United States Court of Appeals For the First Circuit
No. 08-1497
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX GONZALEZ-MELENDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lipez, Hansen * and Howard, Circuit Judges.
Rafael F. Castro Lang for appellant. German A. Rieckehoff, Assistant United States Attorney, with whom Rosa E. Rodriguez Velez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
January 13, 2010
* Of the Eighth Circuit, sitting by designation. HOWARD, Circuit Judge. In this opinion, we address
several issues with respect to the conviction and sentence of Felix
Gonzalez-Melendez for aiding and abetting a carjacking in violation
of 18 U.S.C. § 2219(1) and (2). Previously, we remanded a portion
of this case to the district court (we did, however, retain
jurisdiction), so that it could determine whether certain prior
out-of-court statements made by Lawrence Evans, the supervisor of
both the victim of the carjacking and the appellant, were
discoverable under the Jencks Act. See United States v. Gonzalez-
Melendez (Gonzalez-Melendez I), 570 F.3d 1, 2-3 (1st Cir. 2009)
(per curiam). In addition, we asked the district court, on remand,
to augment the record with respect to its handling of a jury note.
This note had requested copies of the indictment and the court's
instructions of law, as well as an explanation of an unspecified
issue. See id. at 3.
Now that the district court has provided the information
we sought, we proceed to decide the totality of Gonzalez-Melendez's
appeal. Although the trial leading to the appellant's conviction
was not free from infirmity, it did not suffer from a crippling
malaise. Accordingly, we affirm the conviction. The same cannot
be said about the sentence: as the government concedes in its
brief, the appellant was not afforded the opportunity to allocute
before the district court pronounced sentence. Consequently, we
vacate the sentence and remand for re-sentencing.
-2- I. Facts
This case began when the appellant, 1 who was a long-time
employee of Essroc San Juan, a cement manufacturer, who had
ascended from his position as control room operator to process
engineer, was passed over for promotion to the position of
production manager. As the appellant was the only qualified
applicant within the San Juan plant who applied for the position,
management conducted a broader search and settled on Kevin
Grotheer, who was previously employed at one of Essroc's plants in
Canada, to fill the production manager position. Gonzalez-
Melendez, who had a history of difficult relations with his
colleagues, was displeased with this personnel action, and his
relationship with Grotheer was strained from the beginning.
At one point, the appellant expressed his anger at and
frustration with Grotheer to three acquaintances. He concluded
this conversation by expressing his wish that someone physically
assault Grotheer. There was further testimony that Gonzalez-
Melendez met with these three acquaintances to develop a plan to
carjack Grotheer in the hope of frightening Grotheer so thoroughly
1 The appellant does not challenge the sufficiency of the evidence, and the facts are largely not in dispute. We thus provide a truncated background narrative. See United States v. Santiago, 566 F.3d 65, 67 (1st Cir. 2009). We supplement this description with additional details as necessary to resolve issues raised in this appeal.
-3- that he would leave Puerto Rico, thereby clearing the way for the
appellant to ascend to the production manager position.
A plan to effectuate this goal was eventually hatched.
As agreed, Gonzalez-Melendez called to inform his accomplices when
Grotheer left the plant one evening in November 2006. Consistent
with their plan, Gonzalez-Melendez's accomplices successfully
carjacked Grotheer using several firearms, and robbed him of
approximately $700. In addition, the accomplices left Grotheer
unharmed on the side of the road, and drove off in the company-
owned Jeep that Grotheer had been driving.
The next morning, Grotheer received a threatening voice
message from an unidentified caller, which he relayed to the
general manager of Essroc San Juan, Lawrence Evans. As a result of
receiving this message, Grotheer relocated to another part of
Puerto Rico. Even after this move Grotheer continued to fear for
his safety, and in January 2007 he left Puerto Rico due to these
safety concerns.
