U.S. v. Pitre
| Decision Date | 03 October 2007 |
| Docket Number | No. 06-3935.,06-3935. |
| Citation | 504 F.3d 657 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patricia PITRE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kaarina Salovaara (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Richard H. Parsons, Johanna M. Christiansen (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before BAUER, CUDAHY and RIPPLE, Circuit Judges.
While serving a term of supervised release, Patricia Pitre tested positive for cocaine. As a result, the district court revoked her supervised release and imposed a term of 18 months' reimprisonment followed by 18 months' supervised release. Ms. Pitre timely appeals her term of reimprisonment on the grounds that the district court imposed judgment without inviting her to allocute or without considering the applicable policy statements and imprisonment range set forth in § 7B1.4 of the guidelines. For the reasons set forth in this opinion, we affirm the judgment of the district court.
After pleading guilty to mail fraud, credit card fraud and conspiracy to commit credit card fraud, Ms. Pitre was sentenced to six months' imprisonment followed by a single three-year term of supervised release. Ms. Pitre was released from prison and began serving her term of supervised release in November 2004. As relevant to this appeal, the conditions of her supervised release required her to refrain from unlawful drug use, to submit to periodic drug testing and to participate in drug aftercare.
Within two weeks of her release from prison, Ms. Pitre violated the conditions of her supervised release when she tested positive for cocaine. She then tested positive on four more occasions over the next three months. On the recommendation of her probation officer, Ms. Pitre voluntarily entered a 30-day drug rehabilitation program. Following completion of the program, Ms. Pitre remained clean for almost five months before testing positive for cocaine three more times in August 2005. As a result, the district court ordered her to serve 120 days at the Salvation Army Community Correctional Center, where she would receive inpatient drug treatment. Ms. Pitre completed that program in February 2006, but met with only short-term success; in June 2006 she once again tested positive for cocaine.
Given her history of illegal drug use and the lack of further treatment programs available through the probation office, Ms. Pitre's probation officer petitioned the district court to revoke her supervised release. The probation officer determined that Ms. Pitre had committed a Grade C violation, resulting in a guidelines imprisonment range of three to nine months. However, the probation officer recommended that Ms. Pitre be reimprisoned for 18 months to ensure that she would be able to complete the in-custody drug treatment program provided by the Bureau of Prisons. The probation officer further recommended that this term of reimprisonment be followed by 18 months' supervised release. The probation officer also noted that revocation of Ms. Pitre's supervised release was mandatory because she had tested positive for cocaine more than three times during the past year. See 18 U.S.C. § 3583(g)(4).
The hearing to revoke Ms. Pitre's supervised release proceeded in two parts. It initially convened on August 31, 2006. The Government presented evidence that Ms. Pitre had tested positive for cocaine on four occasions during the preceding year; the most recent positive result was 16 days before the hearing. The Government sought 18 months' imprisonment to ensure that Ms. Pitre could enter and complete the Bureau of Prisons' nine-month drug treatment program. The Government also requested an equal term of post-incarceration supervised release. Ms. Pitre, through counsel, objected to the proposed term of incarceration and subsequent supervised release. Counsel noted that she had been employed gainfully and had obtained an apartment while on supervised release. Counsel then suggested that the court continue the revocation hearing for 30 days to see how she did with respect to drug tests over that period.
The district court agreed to continue the hearing for 30 days, but warned Ms. Pitre that, if she missed or failed any drug tests in that time, she would be reimprisoned for 18 months. Ms. Pitre acknowledged these conditions:
When the hearing reconvened on October 3, 2006, the Government reported that Ms. Pitre had tested positive twice since the continuance. Ms. Pitre, through counsel, conceded the Government's account, but requested that the court recommend that her sentence be served as close to Chicago as possible. Counsel advanced no arguments against her reimprisonment, including the length of reimprisonment. Without affording Ms. Pitre an opportunity to address personally the court, the district court then revoked Ms. Pitre's supervised release and imposed the term of reimprisonment recommended by the Government. Neither Ms. Pitre nor her counsel objected to the lack of opportunity for Ms. Pitre to allocute.
Ms. Pitre now appeals her sentence of reimprisonment on two grounds. First, she contends that the district court must reconsider the terms of reimprisonment and supervised release because they were imposed without inviting her to allocute. Second, she submits that the district court abused its discretion when it imposed an 18-month term of reimprisonment because the court failed to consider the imprisonment range or policy statements set forth in U.S.S.G. § 7B1.4 before imposing sentence.
Ms. Pitre concedes that she forfeited her challenge based on the denial of her right to allocute. Therefore, our review is limited to plain error. United States v. Luepke, 495 F.3d 443, 2007 WL 2091227 (7th Cir.2007); United States v. Reyna, 358 F.3d 344, 348-50 (5th Cir.2004) (en banc).
Plain error review requires us to determine whether: (1) error occurred; (2) the error was plain; and (3) the error affected the defendant's substantial rights. United States v. Simpson, 479 F.3d 492, 496 (7th Cir.2007). If these criteria are met, we may reverse, in an exercise of discretion, if we determine that the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.; accord United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
A criminal defendant's right to address the court on her own behalf at sentencing long has been recognized at common law and has been incorporated into Federal Rule of Criminal Procedure 32. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Fed. R.Crim.P. 32(i)(4)(A)(ii); see also United States v. Barnes, 948 F.2d 325, 328-29 (7th Cir.1991). Although Rule 32 does not govern specifically revocations of supervised release, Federal Rule of Criminal Procedure 32.1 was amended in 2005 to state explicitly that the defendant is entitled to address the court during a hearing to revoke supervised release. See Fed. R.Crim.P. 32.1(b)(2)(E); Fed.R.Crim.P. 32.1 advisory committee's note.
Unlike Rule 32's right to allocution, which requires the court to "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence" before imposing its sentence, Fed.R.Crim.P. 32(i)(4)(A)(ii), Rule 32.1 states only that the defendant "is entitled to . . . an opportunity to make a statement and present any information in mitigation," Fed. R.Crim.P. 32.1(b)(2)(E). The Government contends that, as a result of this difference in language, Rule 32.1 imposes a lesser obligation on the district court at revocation of supervised release than that imposed by Rule 32 at initial sentencing. However, the language of amended Rule 32.1 tracks the language of an earlier version of Rule 32 that the Supreme Court interpreted as granting criminal defendants a personal right to allocution and as imposing on trial judges a duty personally to invite defendants to speak before sentencing. See Green, 365 U.S. at 303 n. 1, 81 S.Ct. 653; see also Luepke, 495 F.3d 443, 448 & n. 5 (). We therefore hold that the right to allocution created by Rule 32.1 is not substantively different than the right created by Rule 32. Rule 32.1 requires a district court to ask the defendant if she wishes to make a statement for the court to consider before imposing a term of reimprisonment following revocation of supervised release. Cf. Green, 365 U.S. at 304, 81 S.Ct. 653; Luepke, 495 F.3d 443, 2007 WL 2091227 (collecting cases).
In this case, there is little question that the district court did not address directly Ms. Pitre and give her an opportunity to allocute prior to imposing reimprisonment. At the August 2006 revocation hearing, the court asked her two closed-ended questions and issued a warning that failure to remain clean would result in 18 months' incarceration. When the hearing resumed on October 3, 2006, even though Ms. Pitre interjected, through counsel, a request that the district court recommend that her imprisonment be as close to Chicago as possible, at no time did the court ask Ms. Pitre if she wished to address the court or otherwise open the door to...
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