U.S. v. Luepke

• Decision Date: 24 July 2007
• Docket Number: No. 06-3285.,06-3285.
• Citation: 495 F.3d 443
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael E. LUEPKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 443

UNITED STATES of America, Plaintiff-Appellee, v. Michael E. LUEPKE, Defendant-Appellant.

No. 06-3285.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2007.

Decided July 24, 2007.

Peter M. Jarosz (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

T. Christopher Kelly (argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before RIPPLE, ROVNER and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Following a plea of guilty to a charge of conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, see 21 U.S.C. §§ 841(b)(1)(B), 846, Michael Luepke was sentenced by the district court to 240 months' imprisonment. He timely appeals his sentence. Because the district court did not afford him a meaningful opportunity to address the court prior to the imposition of sentence, we must vacate the sentence imposed and remand the case to the district court for a new sentencing proceeding.

I BACKGROUND

At his plea hearing, Mr. Luepke admitted to conspiring to distribute significant quantities of methamphetamine. Specifically, he admitted to traveling to Chisago City, Minnesota and to purchasing eight ounces of methamphetamine, six of which he distributed to other individuals before returning to his home in Rice Lake, Wisconsin. He also admitted that, during a several month period in 2004 and 2005, he regularly had sold methamphetamine in quantities ranging from 1.75 grams to ½ ounce to another couple in the Rice Lake area.¹

At Mr. Luepke's sentencing hearing, the district court heard argument from counsel about the findings of the pre-sentence report, the proper advisory guidelines calculation and whether any deviation from the advisory guideline range would be appropriate. Mr. Luepke's counsel focused primarily on his client's susceptibility to methamphetamine addiction because of his attention deficit hyperactivity disorder ("ADHD"). Counsel contended that methamphetamine use had improved Mr. Luepke's functional level without certain side effects brought on by his prescription medications. He also contended that, because Mr. Luepke had received no significant financial gain from his enterprise, the court should conclude that his sale of methamphetamine simply supported an addiction precipitated by his efforts to control his disorder. Mr. Luepke's attorney further urged the court to reduce the offense level for Mr. Luepke's acceptance of responsibility in pleading guilty to the offense.

The district court agreed with the recommendations of the pre-sentence report about drug quantity, as well as its conclusion that Mr. Luepke's conduct warranted an obstruction enhancement and no reduction for acceptance of responsibility. With the offense level thus calculated to be 36, and based on a criminal history category of II, the court concluded that the appropriate advisory guidelines range was 210 to 262 months. Having announced the sentencing guidelines range, the district court then "call[ed] upon counsel for those comments as it relates to that sentence to be imposed." Id. at 9. Mr. Luepke's counsel declined to make further argument.

The court then considered certain of Mr. Luepke's counsel's prior arguments regarding Mr. Luepke's ADHD, but found that none lessened Mr. Luepke's culpability for the admitted conduct. The court noted that Mr. Luepke "appears to have become one of the largest distributors in the Rice Lake area" and that such conduct could not be attributable solely to his addiction. Id. at 10. Turning to the statutory sentencing factors, see 18 U.S.C. § 3553(a), the court concluded that a sentence in the middle of the applicable guidelines range was appropriate to hold the defendant accountable, to serve as a deterrent and to promote respect for the law.

Without further presentations from counsel and without inviting any comment from Mr. Luepke about the appropriate sentence, the court then stated, "[a]ccordingly, as to Count 1 of the indictment it is adjudged the defendant is committed to the custody of the Bureau of Prisons for imprisonment for a term of 240 months." Id. at 13. The court immediately detailed the terms of confinement and supervised release. Id. at 13-14.