The police commenced an investigation of the carjacking,
and in connection therewith interviewed Gonzalez-Melendez. In the
interview, Gonzalez-Melendez implicated his accomplices and made no
secret of his anger and resentment that Grotheer was selected to
fill the production manager position. In the course of this
dialogue, Gonzalez-Melendez admitted that he hoped that Grotheer
-4- would suffer physical harm, which would induce him to leave Puerto
Rico.
In due course, a grand jury indicted the appellant on one
count of aiding and abetting a carjacking in violation of 18 U.S.C.
§ 2119 (1) and (2), and one count of using a firearm during and in
relation to a carjacking (which is a crime of violence), in
violation of 18 U.S.C. § 924(c).
The case proceeded to trial, during which Gonzalez-
Melendez lodged challenges to several of the district court's
rulings, including a challenge to the court's conduct of jury
selection. In addition, the defendant challenged the district
court's evidentiary rulings with respect to certain out-of-court
statements testified to by both Grotheer and Evans. Relatedly,
Gonzalez-Melendez asserted that he was entitled to discovery of
certain prior out-of-court statements that Evans had made to the
FBI, which were allegedly recorded on an FD-302 Form. Finally, the
appellant objected to the district court's handling of the first of
several notes the jury sent the judge. Specifically, Gonzalez-
Melendez contended that no attempt was made to inform him of this
note, and that, in violation of Rule 43 of the Federal Rules of
Criminal Procedure he was given no opportunity to argue for a
proposed response.
The jury convicted Gonzalez-Melendez as to the carjacking
count, but acquitted him as to the firearms count. After the
-5- preparation of a pre-sentence report and the submission of
sentencing memoranda and supporting documents, the district court
imposed a sentence of 121 months, which was the lowest sentence
within the Guidelines range, along with a term of three years'
supervised release. During the course of sentencing, the appellant
was not afforded an opportunity to allocute or a functionally
equivalent opportunity to address the court directly and advocate
for an appropriate sentence.
This timely appeal followed. In our initial
consideration of the case, we noted that the government conceded
that the district court had not conducted an independent review of
the FD-302 Form, and we remanded the case to permit the district
court to conduct such a review. See Gonzalez-Melendez I, 570 F.3d
at 2-3. Since a remand was already required to resolve the Jencks
Act issue, we also invited the district court to augment the record
with regard to its handling of the first jury note. See id. at 3.
On remand, the district court ordered the FD-302 Form
disclosed to appellant's trial and appellate counsel. In addition,
the court clarified that its recollection was that it had
independently reviewed the 302 Form and concluded that the 302 Form
was not a discoverable "statement," within the meaning of the
Jencks Act, 18 U.S.C. § 3500. In response to a request from the
defendant, on August 7, 2009, the district court held a hearing at
which the FBI agent who prepared the 302 Form at issue testified
-6- that he did not record or transcribe Evans's statement, nor did
Evans sign or adopt either the agent's notes or the 302. Based on
this testimony and its own recollection, the district court
concluded that the 302 Form was not Jencks material.
In addition, in its July 7, 2009 submission to us, the
district court explained its recollection of its handling of the
first jury note. 2 According to the district court, consistent with
its routine practice, as well as the contemporaneously-produced
Minutes of Proceedings, it discussed the jury note with counsel and
provided the jury with copies of the indictment and the charge.
II. Challenge to Jury Selection
With these additions to the record, we now address all
remaining issues in the appeal, beginning with appellant's
challenges to the conduct of jury selection.
In this case, the district court employed the so-called
"blind strike" method of jury selection. Under this method, both
parties simultaneously, rather than in alternating strikes,
exercise their peremptory challenges and thus do not know which
jurors the other has struck. E.g., United States v. Bermudez, 529
F.3d 158, 163-64 (2d Cir. 2008), cert. denied, 129 S. Ct. 956
(2009). The Rules of Criminal Procedure provide that ordinarily a
2 In this note, the jury requested copies of the indictment and the court's instructions of law, as well as an explanation of an unspecified issue from the district court. See Gonzalez-Melendez I, 570 F.3d at 3.
