[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 22, 2008
THOMAS K. KAHN
No. 07-12060
CLERK
________________________
D.C. Docket No. 01-00145-CR-WS
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JONATHAN LUKE CARRUTH,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 22, 2008)
Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER *, District
Judge.
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
PER CURIAM:
Jonathan Luke Carruth appeals a final judgment in which the district court
revoked his supervised release term and sentenced him to eighteen months in
prison—the maximum sentence permitted by statute—without an additional
supervised release term. Carruth argues that the district court plainly erred when it
failed to offer him the right of allocution at his supervised release revocation
hearing. We find that the district court plainly erred 1 by not personally addressing
Carruth and by not giving him the opportunity to personally speak to the court, as
required by Federal Rule of Criminal Procedure 32.1(b)(2)(E). Accordingly, we
vacate Carruth’s sentence and remand for a rehearing where Carruth is given the
opportunity to allocute.
Initially, we reject the government’s argument that the appeal waiver in
Carruth’s original plea agreement extends to his later revocation of supervised
release. There was no specific language in the original plea waiver indicating that
Carruth’s willingness to waive his right to appeal from a sentence entered in
accordance with the original plea was also a waiver of his right to appeal from his
future supervised release revocation.
Allocution is the right of the defendant to make a final plea on his own
1
For a plain error to have occurred, the error must be one that is obvious and is clear
under current law. United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).
2
behalf to the sentencing judge before his sentence. United States v. Behrens, 375
U.S. 162, 165 (1963); United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir.
2002). “[A]s early as 1689, it was recognized that the court’s failure to ask the
defendant if he had anything to say before sentence was imposed required
reversal.” Green v. United States, 365 U.S. 301, 304 (1961). In any probation or
supervised release revocation hearing, a defendant must be afforded “an
opportunity to make a statement and present any information in mitigation.” Fed.
R. Crim. P. 32.1(b)(2)(E).
Here, the question is whether Rule 32.1(b)(2)(E), like Rule 32(i)(4)(A)(ii),2
requires a sentencing court to directly address the defendant and afford him or her
the opportunity to personally address the court before imposing a sentence. We
find that it does.
In United States v. Frazier, 283 F.3d 1242, 1245 (11th Cir. 2002), we found
that Rule 32.1 did not incorporate the right of allocution in Rule 32 but urged the
Advisory Committee to address this gap in the law because the right of allocution
2
Fed. R. Crim P. 32(i)(4)(A)(ii) applies to a defendant’s original sentencing and provides
that a sentencing court must “address the defendant personally in order to permit the defendant
to speak or present any information to mitigate the sentence.” We have held that Rule 32
requires that the sentencing court address the defendant personally, and questions posed to
defendant’s counsel are insufficient in affording a defendant the opportunity to allocute. United
States v. Phillips, 936 F.3d 1252, 1255 (11th Cir. 1991); Prouty, 303 F.3d at 1251; see also
Black’s Law Dictionary 83 (8th ed.) (Allocution is “[a] trial judge’s formal address to a
convicted defendant, asking him or her to speak in mitigation of the sentence to be imposed.”).
3
is “both important and firmly embedded in our jurisprudence.”3 Rule 31.1(b)(2)(E)
was subsequently amended to “address [this] gap in the rule” by “explicitly
recogniz[ing] th[e] right [to allocution] at Rule 32.1(b)(2) revocation hearings.”
Fed. R. Crim. P. 32.1 advisory committee’s notes on 2005 amendments.
Additionally, the Supreme Court has held that “judges before sentencing
should, as a matter of good judicial administration, unambiguously address
themselves to the defendant. Hereafter trial judges should leave no room for doubt
that the defendant has been issued a personal invitation to speak prior to
sentencing.” Green, 365 U.S. at 305. In Green, the Court was interpreting an
earlier version of Rule 32 that tracks the current language of Rule 32.1. See United
States v. Pitre, 504 F.3d 657, 661–62 (7th Cir. 2007); United States v. O’Hallaren,
505 F.3d 633, 635–36 (7th 2007); United States v. Griggs, 431 F.3d 1110, 1113
(8th Cir. 2005). Thus, the right to allocute under Rule 32.1 is clearly not
substantively different from the right to allocute under Rule 32. It is clear under
current law that, at a revocation hearing, permitting only a defendant’s lawyer to
speak does not suffice. The court must personally extend to the defendant the right
3
In Frazier, as in this case, “[t]he record [was] clear that prior to sentencing the district
court did not provide Frazier with an opportunity to personally address the court.” 283 F.3d at
1244 (emphasis added).
4
of allocution.4
VACATED and REMANDED.
4
Prejudice is presumed when a defendant is not given the opportunity to allocute and
there exists the possibility of a lower sentence. Prouty, 303 F.3d at 1252–53 (noting that a
defendant suffers “manifest injustice” if he does not receive the lowest possible sentence within
the Guidelines range and the denial of the right of allocution is not the type of “abstract” or
“isolated” error that we may determine does not affect the fairness, integrity, or public reputation
of judicial proceedings); see also Olano, 507 U.S. at 732. Here, where Carruth did not receive
the lowest sentence possible within the Guidelines range, the district court’s error was
prejudicial and affected Carruth’s substantial rights.
5