U.S. v. Myers

• Decision Date: 06 August 1998
• Docket Number: No. 96-30316,96-30316
• Citation: 150 F.3d 459
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Merrick D. MYERS, also known as Merrick Myers, Defendant--Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 459

150 F.3d 459

UNITED STATES of America, Plaintiff--Appellee, v. Merrick D. MYERS, also known as Merrick Myers, Defendant--Appellant.

No. 96-30316.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1998.

John Francis Murphy, Stephen A. Higginson, Asst. U.S. Attys., New Orleans, LA, for Plaintiff-Appellee.

Christopher Albert Aberle, Mandeville, LA, for Defendant-Appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and DAVIS and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In this case we address whether a district court's failure to comply with FED.R.CRIM.P. 32(c)(3)(C), which requires the court during sentencing to address the defendant personally and to determine whether the defendant has any statement to make or information to present in mitigation of his sentence, is amenable to a harmless error analysis. We find that it is not, and we therefore reverse and remand for resentencing.

BACKGROUND

Merrick Myers ("Myers") pled guilty to conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Myers's Presentence Report indicated that he cooked powder cocaine into crack for his brother and arranged and conducted drug transactions at a New Orleans apartment in March and April, 1995. When FBI agents searched that apartment on May 1, 1995, they found a loaded semi-automatic rifle under Myers's bed.

In connection with his guilty plea, Myers "expressly waiv[ed] the right to appeal his sentence on any ground," subject to narrowly specified exceptions. At the plea hearing on August 10, 1995, the district court asked Myers whether he had entered into any plea agreement with the government. Myers stated that he had not; then he stated that he had. Myers then reviewed the plea agreement and confirmed that it represented his bargain with the government. Notwithstanding the appeal waiver contained in the plea agreement, however, at the sentencing hearing on March 20, 1996, the district judge asked Myers: "[D]o you understand you have the right to appeal the sentence I'm about to impose?" (Emphasis added). Myers responded that he did. ¹

Based on the amount of crack involved (17 grams), Myers's base offense level was 26. U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G."), § 2D1.1(c)(1995). Myers received a two-level increase because he had possessed a firearm during the drug-trafficking conspiracy (see U.S.S.G. § 2D1.1(b)(1)), but also received a three-level decrease for acceptance of responsibility (see U.S.S.G. § 3E1.1(a) and (b)), making his total offense level 25. Myers had no criminal history points, placing him in criminal history category I and establishing a sentencing range of 57 to 71 months. See U.S.S.G. Chapter 5, Pt. A (Sentencing Table). Myers's offense, however, carried a statutory minimum sentence of 5 years. 21 U.S.C. §§ 846 and 841(a)(1).

Prior to sentencing, the government moved for a downward departure in Myers's sentence, pursuant to U.S.S.G. § 5K1.1. The court denied the motion with the following strong language:

... I am not granting the [5K] motions, because I think the recommendations by the U.S. Attorney's Office to put dangerous * * * * * *

drug dealers back into our community after serving reduced sentences are a disgrace to the judicial system. I think it's a serious problem in this case. This is a very serious group of drug dealers.

Because your participation in this drug dealing has ruined your community and it is ruining our city and it must stop, and the only way to stop it is to put the drug dealers in jail. That's what we're doing. All right? And you can help us do that, and you've helped to some extent, and if you continue to help, then maybe the community will be saved.

But, at this point I'm not honoring the 5K reductions, which were grossly disproportionate and I think a disgrace.

The court went on to overrule Myers's objections to the two-level enhancement for possession of a firearm and to deny his request for a two-level decrease for being a "minor player" in the conspiracy. See U.S.S.G. § 3B1.2. Finally, the court ruled that Myers could not benefit from the "safety valve" provision of U.S.S.G. § 5C1.2, because Myers had "possess[ed] a firearm ... in connection with the offense." See U.S.S.G. § 5C1.2(2). The court then sentenced Myers to the statutory minimum of 5 years.

DISCUSSION

I.

Rule 32(c)(3)(C) of the Federal Rules of Criminal Procedure states that the court must, before imposing sentence,

address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence.

