U.S. v. Cole, 93-5021

• Decision Date: 30 June 1994
• Docket Number: No. 93-5021,93-5021
• Citation: 27 F.3d 996
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Jay COLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 996

27 F.3d 996

UNITED STATES of America, Plaintiff-Appellee, v. William Jay COLE, Defendant-Appellant.

No. 93-5021.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1994.

Decided June 30, 1994.

ARGUED: William Michael Frazier, Frazier & Oxley, L.C., Huntington, WV, for appellant. William David Wilmoth, U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: Thomas O. Mucklow, Asst. U.S. Atty., Wheeling, WV, for appellee.

Before HALL and LUTTIG, Circuit Judges, and BRINKEMA, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge K.K. HALL wrote the majority opinion, in which District Judge BRINKEMA joined. Judge LUTTIG wrote a dissenting opinion.

OPINION

K.K. HALL, Circuit Judge:

William Jay Cole appeals the 63-month sentence he received on a conviction for possession of crack cocaine with intent to deliver. We find error in the manner in which the sentencing hearing was conducted, and we vacate the sentence and remand for resentencing.

I

In 1988, Cole sold a police informant 1.2 grams of crack for $300. The informant testified at trial that he had purchased crack from Cole on four or five other occasions in 1988. During the controlled buy, which was tape-recorded, Cole and the informant discussed a $1,200 drug debt owed by the informant to Cole for prior drug purchases. Cole did not testify. He was convicted of the single charge.

At the sentencing stage, the government put on evidence that $1,200 would have been enough to buy about 4.8 grams of crack. In the presentence report, the probation officer recommended that Cole be held accountable for 6 grams--the estimated 4.8 grams, plus the 1.2 grams involved in the controlled buy. Under U.S.S.G Sec. 2D1.1(a)(3), a 6-gram finding results in a base offense level of 26. No other adjustments to the offense level were recommended. An offense level of 26, in conjunction with a Criminal History of I, yields a sentencing range of 63-78 months.

After extended argument on the amount of crack to be attributed to Cole, the court ruled that the 6-gram amount had been satisfactorily proved. The court also accepted the other recommendations of the probation officer and sentenced Cole at the bottom of the range. After the sentence was announced, including terms of supervised release, a $1,500 fine and a $50 assessment, the following colloquy occurred:

THE COURT: ... Does the defendant have anything further to say in regard to--

[DEFENSE COUNSEL]: Your Honor, I think the defendant himself would like to address the Court.

THE COURT: I did fail to notice the defendant he had the right to appeal the judgment of the Court within a period of ten days.

[DEFENSE COUNSEL]: Yes, sir.

THE DEFENDANT: Can I say something now, Your Honor?

THE COURT: Pardon?

THE DEFENDANT: May I address the court myself?

THE COURT: You ask your counsel that. What--I don't know what you want to ask the Court.

THE DEFENDANT: I just want to clarify something to the Court on this case.

THE COURT: Ask your counsel before you say anything. Your might say something that harms you.

[DEFENSE COUNSEL]: Your honor, I think the import of my client's remarks to the Court would be that the Government's chief witness, Mr. Hairston [the informant], was not accurate in his testimony to the jury and to the Court.

I think what he would like to do is simply address to you perhaps some of the things that he indicated to me that he put in a letter to you. I don't know. And perhaps that would be a better forum.

THE COURT: That would be something that he may use to address the Court. He will have a right to appeal. And the Court will notify him of his right to appeal within a period of ten days from this day.

Is there anything further?

[DEFENSE COUNSEL]: No, Your Honor.

Cole now contends that he was denied his right of allocution. We agree that the right was denied, and we believe that the error was prejudicial and should be redressed.

II

No objection to the denial of allocution was made in the district court, so the error is subject to review for plain error. See United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also United States v. Lewis, 10 F.3d 1086 (4th Cir.) (applying plain error analysis to allocution denial). The Olano analysis requires us to first determine whether there was error and, if so, whether the error was "plain."

