U.S. v. Reyna

• Decision Date: 26 January 2004
• Docket Number: No. 01-41164.,01-41164.
• Citation: 358 F.3d 344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Enrique REYNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.3d 344

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Enrique REYNA, Defendant-Appellant.

No. 01-41164.

United States Court of Appeals, Fifth Circuit.

January 26, 2004.

Revised January 28, 2004.

Katherine L. Haden (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., H. Michael Sokolow (argued), Houston, TX, Thomas G. Lindenmuth, McAllen, TX, for Defendant-Appellant.

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

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT and PRADO, Circuit Judges.¹

W. EUGENE DAVIS, Circuit Judge:

We took this case en banc to consider whether the district court's failure to give the defendant an opportunity to allocute as required by Federal Rule of Criminal Procedure 32 is subject to either harmless error or plain error review. For the reasons that follow, we conclude that, in the absence of an objection by the defendant, such a failure is subject to plain error review.

I. FACTS AND PROCEEDINGS

The panel, in United States v. Reyna, 331 F.3d 448 (5th Cir.2003), gave a cogent statement of the facts and background which we reproduce below:

Miguel Enrique Reyna plead guilty in October 1996 to possession of a sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), 5871, and was sentenced to 46 months' imprisonment and three years of supervised release.

In February 2000, the district court revoked the term of supervised release because Reyna had been caught driving while intoxicated. The court gave Reyna the option of immediately serving 6 months in prison, or being sentenced to 12 months' imprisonment, with the execution of that sentence suspended for three years of supervised release. Reyna chose the latter option. The court coupled its generosity with a stern warning:

THE COURT: I will tell you what I will do. I will sentence you to 12 months in jail. I will suspend the execution of those 12 months, which simply means that I will allow you to surrender voluntarily. But the moment you spit on the sidewalk, I don't care whether you get a traffic ticket, you are gone for 12 months. You can do that or I will give you six months today and you will get it over with. Which one do you want?

After Reyna chose the 12-month option, the court warned him again: "I am talking about anything. You are gone. You are on your way for 12 months. It is just a matter of me setting a date for voluntary surrender."

During the term of supervised release, Reyna tested positive for drugs. In an August 2001 hearing, the court sentenced Reyna to 12 months' imprisonment and 2 years of supervised release. The court addressed Reyna during the following exchange:

THE COURT: The matter before me, then, Mr. Reyna, is simply there is evidence to the effect that you—from a specimen taken from you back in September of the year 2000 that you had ingested cocaine. Is that true?

THE DEFENDANT: Yes, sir.

THE COURT: All right.

THE DEFENDANT: Correct. Yes, Your Honor.

THE COURT: Well, you are already on your way ... You can't blame anybody, can you?

THE DEFENDANT: No.

Later in the hearing, Reyna attempted to say something, but was interrupted by the court. The following colloquy ensued:

THE COURT: If I could send you away for ten years, I would. You know why? You know why? Because you hurt other people to whom we give this opportunity. Your attorney asks for relief of this kind sometimes. And when people like you sort of break faith and when people are given the benefit of these kinds of things, what you are doing is just hurting other people. You understand that. One thing is to hurt yourself and another one is to affect other persons and you have.

All right. Good luck to you.

THE DEFENDANT: Thank you.

Reyna did not object to the denial of his right to allocution.

II. STANDARD OF REVIEW

Under this court's precedents, the district court's denial of the right of allocution is not subject to plain or harmless error review under Rule 52. Rather we have consistently held that this error requires automatic reversal. United States v. Dabeit, 231 F.3d 979, 981 (5th Cir.2000); United States v. Myers, 150 F.3d 459 (5th Cir.1998). We took this case en banc to reconsider these precedents.

III. DISCUSSION

When Reyna was sentenced, Fed. R.Crim.P. 32(c)(3)(C) required the district court to "address the defendant personally and determine whether the defendant wishe[d] to make a statement and to present any information in mitigation of the sentence" before imposing sentence.² United States v. Rodriguez, 23 F.3d 919, 921 (5th Cir.1994). Under the law of this Circuit, the right to allocution applies at sentencing following revocation of supervised release.³ Id. Although the district court addressed Reyna prior to imposing sentence, the court did not give Reyna the opportunity to speak in mitigation of his sentence. We therefore agree with the panel that the district court erred in failing to comply with Rule 32.

The government argues, however, that even if the district court erred in failing to give Reyna an opportunity to allocute, because neither Reyna nor his counsel objected, we should review this error under the prism of either harmless error or plain error as provided by Rule 52. Fed.R.Crim.P. Rule 52 provides:

(a) Harmless error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

(b) Plain error. A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.⁴

As a practical matter, Rule 52(a) applies when a defendant has made a timely objection to an error and the reviewing court engages in an inquiry to determine whether the error was harmless, that is whether the defendant suffered prejudice from the error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because Reyna did not object to the court's failure to allow allocution, Rule 52(a) has no potential application to this case. Rule 52(b), on the other hand, applies when no timely objection was made. Thus, Rule 52(b) is the subsection of this rule that has potential application to this case.

As stated above, our cases have consistently held that we must automatically reverse a district court which fails to give the defendant an opportunity for allocution as required by Rule 32. Dabeit, 231 F.3d at 981; Myers, 150 F.3d at 464-65. This position is not without Supreme Court authority and reflects the high respect accorded the right to allocute at sentencing. In Green v. United States, a plurality of the Supreme Court determined that the defendant had failed to meet his burden of showing that he was not accorded his right of allocution. However, eight justices agreed that in future cases, trial judges should "unambiguously address themselves to the defendant" and thus "leave no room for doubt that the defendant had been issued a personal invitation to speak prior to sentencing." Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). The trial court had addressed the defendant and his counsel jointly, asking "did you want to say something?" rather than speaking directly to the defendant. Id. at 302, 81 S.Ct. 653. Justice Frankfurter, speaking for the four justice plurality, explained why the right of allocution is so deserving of protection.

The design of Rule 32(a) did not begin with its promulgation: its legal provenance was the common-law right of allocution. 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. See Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B.) Taken in the context of its history, there can be little doubt that the drafters of Rule 32(a) intended that the defendant be personally afforded the opportunity to speak before imposition of sentence. We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century—the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. 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 in his own behalf," and "to present any information in mitigation of punishment." 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).

Id. at 304, 81 S.Ct. 653.

Four justices speaking in dissent through Justice Black disagreed with the Court's decision to deny relief to the defendant and stressed the importance of enforcing the rule by requiring remand. In their view,

A rule so highly prized for so sound a reason for so long a time deserves to be rigorously enforced by this Court, not merely praised in resounding glittering generalities calculated to soften the blow of nonenforcement.

Id. at 311, 81 S.Ct. 653 (Black, J., dissenting).

One year after the Green decision, the Supreme Court held in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), that violation of a defendant's right to allocution was not a predicate for habeas corpus relief absent aggravating circumstances. After stating that the simple failure of the trial court to address a...