United States v. Daniels, 13–50331.

• Decision Date: 23 July 2014
• Docket Number: No. 13–50331.,13–50331.
• Citation: 760 F.3d 920
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John Fitzgerald DANIELS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

760 F.3d 920

UNITED STATES of America, Plaintiff–Appellee,

v.John Fitzgerald DANIELS, Defendant–Appellant.

No. 13–50331.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 6, 2014.

Filed July 23, 2014.

K. Elizabeth Dahlstrom (argued), Deputy Federal Public Defender, Santa Ana, CA; Sean K. Kennedy, Federal Public Defender; Brianna Fuller Mircheff, Deputy Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

Mónica M. Ramírez (argued), Assistant United States Attorney; André Birotte, Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:90–cr–00652–SVW–5.

Before: RONALD M. GOULD and N.R. SMITH, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.^*

OPINION

GOULD, Circuit Judge:

Defendant–Appellant John Fitzgerald Daniels (“Daniels”) appeals a 40–month sentence imposed by the district court after revocation of his supervised release. Daniels contends that the district court violated Federal Rule of Criminal Procedure 32.1(b)(2)(E) when it did not affirmatively offer him an opportunity to allocute before imposing its sentence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we vacate and remand for resentencing.

I

In February 1991, Daniels was sentenced to 20 years in federal prison, to be followed by 10 years of supervised release, after pleading guilty to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841. He served more than 17 years of his sentence before being released in June 2008, when his term of supervised release began.¹

In October 2012, Los Angeles police officers pulled over a vehicle driven by Daniels. During a search, the officers found marijuana, drug trafficking paraphernalia such as plastic bags and digital scales, and other indicia of drug trafficking including cell phones and cash. Daniels admitted to the arresting officers that he was driving on a suspended license and that he sold small quantities of marijuana “to make extra cash from time to time.” Daniels faced charges for (1) being a convicted felon in possession of a firearm, seeCal.Penal Code § 29900(a)(1); (2) transporting marijuana, seeCal. Health & Safety Code § 11360(a); (3) possessing marijuana for sale, see id. § 11359; and (4) driving a motor vehicle when his driving privilege was suspended or revoked, seeCal. Veh.Code § 14601.1(a).²

On February 4, 2013, the United States Probation Office filed a petition in the district court to revoke Daniels' supervised release based on allegations (1) through (4) above, as well as his failure to complete a court-ordered residential recovery program (“allegation (5)”). Daniels admitted allegations (1), (2), and (5), but denied allegations (3) and (4). At a July 15, 2013, evidentiary hearing, the district court found that the Government had established allegations (3) and (4) by clear and convincing evidence, and sentenced Daniels to 40 months imprisonment and 20 months of supervised release “under the same terms and conditions previously imposed.” To justify its sentence, the district court reasoned that it had considered factors other than the Sentencing Guidelines, including “the defendant's history, the need for deterrence and, of course, respect for the law and the fact that these crimes were committed while he was on supervised release, and there was a series of crimes, and in order to justly punish and uphold the respect for law.” Daniels did not ask to speak before sentencing, and the district court did not affirmatively tell him that he could speak. This appeal followed.

II

Daniels and the Government disagree about the appropriate standard of review on Daniels' claim that the district court violated Rule 32.1. We generally review de novo a district court's compliance with the Federal Rules of Criminal Procedure. See United States v. Pineda–Doval, 614 F.3d 1019, 1040 (9th Cir.2010). There is no dispute, however, that Daniels did not contemporaneously object to the district court's failure affirmatively to offer him a chance to allocute before sentencing.

