U.S. v. Rodriguez
| Decision Date | 14 June 1994 |
| Docket Number | No. 93-8355,93-8355 |
| Citation | 23 F.3d 919 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William K. RODRIGUEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. Carolyn Fuentes, Philip J. Lynch, Asst. Federal Public Defenders, San Antonio, TX, Lucien B. Campbell, Federal Public Defender, Austin, TX, for defendant-appellant.
Richard L. Durbin, Jr., Margaret F. Leachman, Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, GARWOOD, and EMILIO M. GARZA, Circuit Judges.
William Rodriguez appeals the district court's sentence imposed upon revocation of his supervised release. Because the district court sentenced Rodriguez in absentia and without affording him the right to allocute, we vacate and remand for resentencing.
In 1989, Rodriguez was convicted by a jury of stealing a government-owned van in violation of 18 U.S.C. Sec. 641, and was sentenced to three years of probation. Upon revocation of his probation for violating the terms of such probation, Rodriguez was subsequently sentenced to five months imprisonment and three years supervised release.
In 1993, the probation office filed in federal district court an amended petition to revoke Rodriguez's supervised release. The amended petition specifically charged Rodriguez with committing a state crime while on supervised release, failing to submit required urine samples, and failing to make required restitution payments, all in violation of the terms of his supervised release. The district court referred the matter to a magistrate judge, pursuant to 18 U.S.C.A. Sec. 3401(i) (West Supp.1994). 1
The magistrate judge conducted a revocation hearing, at which Rodriguez and his counsel were present. At the hearing, Rodriguez pled true to the charges in the amended petition to revoke supervised release. In his report to the district court, the magistrate judge recommended that Rodriguez's supervised release be revoked. In recommending an appropriate term of imprisonment, 2 the magistrate judge expressly considered the policy statements of Chapter 7 of the Guidelines. Based on the revocation table set forth in U.S.S.G. Sec. 7B1.4(a), p.s., Rodriguez's applicable sentencing range was four to ten months imprisonment. Citing Rodriguez's "willful failure to make any reasonable effort to comply with even the minimal conditions" of his probation or supervised release, the magistrate judge instead recommended that Rodriguez be sentenced to twenty-four months imprisonment.
Rodriguez filed objections to the magistrate's report and recommendations. He also requested a brief hearing before the district court "to provide additional information in person." Without holding another hearing, the district court entered an order adopting the report and recommendations of the magistrate judge. The court therefore revoked Rodriguez's supervised release and sentenced him to twenty-four months imprisonment. Neither Rodriguez nor his counsel were present when the district court imposed sentence. Rodriguez subsequently filed a timely notice of appeal.
"We will uphold a sentence unless it (1) was imposed in violation of law, (2) resulted from an incorrect application of the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992) (citing 18 U.S.C. Sec. 3742(e)). Because there are no applicable guidelines for sentencing after revocation of supervised release, see U.S.S.G. Chapter 7 Part A 1. ("At this time, the Commission has chosen to promulgate policy statements only."), we will uphold Rodriguez's sentence unless it is in violation of law or plainly unreasonable. Headrick, 963 F.2d at 779. "A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences." United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984). "Once it is found that the district court failed to comply with a procedural rule of sentencing, a new sentencing hearing should be ordered." Id.
Rodriguez contends, inter alia, that his sentence was imposed in violation of law because the district court sentenced him in absentia and without affording him the right to allocute. 3 Rule 43(a) of the Federal Rules of Criminal Procedure provides that "[t]he defendant shall be present ... at the imposition of sentence, except as otherwise provided by this rule." 4 Rule 32(a) of the Federal Rules of Criminal Procedure provides that "[b]efore imposing sentence, the court shall ... (C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." Although conceding that Rodriguez was not present when the district court imposed sentence, the government argues that Rodriguez's presence at the revocation hearing, where he was given an opportunity to be heard, satisfied the requirements of Rules 43(a) and 32(a)(1)(C). We disagree.
Although we have found no case dealing with this issue in the context of a revocation hearing conducted pursuant to 18 U.S.C.A. Sec. 3401(i) (West Supp.1994), we think it clear that the hearing before the magistrate judge did not satisfy the requirements of Rules 43(a) and 32(a)(1)(C). The magistrate judge did not possess the authority to impose sentence; only the district court possessed that authority. See 18 U.S.C.A. Sec. 3401(i) (West Supp.1994) (). Therefore, Rule 43(a) required that Rodriguez be present when the district court imposed sentence, and not when the magistrate judge recommended sentence. Similarly, Rule 32(a)(1)(C) refers to the court that imposes sentence. See Fed.R.Crim.P. 32(a)(1)(C) (). Therefore, Rule 32(a)(1)(C) required that Rodriguez be given the right to allocute when the district court imposed sentence. As we stated in United States v. Moree, 928 F.2d 654 (5th Cir.1991):
[T]he requirements of criminal justice ... leave no doubt of [the defendant's] right to be present when a final determination of sentence is made. The elementary right of a...
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18 APPENDIX U.S.C. § 32.1 Revoking Or Modifying Probation Or Supervised Release
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