A

"Before imposing sentence, the court shall ... address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(a)(1)(C). The rule is not satisfied by "[m]erely affording the Defendant's counsel the opportunity to speak...." Id. at 1092 (citing Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961)); see also United States v. Stuver, 845 F.2d 73 (4th Cir.1988) (record must reflect that defendant knew that he had a right to speak in mitigation). In Cole's case, the colloquy set out above occurred after the court had announced the sentence. Moreover, the court appeared to discourage Cole from speaking--"Ask your counsel before you say anything"--and his counsel, though not certain what his client wanted to say, answered for him. "[T]rial 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 304-05, 81 S.Ct. at 655-56; see United States v. Miller, 849 F.2d 896 (4th Cir.1988); United States v. Phillips, 936 F.2d 1252, 1256 (11th Cir.1991) (collecting cases). We do not hesitate in ruling that this right was not adequately afforded to Cole and that the district court committed error that is plain.

B

As in Lewis, the focus of our inquiry is the third prong of the plain error analysis--did the denial of the right of allocution "affect[ ] substantial rights?" See Lewis, 10 F.3d at 1092 (citing Olano, --- U.S. at ----, 113 S.Ct. at 1778). Our decision in Lewis has foreclosed any argument that a denial of allocution per se affects "substantial rights" as that term is used in Olano. Nevertheless, we believe we should examine each case to determine whether the error was prejudicial.

In Lewis, we found no prejudice because the defendant had "received the shortest sentence allowed by statute," i.e., the low end of the applicable sentencing range, and "[n]othing [the defendant] might have said in allocution could have reduced his sentence...." 10 F.3d at 1092. Absent any possibility of a lesser sentence, we deemed a remand for reimposition of the same sentence "a fruitless exercise" and affirmed. Id. ¹ In Cole's case, however, we can identify at least two grounds upon which the court might have imposed a reduced sentence.

Cole may have been able to persuade the court that he was accountable for less than the 6 grams of crack being attributed to him. For instance, a finding of less than 5 grams reduces the base offense level by two. See U.S.S.G. Sec. 2D1.1(c)(10). Moreover, the probation officer recommended that Cole not receive a 2-level reduction for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1(a). However, had Cole addressed the court, there was the possibility that the court could have been persuaded to award the 2-level reduction; a 2-level reduction translates to a shift in the applicable sentencing range from 63-78 months to 51-63 months. As long as this possibility remained, we are unable to say that Cole was not prejudiced by the denial of his right to allocute prior to the imposition of sentence. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green, 365 U.S. at 304, 81 S.Ct. at 655.

C

Even after finding error that is both plain and prejudicial, we must still decide whether to exercise the remedial discretion granted by Fed.R.Crim.P. 52(b). We should correct forfeited errors only if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, --- U.S. at ----, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). When a defendant was unable to address the court before being sentenced and the possibility remains that an exercise of the right of allocution could have led to a sentence less than that received, we are of the firm opinion that fairness and integrity of the court proceedings would be brought into serious disrepute were we to allow the sentence to stand.

The sentence is vacated, and the case is remanded for resentencing in accordance with this opinion. ²

VACATED AND REMANDED.

LUTTIG, Circuit Judge, dissenting:

In vacating Cole's sentence, the majority first holds that the district court committed "plain error" in assertedly not allowing Cole his right of allocution mandated by Fed.R.Crim.P. 32(a)(1)(C), and then holds that under United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), this error affected Cole's "substantial rights" to such a degree that his sentence must be vacated. The first of these conclusions is erroneous as a factual matter, for the district court satisfied the Rule 32 requirements in a colloquy not even referenced by the majority. The second of its conclusions is based upon a misreading of the Supreme Court's decision in United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), so as to relieve the defendant of his burden of showing prejudice in order to obtain reversal on the grounds of "plain error." For these reasons, I dissent.

I.

The majority holds that the district court committed "plain error" by failing, prior to imposing sentence, to address Cole personally and " 'determine if [he] wishe[d] to make a statement and to present any information in mitigation of the sentence.' " Ante, at 998 (quoting Fed.R.Crim.P. 32(a)(1)(C)). It does so by excerpting from...