U.S. v. Steinert

• Decision Date: 17 January 2007
• Docket Number: No. 1:06CR275.,1:06CR275.
• Citation: 470 F.Supp.2d 627
• Parties: UNITED STATES of America, v. Martin STEINERT, Defendant/Appellant.
• Court: U.S. District Court — Eastern District of Virginia

470 F.Supp.2d 627

UNITED STATES of America, v. Martin STEINERT, Defendant/Appellant.

No. 1:06CR275.

United States District Court, E.D. Virginia, Alexandria Division.

January 17, 2007.

Rosie Haney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Geremy C. Kamens, Office of Federal Public Defender, Alexandria, VA, for Defendant/Appellant.

MEMORANDUM OPINION

ELLIS, District Judge.

This is an appeal from a magistrate judge's decision revoking defendant-appellant Martin Steinert's probation and sentencing him to serve five months and twenty days incarceration. The following two questions are presented:

(1) Whether plain error occurred warranting resentencing when the magistrate judge, without objection from defense counsel, failed to afford Steinert an opportunity to allocute prior to sentencing for the probation violation?

(2) Whether it was plain error for the magistrate judge, in lieu of a colloquy with Steinert, to accept defense counsel's representation that Steinert admitted the probation violations and thus waived his right to a hearing on the violations?

At the conclusion of oral argument on these questions, an Order issued granting the appeal and remanding for resentencing as to the allocution issue, while denying the appeal as to the waiver issue. United States v. Steinert, No. 1:06cr275 (E.D.Va. Nov. 14, 2006) (order granting in part and denying in part the appeal). This memorandum opinion records the reasons for those ralings.¹

I.

In October 2002, Steinert pled guilty to driving with a suspended license on the George Washington Parkway, in violation of Va.Code § 46.2-201(b) and 36 C.F.R. § 4.2 (assimilating state traffic laws in national parks). Steinert was then sentenced to three days incarceration and twelve months of probation. His probation conditions included, inter alia, a prohibition on committing a federal, state, or local crime, a prohibition on drug use and excessive alcohol use, an obligation to report any arrest or questioning by law enforcement to the probation officer within 72 hours, and a requirement that Steinert successfully complete an alcohol education program at the direction of the probation officer.

Less than a year later, Steinert violated numerous conditions of his probation.. Specifically, in April and May 2003, (i) he was charged and convicted of driving without a license in Falls Church, Virginia, (ii) he failed to notify the probation officer of this conviction, (iii) he submitted a urine sample that tested positive for cocaine, (iv) he admitted to his probation officer that he drank heavily and used cocaine, and (v) he failed to report for drug detoxification, in contravention of his probation officer's direction. A petition on supervised release was filed May 2, 2003, a summons issued, and Steinert appeared on May 20, 2003 in response to the summons. At that time, he indicated he wished to retain counsel. To allow him an opportunity to do so, the magistrate judge continued the proceedings to June 3, 2003. Steinert then failed to appear on that date, and the magistrate judge therefore issued an arrest warrant.

Steinert did not again appear in the magistrate judge's court until May 23, 2006, three years later. In the interim between Steinert's 2003 and 2006 appearances before the magistrate judge, the probation officer filed a May 2005 addendum to the 2003 petition noting further violations, specifically (i) a conviction in Fairfax County court for driving as a habitual offender on February 1, 2005, (ii) a second conviction for this offense in Arlington County on March 28, 2005, (iii) a conviction for running a stop sign, and (iv) a third conviction for driving as a habitual offender, this one a felony, in Fairfax County on April 4, 2005. The probation officer filed a further addendum to the petition in November 2005 stating that the defendant had been charged with failing to appear for a hearing on the April 2005 driving offense.

During the interim between June 3, 2003, when Steinert failed to appear before the magistrate judge, and May 30, 2006, when he next appeared, the record reflects that he was in state custody, and he ultimately appeared before the magistrate judge pursuant to a writ of habeas corpus ad prosequendum. At the May 30, 2006 hearing, Steinert, by counsel, appeared before the magistrate judge, admitted the violations, and waived a revocation hearing.² The magistrate judge did not offer Steinert an opportunity to allocute, nor did she specifically engage in a colloquy with Steinert to ensure his admission and waiver were knowing and voluntary. Defense counsel raised no objection to this, nor did he suggest that the magistrate judge inquire of Steinert to ascertain directly whether Steinert admitted the violations and wished to waive a hearing. The magistrate judge ordered Steinert detained, and continued the hearing to June 6 to give the parties further time to determine whether Steinert was eligible for a particular drug rehabilitation program. On that date, the magistrate judge proceeded to sentencing, again without affording Steinert an opportunity to allocute, and again without objection from counsel. In the end, Steinert received a sentence of six months, with credit for ten days already served, the maximum allowable sentence.³ See United States v. Steinert, No. 1:02mj01003 (E.D.Va. June 7, 2006) (Order terminating probation and sentencing defendant).

