U.S. v. Muhammad

• Decision Date: 06 March 2007
• Docket Number: No. 06-4516.,06-4516.
• Citation: 478 F.3d 247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abdul Hafeez MUHAMMAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 247

UNITED STATES of America, Plaintiff-Appellee, v. Abdul Hafeez MUHAMMAD, Defendant-Appellant.

No. 06-4516.

United States Court of Appeals, Fourth Circuit.

Argued February 1, 2007.

Decided March 6, 2007.

ARGUED: Debra Carroll Graves, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Devon L. Donahue, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Christine Witcover Dean, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and NIEMEYER and KING, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

OPINION

WILKINS, Chief Judge.

Abdul Hafeez Muhammad, convicted of wire fraud and money laundering offenses appeals a 121-month prison sentence imposed by the district court following an earlier remand for resentencing. We conclude that the district court plainly erred by denying Muhammad the opportunity to allocute at his resentencing hearing, and we exercise our discretion to notice this error. We therefore vacate Muhammad's sentence and remand for resentencing.

I.

Muhammad was indicted on seven counts of wire fraud and one count of money laundering in connection with an alleged fraudulent investment scheme. After a trial, a jury convicted him on all counts.

At the original sentencing hearing, the district court determined that Muhammad's guideline range for the money laundering count was 97 to 121 months imprisonment. (Muhammad's guideline range for the wire fraud counts was 60 months, the former statutory maximum.) Muhammad moved for a downward departure on the basis of diminished capacity, but the district court denied that motion. Defense counsel then requested a sentence at the bottom of the guideline range on the grounds that Muhammad was 57 years old and would be deported after serving his sentence. Further, Muhammad personally addressed the court, denying any intent to defraud his victims and noting that he would be deported after 30 years of marriage. The Government, by contrast, described Muhammad as a "financial predator," J.A. 66, and sought a sentence at the top of the guideline range. On the money laundering count, the district court sentenced Muhammad to 121 months, the top of the guideline range. The court found that a sentence at the top of the range was appropriate "because of the substantial nature of the fraud, [and] the defendant's prior record of similar misconduct." Id. at 69; see id. at 80. The court also sentenced Muhammad to concurrent terms of 60 months on each of the wire fraud counts.

Muhammad appealed his conviction and sentence. While his appeal was pending, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirmed Muhammad's convictions but vacated his sentence on Booker grounds and remanded for resentencing consistent with United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). See United States v. Muhammad, 170 Fed.Appx. 285 (4th Cir.2006).

On remand, the district court again calculated a guideline range for the money laundering count of 97 to 121 months and denied Muhammad's renewed motion for a downward departure. Defense counsel argued that various factors relating to 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) — including Muhammad's age, his continuing but improving mental condition, his strong support from family members and responsibilities to them, and his likely deportation — warranted a downward variance from the guideline range. Nevertheless, the district court again imposed a 121-month sentence¹ (and concurrent 60-month terms), citing "the intensive nature of the fraud and the prior record of similar misconduct." J.A. 111. At no time during the resentencing hearing, however, did the district court give Muhammad an opportunity to allocute.

II.

Muhammad argues that his sentence should be vacated because the district court did not permit him to allocute before he was resentenced. Muhammad concedes that he did not object to the denial of allocution in the district court. We therefore review his claim for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Cole, 27 F.3d 996, 998 (4th Cir. 1994). To establish plain error, Muhammad must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Muhammad makes this three-part showing, correction of the error remains within our discretion, which we "should not exercise . . . unless the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original).

"Before imposing sentence, the [district] court must . . . address the defendant personally in order to permit [him] to speak or present any information to mitigate the sentence." Fed.R.Crim.P. 32(i)(4)(A)(ii). This rule "is not satisfied by merely affording the Defendant's counsel the opportunity to speak." Cole, 27 F.3d at 998 (internal quotation marks & alteration omitted). As the Supreme Court has noted, "[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, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion).

In Cole, we addressed a denial of allocution claim similar to Muhammad's. Cole was convicted of a drug offense and was sentenced at the bottom of the guideline range as determined by the district court. See Cole, 27 F.3d at 997-98. The district court did not, however, allow Cole to allocute before sentencing, and it rejected Cole's attempt to address the court after his sentence was imposed. See id. at 998. On plain error review, we did "not hesitate in ruling that this right [of allocution] was not adequately afforded to Cole and that the district court committed error that is plain." Id.

We then addressed the substantial rights element of plain error review. We noted that our decision in United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir.1993), in which we held that a defendant was not prejudiced by the denial of allocution when there was no possibility that he could have received a shorter sentence, "foreclosed any argument that a denial of allocution per se affects `substantial rights.'" Cole, 27 F.3d at 999. Rather, we explained that "we should examine each case to determine whether the error was prejudicial." Id. We found that Cole had shown prejudice because we could "identify at least two grounds upon which the court might have imposed a reduced sentence." Id. In particular, had Cole been permitted to address the court, he "may have been able to persuade the court" to reduce his offense level by showing either that a lower drug quantity should be attributed to him or that he had accepted responsibility for his offense. Id. We concluded that "[a]s 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." Id.

Further, we exercised our discretion to notice the allocution error raised by Cole:

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.

Id. We therefore vacated Cole's sentence and remanded for resentencing. See id.

Here, Muhammad contends that Cole entitles him to resentencing because he was denied the chance to allocute on remand and might have received a lesser sentence had he been allowed to do so. Muhammad notes that although he was permitted to allocute at his original sentencing hearing, the district court had more discretion in its sentencing decision on remand because it was operating under the new advisory guidelines regime set forth in Booker. The Government concedes that the denial of allocution was a plain and prejudicial error, but argues that we should not notice the error because there is no possibility that Muhammad would have received a lesser sentence had he been permitted to allocute. The Government notes that in imposing the original sentence — after Muhammad addressed the district court — the court sentenced Muhammad at the top of the guideline range, thus declining to exercise in his favor the limited discretion it had within that range. We conclude that Muhammad has met the requirements of plain error review and that, despite the Government's arguments to the contrary, we should exercise our discretion to notice the error.

In Muhammad's prior appeal, we vacated his original sentence and remanded for resentencing under the procedure outlined in Hughes. See Muhammad, 170 Fed. Appx. at 285; Hughes, 401 F.3d at 546. As a result, the prior sentencing proceedings were nullified, and the district court was to conduct a new sentencing determination on remand. See United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991) (explaining that prior appellate order vacating defendant's...