U.S. v. Prouty

• Decision Date: 27 August 2002
• Docket Number: No. 01-15273.,01-15273.
• Citation: 303 F.3d 1249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David PROUTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

303 F.3d 1249

UNITED STATES of America, Plaintiff-Appellee, v. David PROUTY, Defendant-Appellant.

No. 01-15273.

United States Court of Appeals, Eleventh Circuit.

August 27, 2002.

Michael T. Caruso, Asst. Federal Public Defender, Kathleen M. Williams, Federal Public Defender, Miami, FL, for Defendant-Appellant.

Lisa A. Hirsch, Anne R. Schultz, Lauren Fleischer, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and HODGES^*, District Judge.

BARKETT, Circuit Judge:

David Prouty appeals the sentence imposed for his conviction of conspiracy to use unauthorized access devices and to posses more than fifteen such access devices in violation of 18 U.S.C. § 1029(b)(2), and for unauthorized use of an access device in violation of 18 U.S.C. § 1029(a)(2). He argues, first, that the district court's failure to afford him the right to allocute constitutes plain error where the court sentenced him to the high end of the applicable guideline range. Second, he argues that the district court erred by failing to consider his ability to pay restitution and by delegating the setting of the payment schedule for restitution. We reverse.

BACKGROUND

Prouty pleaded guilty to two criminal offenses arising out of his unauthorized use of his employer's credit card terminals to obtain restaurant customers' credit card numbers. Prior to sentencing, a presentence investigation report was prepared, to which both Prouty and the government filed objections. Prouty also moved for a downward departure pursuant to USSG § 5K2.0. At the sentencing hearing, the district court ruled on the objections and denied Prouty's request for a downward departure. After the court ruled on the objections, Prouty's adjusted offense level under the sentencing guidelines was 21, which, for the applicable criminal history category 1, has a sentencing range of 37-46 months. The court sentenced Prouty to 46 months' imprisonment. Both parties in this case agree that the court did not comply with Fed.R.Crim.P. Rule 32(c)(3)(C), which requires the court to afford the defendant an opportunity to allocute before sentence is imposed.¹ The parties also agree that Prouty did not timely object to the court's failure to comply with the rule.

In sentencing Prouty, the district court did not impose a fine, because it found that Prouty did not have the financial ability to pay a fine, but also observed that there would be "substantial restitution." The court then ordered Prouty to pay restitution in the amount of $5,386,995.37, "due and payable immediately." Prouty objected on the ground that he did not have the means to pay the restitution immediately, and asked the court to set a reasonable payment schedule. The court denied the request, stating: "I will leave that to the discretion of the Probation Office or whoever does that."

STANDARD OF REVIEW

We review the legality of a criminal sentence de novo. United States v. Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1994). However, a district court's failure to afford a defendant the right of allocution will be reviewed only for plain error where the defendant did not timely object. Id. at 1521. A restitution order will be reviewed de novo. United States v. Lombardo, 35 F.3d 526, 527 (1994).

DISCUSSION

1. Allocution

Allocution is the right of the defendant to make a final plea on his own behalf to the sentencer before the imposition of sentence. It is a right of ancient origin, see United States v. Behrens, 375 U.S. 162, 165, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), and "as early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (Frankfurter, J., plurality opinion). As Justice Frankfurter explained the importance of the right: "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Id. Allocution is thus designed "to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstances." United States v. Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir.1991)). Moreover, "allocution `has value in terms of maximizing the perceived equity of the process.'" Id. (quoting Barnes, 948 F.2d at 328).

The right of allocution is protected in the Federal Rules of Criminal Procedure. Rule 32(c)(3)(C) provides that the court, prior to imposing sentence, must "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir.1998).

We easily conclude that error occurred in this case and that it was plain. Because Rule 32(c)(3)(C) specifically requires the district court to offer the defendant the opportunity to allocute, the court's failure to do so was a "clear" or "obvious" error. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; Mitchell, 146 F.3d at 1342. Where the first two prongs of the plain error rule are satisfied, the defendant bears the burden of demonstrating that the plain error "affected substantial rights." Olano, 507 U.S. at 734, 113 S.Ct. 1770 (quoting Rule 52(a), Fed.R.Crim.P.); Mitchell, 146 F.3d at 1343. In most cases, this means that the "error must have been prejudicial: It must have affected the outcome of the district court proceedings." Olano, 507 U.S. at 743, 113 S.Ct. 1770. Where all of these elements are demonstrated, we have discretion to order correction of the error and will do so "in those circumstances in which a miscarriage of justice would otherwise result." See id. at 736, 113 S.Ct. 1770; Mitchell, 146 F.3d at 1343.

Prouty's argument that the denial of the right of allocution is reversible error where the defendant was not afforded the opportunity to allocute and the court did not impose the lowest sentence under the guidelines finds support in the decisions of all circuits to have addressed the question. See United States v. Adams, 252 F.3d 276, 287 (3d Cir.2001); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996); United States v. Cole, 27 F.3d 996, 999 (4th Cir.1994); United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir.1993); see also United States v. Myers, 150 F.3d 459, 463-65 (5th Cir.1998) (resentencing always required where defendant's right to allocution is violated); United States v. Walker, 896 F.2d 295, 301 (8th Cir.1990) (same). These courts have reasoned that, because of the nature of the right and its purpose, prejudice must be found if a defendant has not been given the opportunity to speak to the court when the possibility of a lower sentence existed. Adams, 252 F.3d at 287.

The government suggests that, regardless of the practice in other circuits, Prouty's argument is foreclosed by our own circuit precedent, citing to United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000), and to United States v. Ramsdale, 179 F.3d 1320, 1324 (11th Cir.1999). We find the government's reliance misplaced. In Ramsdale, we found no manifest injustice in the lack of allocution during the resentencing proceeding because the defendant had been given an opportunity to allocute at his original sentencing hearing, and the remand for resentencing was limited to specific issues. 179 F.3d at 1324. Nothing in Ramsdale governs the outcome of a denial of the right to allocution at an original sentencing hearing. In Gerrow, we noted that the sentencing court had already announced its intention to sentence the defendant at the bottom of the applicable guideline range, and observed that the defendant did not offer anything that "could have resulted in a sentence lower than the lowest end of the guideline range." 232 F.3d at 834 (emphasis added). Gerrow therefore did not indicate what should happen when the defendant receives a sentence that is not at the lowest end of the guideline range.

Similarly, in United States v. Rodriguez-Velasquez, 132 F.3d 698 (11th Cir. 1998), we concluded that there was no "manifest injustice" because the defendant had not objected when he "was given the lowest possible sentence within the Guidelines." 132 F.3d at 700 (emphasis added). See also United States v. Quintana, 300 F.3d 1227 (11th Cir.2002), (likewise finding no manifest injustice because district court imposed the "lowest term of imprisonment permissible under the guidelines"). Our cases do not address the question of manifest injustice when the defendant did not receive the lowest sentence available within the applicable guideline range, the issue which is squarely presented here and which we now consider.

As the First Circuit has observed, a defendant cannot easily demonstrate prejudice in the context of allocution because "the impact of the omission on a [judge's] discretionary [sentencing] decision is usually enormously difficult to ascertain." Alba Pagan, 33 F.3d at 130. As the Court explained in Green, the right of allocution is premised on the idea that "[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, 365 U.S. at 304, 81 S.Ct. 653. The Adams court elaborated on this point: "Thus, denying [the defendant] his right of allocution was tantamount to denying him his most persuasive and eloquent advocate. And the district court was likewise denied the opportunity to take into consideration [the defendant's] unique perspective on the circumstances relevant...