Steinert appeals the magistrate judge's finding of probation violations and the sentence imposed.

II.

On appeal to the district court, two errors are asserted: (i) failure to afford Steinert an opportunity to allocute, and (ii) that Steinert's admission of the violations and waiver of a revocation hearing were not knowingly and voluntarily made. Jurisdiction over the appeal derives from 18 U.S.C. §§ 3742(a) and (h); original jurisdiction below was proper under 18 U.S.C. §§ 3401(d) and 3565. A decision of a magistrate judge is reviewed on appeal to the district court using the same standard of review as an appeal from a district court judgment to a court of appeals. See Rule 58(g)(2)(D), Fed.R.Crim.P., United States v. Bursey, 416 F.3d 301, 305 (4th Cir.2005); Florists' Mutual Ins. Co. v. Tatterson, 802 F.Supp. 1426, 1431 (E.D.Va.1992).

A decision to revoke supervised release and impose incarceration is typically reviewed for abuse of discretion. See Burns v. United States, 287 U.S. 216, 222-23, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Davis, 53 F.3d 638, 642-43 (4th Cir.1995). Yet where, as here, claimed error is not raised below, appellate review is for plain error. See United States v. Cole, 27 F.3d 996, 998 (4th Cir. 1994). To prevail under the plain error standard, an appellant must show that (i). error occurred, (ii) that it was plain, and (iii) that it affected his substantial rights. See Rule 52(b), Fed. R.Crim. P., United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Moreover over, a district court may notice and correct the error only when permitting it to go uncorrected would result in a miscarriage of justice — i.e. when the defendant is actually innocent — or when it would seriously, affect the fairness, integrity, or public reputation of judicial proceedings. See Olano, 507 U.S. at 736-37, 113 S.Ct. 1770. Given that defense counsel raised no objection to either error now asserted, this Olano plain error standard is appropriately applied to both errors.

III.

With respect to the denial of an opportunity to allocute, the first two prongs of the plain error analysis are plainly satisfied. The failure to allow Steinert to allocute violated Rule 32.1(b)(2)(E), Fed.R.Crim.P., which requires that defendants be given "an opportunity to make a statement and present any information in mitigation." Nor is there any doubt that this requirement applies in the probation violation and supervised release context, as Rule 32.1 addresses precisely this situation. And while the government is correct that the right to allocute may be waived, there is no indication of such a waiver in this case. Steinert was not invited to allocute, nor did the magistrate judge inform him that he had a right to do so. Nor should waiver of the allocution right be inferred from Steinert's silence in these circumstances, notwithstanding the government's argument that Steinert was apprised of his right to allocute from prior proceedings. A court must "communicate unequivocally that the defendant has the right to allocute," making a "personal inquiry directed at the defendant." United States v. Magwood, 445 F.3d 826, 829 (5th Cir.2006) (internal citations omitted). At a minimum, the court, the prosecutor, and the defendant must "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." Id. (internal citations omitted). No such inference is possible on this record. Given the existence of plain error on this issue, it remains to determine whether the error affected Steinert's substantial rights, that is, whether the error was prejudicial. See Olano, 507 U.S. at 732, 113 S.Ct. 1770.

Denial of allocution is not prejudicial per se. United States v. Cole, 27 F.3d 996, 999 (4th Cir.1994). Instead, an appellate court must "examine in each case to determine whether the error was prejudicial." Id. In this respect, the appellant bears the burden of establishing prejudice. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Here, prejudice is apparent. Where a defendant does not receive the minimum sentence possible under the circumstances after being denied allocution, prejudice is shown if a reviewing court can identify any grounds on which a lesser sentence might have been imposed. See Cole, 27 F.3d at 999.⁴ Such grounds are readily identified here. Steinert's counsel argued that Steinert's violations were the result of a period of drug use and...