-7- defendant in a non-capital felony case is entitled to ten
peremptory challenges, and the prosecution is entitled to six. Id.
at 164 (citing Fed. R. Crim. P. 24(b)(2)); see also United States
v. Brown, 510 F.3d 57, 72 n.12 (1st Cir. 2007). Should the
district court choose to seat any alternate jurors, see Fed. R.
Crim. P. 24(c)(1), the rules require that each party be given
additional peremptory challenges. Fed. R. Crim. P. 24(c)(4).
These additional peremptory challenges may only be exercised on
alternate jurors. Id.; United States v. Brown, 510 F.3d 57, 72
(1st Cir. 2007). To ensure this, the district court is required to
designate the alternate jurors at voir dire. Brown, 510 F.3d at
72.
Here, the district court chose to seat two alternate
jurors. Consistent with Rule 24(c)(4)(A), it awarded each party an
additional peremptory challenge. See Rule 24(c)(4)(A) (providing
that each party is entitled to "One Additional peremptory
challenge" when the court empanels two alternates). This gave the
defense a total of eleven peremptory challenges (ten from Rule
24(b)(2) and one from Rule 24(c)(4)(A)), and the government seven
(six from Rule 24(b)(2) and one from Rule 24(c)(4)(A)).
At voir dire, however, the court did not designate which
jurors would be alternates. Instead, it allowed each side to
exercise their peremptory strikes against an undesignated pool of
jurors. The defendant argues that this jury selection procedure
-8- violated Rule 24(c)'s explicit command that the additional
peremptory challenge conferred by that Rule be used only to strike
alternate jurors, and consequently, impaired his exercise of his
peremptory challenges. Our review of this argument, preserved
below, is de novo, see United States v. Gonzalez-Velez, 466 F.3d
27, 39 (1st Cir. 2006).
The district court erred when it failed to designate the
alternate jurors at voir dire. "The mandate in Rule 24(c)(4) that
'additional challenges may be used only to remove alternate jurors'
implies that these alternates must be designated at voir dire, when
the parties still have the opportunity to use peremptory challenges
to remove potential jurors . . . ." Brown, 510 F.3d at 72; United
States v. Flaherty, 668 F.2d 566, 601 (1st Cir. 1981); see also
United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000);
United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998).
Gonzalez-Melendez argues that this error requires
automatic reversal. He relies upon our decision in United States
v. Vargas, in which we said that "[t]he denial or impairment of the
right [to exercise peremptory challenges] is reversible error
without a showing or prejudice." 606 F.2d 341, 346 (1st Cir. 1979)
(quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)). In recent
years, however, the Supreme Court has disavowed the sort of
reasoning used in Vargas and has indicated that mistaken denials of
peremptory challenges do not ordinarily warrant automatic reversal.
-9- See Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009); United States
v. Martinez-Salazar, 528 U.S. 304, 317 n.4 (2000). Instead, we
must ask whether the Rule 24(c)(4) error affected Gonzalez-
Melendez's substantial rights. Fed. R. Crim. P. 52(a). Under that
approach, we deem non-constitutional errors to be harmless when "it
is highly probable that the error did not influence the verdict."
United States v. Pakala, 568 F.3d 47, 52 (1st Cir. 2009) (quoting
United States v. García-Morales, 382 F.3d 12, 17 (1st Cir. 2004)).
On two previous occasions, we have held that a violation
of Rule 24(c) did not affect the defendant's substantial rights.
Brown, 510 F.3d at 72; Flaherty, 668 F.2d at 601. In both of these
decisions, we expressed skepticism about the prejudicial impact of
a Rule 24(c) violation. Brown, 510 F.3d at 73 ("[W]hile we regret
the district court's failure to follow the rule, we cannot imagine
how Brown's substantial rights could possibly have been
prejudiced."); Flaherty, 510 F.3d at 73 ("Despite the clear
transgression of the rule, we do not perceive how defendants'
exercise of their peremptory challenges was curtailed in any way.