Having announced the sentence in these seemingly conclusive terms, the court next said, "[b]efore imposing any sentence in this matter I will call upon the defendant for those matters which he would like to bring to the Court's attention." Id. at 14 (emphasis added). Mr. Luepke gave a short response: "Nothing. I'm just sorry for everything that's been done and the outcome of this." Id. at 15. The court then turned to defense counsel and asked whether, "[b]efore then imposing the sentence as previously announced," there was anything further. Id. (emphasis added). After a brief colloquy with Mr. Luepke's counsel on points not relevant to this appeal, counsel told the court that he had nothing further. The court then stated, "[w]e're not through yet. I haven't imposed the sentence." Id. at 16 (emphasis added). Briefly noting that it had not considered certain disputed evidence offered by the Government in reaching its sentence, the court concluded, "[a]ll right .... the Court does impose that sentence as previously announced." Id. at 17.

Mr. Luepke timely filed this appeal.

II DISCUSSION

Mr. Luepke submits that the district court erred in denying him the right to a meaningful allocution. See Fed.R.Crim.P. 32(i)(4)(A)(ii). He also claims that his sentence is unreasonable.² Because we believe that the sequence of events at Mr. Luepke's sentencing hearing denied him the right to allocution and that resentencing is required on this basis, we do not reach the reasonableness of the sentence imposed.

A.

As an initial matter, the parties dispute the appropriate standard of review. The Government asserts that, because no timely objection was interposed to the district court's announcement of a sentence before inviting Mr. Luepke to speak, Mr. Luepke has forfeited this issue for appeal. In the Government's view, Federal Rule of Criminal Procedure 52(b) requires that we apply the plain error standard. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Mr. Luepke counters that, because the district court gave him no real opportunity to object, we should determine whether the district court erred and, if so, whether the error can be characterized as harmless. According to Mr. Luepke, the district court's method of proceeding up to the point when the sentence was "adjudged" did not put Mr. Luepke on notice that he was about to be sentenced without first being offered an opportunity to speak on his own behalf.

There is disagreement among the circuits about the proper standard of review for claims regarding the denial of the right to allocution when no contemporaneous objection is made at the sentencing hearing.³ Although our court has not had the occasion to address the matter directly, we believe that the majority of the circuits have determined correctly that the right of allocution set forth in Rule 32 of the Federal Rules of Criminal Procedure is subject to forfeiture and therefore to plain error review. One case in this circuit, albeit in dicta, suggested that, when a rule imposes the duty to comply with its mandate squarely on the district court, as Rule 32 does regarding the right to allocution, the right should not be considered subject to forfeiture. See United States v. Chatmon, 324 F.3d 889, 892 (7th Cir.2003) (discussing the district court's duty to make findings of fact at sentencing and analogizing to the right of allocution); cf. United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991) (noting that the defendant in that case had not waived the right to allocution in part because the obligation of the rule is imposed directly on the district court). However, we believe that the United States Court of Appeals for the Fifth Circuit, in its en banc decision in United States v. Reyna, 358 F.3d 344 (5th Cir. 2004), has answered effectively that view. In Reyna, the en banc court sat to address precisely the issue of the applicable standard of review for claims that a sentencing court had not complied with the requirements of Rule 32 and the right to allocution had been denied. That court thoroughly examined the history and purposes of Rule 32 and concluded that, although "the right of allocution is deeply rooted in our legal tradition and an important, highly respected right," it is "neither constitutional nor jurisdictional." Id. at 349. The court then noted that, although the Supreme Court has said little about the right in recent times, it has clarified substantially the scope of plain error review. Specifically, the Fifth Circuit relied upon the Supreme Court's statement in United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), that a "`constitutional right or right of any other sort' may be forfeited by the failure to make a timely objection," to suggest that all errors in a criminal proceeding are subject to Rule 52(b) analysis. Reyna, 358 F.3d at 350. Reyna went on to note that, after Olano, the Supreme Court has confirmed that the seriousness of claimed errors does not operate to remove them from Rule 52(b). See id. (discussing Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Reyna also observed that, in United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), the Supreme Court had applied plain error review to a district court's acceptance of a guilty plea without addressing the defendant personally as Rule 11 requires.

The reasoning in Reyna is not without substantial force.⁴ Moreover, we believe that our decision in United States v. Barnes, 948 F.2d 325 (7th Cir.1991), supplies clear support for the decision reached by our colleagues in the Fifth Circuit in Reyna. In Barnes, we examined the...