FED.R.CRIM.P. 32(c)(3)(C)(West 1998). Myers contends he was denied this statutory right to speak "in mitigation of the sentence," and, furthermore, that such an error is not harmless and necessitates remand. Myers posits that, had he been allowed to speak on his own behalf, he "may have been able to persuade the court" either to grant the government's § 5K1.1 motion or to change its mind regarding the firearm enhancement.

A.

Initially, we must decide whether Myers was, in fact, denied the so-called "right of allocution" secured him by Rule 32. We review de novo whether a district court complied with a Federal Rule of Criminal Procedure. U.S. v. Scott, 987 F.2d 261, 264 (5th Cir.1993). The government contends that Myers was indeed afforded his allocution rights because (1) the court invited Myers to explain why the firearm enhancement should not apply, and (2) through defense counsel, Myers was able to argue that he had cooperated with the government and that he was a minor participant in the conspiracy. Further, the government contends that a remand is, in any case, not warranted since Myers received the lowest sentence possible. We reject the government's arguments as meritless.

First, we observe that thirty-seven years ago the Supreme Court, in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), rejected the argument that a defendant's right of allocution may be satisfied through his counsel. In Green the Court stated:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: "to make a statement on his own behalf," and "to present any information in mitigation of his sentence." We therefore reject the Government's contention that merely affording defendant's counsel the opportunity to speak fulfills the dual role of Rule 32(a). ²

Green, 365 U.S. at 304, 81 S.Ct. 653. As the Supreme Court recognized, Rule 32 envisions a personal colloquy between the sentencing judge and the defendant. See U.S. v. Anderson, 987 F.2d 251, 261 (5th Cir.1993); Second, the court's two questions to Myers regarding the firearm enhancement were patently inadequate to meet the plain requirements of Rule 32. By its own terms, Rule 32 mandates that a defendant be given the opportunity "to make a statement and [ ] present any information in mitigation of sentence." FED.R.CRIM.P. 32(c)(3)(C)(emphasis added). The court questioned Myers merely to confirm that there was a factual basis for the firearm enhancement. Those enquiries were not even an arguable attempt to give Myers the broad-ranging opportunity to speak embodied in Rule 32. See, e.g., U.S. v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982); see also, U.S. v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir.1994). ³

U.S. v. Dominguez-Hernandez, 934 F.2d 598, 599 (5th Cir.1991). The arguments of Myers's counsel therefore did not satisfy Rule 32.

We also reject the government's assertion that, because Myers received the lowest sentence possible, a remand for resentencing would be a useless act. We pretermit discussion of that issue, however, until the next section. See discussion infra Part I.B.

In sum, in order to satisfy the command of Rule 32(c)(3)(C),

the court, the prosecutor, and the defendant must at the very least interact in a manner that shows clearly and convincingly that the defendant knew he had a right to speak on any subject of his choosing prior to the imposition of sentence.

De Alba Pagan, 33 F.3d at 129, citing Green, 365 U.S. at 304-05, 81 S.Ct. 653. Buttressed by our own independent review of the record, we reject the government's claim that Myers was afforded his Rule 32 right of allocution.

B.

We now must turn to a question left undecided ⁴ by the Supreme Court in Green: whether denial of a defendant's Rule 32 right of allocution requires an automatic reversal and remand for resentencing, or whether such an error can be deemed "harmless" if the record shows that, regardless what the defendant might have said in his own behalf, the court would not have imposed a lower sentence. The government implicitly ⁵ contends that a harmless error analysis should apply when it urges that "remand is not warranted because there is no possibility that a lower sentence would have been imposed The government misconstrues Dominguez-Hernandez, a case which, we must observe, entirely refutes the government's position. In Dominguez-Hernandez, we reaffirmed the settled principle that "[i]f the district court fails to provide the [Rule 32] right of allocution, resentencing is required." Dominguez-Hernandez, 934 F.2d at 599, citing U.S. v. Posner, 868 F.2d 720, 724 (5th Cir.1989)(emphasis added). We remanded for resentencing even though the defendant (1) had not raised the error to the district court, and (2) did not even assert that, on resentencing, he wished to exercise his right of allocution. Dominguez-Hernandez, 934 F.2d at 599. It was in view of the latter point in particular that we observed remand could "well be a useless bow to procedural nicety." Id. Nonetheless, we found that failure to afford the defendant his allocution rights necessitated remand; our precedents dictated,...