United States v. Biagon

510 F.3d 844, 36 Media L. Rep. (BNA) 1289, 2007 U.S. App. LEXIS 29177, 2007 WL 4373597
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 18, 2007
Docket06-10479
StatusPublished
Cited by8 cases

This text of 510 F.3d 844 (United States v. Biagon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Biagon, 510 F.3d 844, 36 Media L. Rep. (BNA) 1289, 2007 U.S. App. LEXIS 29177, 2007 WL 4373597 (9th Cir. 2007).

Opinions

Opinion by Judge THOMAS; Concurrence by Judge KLEINFELD.

THOMAS, Circuit Judge:

In this appeal, we consider whether the district court violated the defendant’s right of allocution when it denied a motion to close the courtroom for sentencing. We conclude that the defendant’s rights were not violated, and affirm the judgment of the district court.

I

On May 4, 2005, an indictment was filed against Agosto Ayson Biagon and a dozen or so other defendants, charging them with conspiracy to steal valuable items, and theft of valuable items, found in U.S. mail bound for military personnel stationed in Japan. The defendants, including Biagon, worked at a company that provided temporary staffing for Nippon Cargo Airlines at the San Francisco International Airport. Biagon pled guilty to mail theft under 18 U.S.C. § 1708, Count Four of the indictment, on November 29, 2005. He admitted to stealing a laptop from the mail. In addition to pleading guilty, Biagon cooperated with the government, offering “valuable information against his co-defendants and about the conspiracy in general,” identifying the individuals involved, corroborating the statements of another cooperator, and agreeing to cooperate in the future against an at-large defendant.

As a result of his cooperation and lack of criminal history, the pre-sentence report recommended Biagon receive a sentence of three months in prison followed by three years of supervised release, along with $2,000 in restitution. The government recommended the same sentence but contended that two years of supervised release was more appropriate. In his sentencing memorandum, Biagon requested that he be sentenced to live in a halfway house in lieu of three months in prison, allowing him to pay the $2,000 restitution while serving his time. He noted that no prison sentence would be required under the Sentencing Guidelines and suggested that he could be given a sentence exceeding three months if he could serve it in a halfway house.

The sentencing memoranda produced by both the government and Biagon were filed under seal. The government moved for an order sealing its sentencing memorandum because “Mr. Biagon cooperated with the government in this prosecution and revelation of these documents could jeopardize him.”

At the beginning of the sentencing hearing, Biagon’s attorney immediately asked the judge to clear the courtroom or move the hearing to the end of the day so that Biagon’s cooperation with the government could be discussed freely, but the district judge refused:

Ms. Leary: Your Honor, can the courtroom be cleared, or can we be moved to a point where it’s easier—
The Court: Well, I don’t think it’s necessary, in the sense that the matters are well laid out in the — both the pre-sentence report and in your respective sentencing memoranda; and so the issues that you raise are.... I understand your position, I understand the government’s position, and I don’t think it’s necessary to bare them in court, and [847]*847therefore, I don’t believe — I’ve sealed the documents, but I don’t need — I’m familiar with all of these cases. There are many of them. So I have a great deal of knowledge about what has happened in this case.
Ms. Leary: I see.
The Court: So if you want to refer to it in sort of elliptical terms, you can do so, but I’m not inclined to seal the courtroom.

The district court again addressed the cooperation issue when it stated: “putting aside the point that we’re not going to discuss, which is sort of the elephant in the room here, but I’m familiar with the elephant as we all are.... ” Later in the hearing, the district court gave Biagon the chance to exercise his right of allocution, asking if there was anything he wished to say. Presumably through a translator, Biagon stated: “I am asking for the forgiveness of this court, from the United States government, for my involvement in this case, and the people that I hurt, I asked for forgiveness. I am very sorry for what I did. And that’s it.” Neither Bia-gon nor his attorney mentioned his cooperation or referred to it during the hearing.

At the hearing, Biagon’s counsel again asked for more than three months in a halfway house instead of three months in prison, in order to allow him to pay restitution, arguing that he would not be able to pay after prison because he would likely be deported upon release. The government continued to recommend a prison sentence. The district court sentenced Biagon to three months’ imprisonment followed by a three year term of supervised release. The court also ordered Biagon to pay restitution of $2,000. This timely appeal of his sentence followed.

II

The sole question in this appeal is whether Biagon’s right of allocution was violated. “In the context of criminal law, the backbone of [our] democratic faith is the right of a criminal defendant to defend himself against his accusers; and it has long been recognized that allocution, the right of the defendant to personally address the court, is an essential element of a criminal defense.” Boardman v. Estelle, 957 F.2d 1523, 1526 (9th Cir.1992) (footnote omitted). The purpose of the right of allocution is to allow a defendant to “bring mitigating circumstances to the attention of the court.” Sherman v. United States, 383 F.2d 837, 839 (9th Cir.1967). Due process requires that a defendant who seeks to speak must be given such an opportunity before a sentence is imposed. Boardman, 957 F.2d at 1524. However, we have “never held that a defendant has a right to unlimited allocution.” United States v. Leasure, 122 F.3d 837, 840 (9th Cir.1997)

The Federal Rules of Criminal Procedure specify a means of implementing this right. Before imposing a sentence, a district court must provide the defendant’s attorney an opportunity to speak, and also must “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)(i) and (ii). The right to allocution “may be satisfied by allowing a defendant an opportunity to make a statement before the end of sentencing but after the court has indicated its tentative conclusions on sentencing.” United States v. Leasure, 122 F.3d 837, 840 (9th Cir.1997).

In this case, the record clearly shows that the district court asked Biagon whether there was anything he wished to say before sentence was imposed, and Biagon made a brief statement to the district court. Biagon actually exercised his right of allocution. He was not deprived of any constitutional right.

[848]*848All of this is conceded by Biagon on appeal.

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Bluebook (online)
510 F.3d 844, 36 Media L. Rep. (BNA) 1289, 2007 U.S. App. LEXIS 29177, 2007 WL 4373597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-biagon-ca9-2007.