable to articulate anything that he could have said that could have driven
the sentence below the lowest end of the guideline range. See Gerrow, 232 F.3d at
834 (finding no manifest injustice when appellant was sentenced at the low end of
the guideline range and could not offer any facts that, if articulated by the
defendant before sentencing, would have resulted in a lower sentence); United
States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir. 1998) (per curiam)
(finding no manifest injustice where the defendant, despite a failure to allocute,
received the lowest possible sentence under the guidelines). We see no manifest
injustice in Quintana’s sentence. Hence, we decline to disturb that sentence on
appeal.
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For the forgoing reasons, Quintana’s sentence is
AFFIRMED.
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