Where a defendant raises a particular objection to his sentence for the first time on appeal, our review is usually for plain error. See United States v. Gonzalez–Aparicio, 663 F.3d 419, 426 (9th Cir.2011) (applying “the well-established plain error standard of review with respect to alleged sentencing errors not raised below”); United States v. Waknine, 543 F.3d 546, 551 (9th Cir.2008) (reviewing for plain error a defendant's sentencing objections raised for the first time on appeal). And yet, Daniels contends that our precedent commands a harmless error analysis in denial-of-allocution cases—even in revocation sentencing proceedings, and even where the objection was not raised below. See United States v. Carper, 24 F.3d 1157, 1162 (9th Cir.1994) (“We review the district court's failure to afford appellant his right of allocution for harmless error.”); see also United States v. Gunning, 401 F.3d 1145, 1147 (9th Cir.2005) (same). The Government acknowledges that we have in the past reviewed such cases for harmless error, but contends that intervening Supreme Court decisions clarifying the broad scope of plain error review require us now to apply that standard. See United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010); Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Because we conclude that Daniels would prevail under either standard, we need not resolve that question here. See United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (clarifying that a plain error is, by definition, not harmless, and that there can be no “harmless plain errors”). For purposes of this appeal, then, we assume without deciding that plain error review applies.

A plain error is one “that affects substantial rights.” Fed.R.Crim.P. 52(b). To establish that the district court's Rule 32.1 error was plain, Daniels must “show that the district court made (1) an error (2) that was clear or obvious, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Castillo–Marin, 684 F.3d 914, 918 (9th Cir.2012). Any error affected Daniels' substantial rights only if it was “prejudicial” and “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

III

The Federal Rules of Criminal Procedure require a court, before imposing its sentence, to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii). In United States v. Carper, we held that this requirement applies with equal force “to sentencing after revocation of supervised release when the district court imposes a new sentence based on conduct that occurred during supervised release.” 24 F.3d at 1162. ³ But Carper was decided in 1994, when Rule 32.1 by its terms gave supervised releasees facing revocation no more than “an opportunity to appear and to present evidence in [their] behalf.” Fed.R.Crim.P. 32.1(a)(2)(C) (1994). In 2005, Rule 32.1 was amended to give supervised releasees “an opportunity to make a statement and present any information in mitigation” at their revocation proceedings. Id. R. 32.1(b)(2)(E) (2006). That language is in force today. See id. R. 32.1(b)(2)(E). The advisory committee note accompanying the 2005 amendment clarifies that “[t]he amended rule recognizes the importance of allocution,” and states that “the court is required to give the defendant the opportunity to make a statement and present any mitigating information.” Id. R. 32.1 advisory committee's note (2005 amend.). And in 2007, we said that “sentencing procedures for probation and supervised release violations are primarily governed by Rule 32.1 of the Federal Rules of Criminal Procedure, not Rule 32.” United States v. Leonard, 483 F.3d 635, 638–39 (9th Cir.2007).

Daniels contends that the district court violated Rule 32.1(b)(2)(E) when it did not affirmatively offer him an opportunity to allocute before imposing its sentence. The Government, on the other hand, acknowledges that the district court did not personally ask Daniels whether he wanted to speak before sentencing him, but argues that Rule 32.1(b)(2)(E) does not mandate “a personal invitation to speak before the imposition of a sentence.” Rather, the Government suggests, the Rule's allocution provision is passive; it “requires only an opportunity to make a statement and present any information in mitigation during the revocation hearing.” ⁴ The Government's position is, in essence, that a court should honor a supervised releasee's request to allocute, but need not tell him of his right to do so before imposing its sentence.

The Government misreads the Rule. The 2005 amendment to Rule 32.1 did not detract from our holding in Carper that a district court errs “by failing to address [a supervised releasee] personally to determine if he wishe[s] to speak on his own behalf before imposing sentence.” 24 F.3d at 1162. The drafters of the Federal Rules of Criminal Procedure intended for Rule 32.1(b)(2)(E) to require courts “to give the defendant the opportunity to make a statement and present any mitigating information.” Fed.R.Crim.P. 32.1 advisory committee's note (2005 amend.).

Allocution by a supervised releasee gives the court more information on which to base its sentence. It also encourages the supervised releasee to participate in post-revocation sentencing, enhancing his dignity. As one commentator has said, “allocution provides offenders the opportunity to contest any disputed factual bases for sentencing...