. . We do not think that combining the regular and alternate
challenges amounts to a violation of defendants' substantial rights
. . . ."). Gonzalez-Melendez, however, distinguishes Brown and
Flaherty. Unlike in those cases, he observes, in this case an
alternate juror was actually seated. Thus, he claims, prejudice is
readily apparent in his case.
-10- We do not see how that conclusion follows. It is not
evident that the composition of the jury would have differed had
the district court adhered to Rule 24(c)(4). Moreover, even if a
different venire member would have been selected as the alternate
juror, there is no basis in the record for concluding that the
alteration in jury composition had an injurious influence on the
verdict. Therefore, we conclude that the court's error was
harmless.
III. Evidentiary Objections
We turn next to the appellant's evidentiary objections.
Specifically, he argues that the testimony of Evans and Grotheer
regarding a threatening voice message Grotheer received should have
been excluded as hearsay or as unduly prejudicial given its limited
probative value under Rule 403. A district court's evidentiary
rulings, particularly those made pursuant to Rule 403, are due
considerable deference. United States v. Wyatt, 561 F.3d 49, 53 &
n.3 (1st Cir.), cert. denied, 129 S. Ct. 2818 (2009) (citation
omitted); Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1,
7-8 (1st Cir. 2000).
We begin with the hearsay argument. In a single sentence
of his brief, Gonzalez-Melendez asserts that "[t]he testimony of
Lawrence Evans concerning the phone calls made to Kevin [Grotheer]
outside of his presence was not only hearsay but objectionable
under Fed. R. Evid. 403 since their probative value was outweighed
-11- by the improper prejudice caused." Aside from this, the appellant
makes no further argument about hearsay; he does not explain
whether Evan's testimony was offered for its truth, offered to show
its effect on the speaker, or was subject to any of the exceptions
or exclusions to the hearsay rule. Indeed, Gonzalez-Melendez does
not so much as cite to the relevant Rule of Evidence. In these
circumstances, the appellant's hearsay argument, which does not
explain why Evans's testimony was hearsay, lacks sufficient
developed argumentation and is therefore waived. United States v.
Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir. 2008), cert. denied, 129
S. Ct. 1017 (2009) (citing United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)).
The appellant's remaining evidentiary argument is that the
testimony about the voice mail was unduly prejudicial in light of
its limited probative value. When testifying about the voice mail,
neither Evans nor Grotheer identified who left the voice mail.
Accordingly, the appellant now claims that this testimony left the
jury to speculate that the appellant was somehow responsible for the
threatening voice mail.
Even assuming that the court erred in admitting the
testimony, any error was harmless. See Fed. R. Crim. P. 52(a). 3
3 Although we are treating the appellant's 403 argument as preserved, a strong argument could be made that it was not. A review of the record indicates that appellant's counsel did not object to either of the witness' testimony on 403 grounds. See United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003) ("If
-12- The government presented ample evidence regarding the appellant's
animus towards Grotheer. The jury heard testimony that Gonzalez-
Melendez resented Grotheer's selection as production manager, that
he had a hostile relationship with Grotheer and other co-workers,
that he had expressed a desire to harm Grotheer, and that he hatched
a plan to carjack Grotheer with his accomplices. Under these
circumstances, we do not believe that evidence of this voice mail
affected the outcome of the trial, and therefore any error was
harmless. See United States v. Adams, 375 F.3d 108, 113 (1st Cir.
2004) ("Even if we found a violation of Rule 403, we would regard
any error as harmless because the evidentiary ruling could not have
affected the outcome."); see also United States v. Mangual-Santiago,
562 F.3d 411, 426 (1st Cir. 2009).
IV. Jencks Act Violation
On remand, the district court ordered that the appellant's
trial and appellate counsel be furnished with copies of the FD-302
Form that contained alleged "statements" of Lawrence Evans, which
purportedly should have been disclosed pursuant to the Jencks Act,
18 U.S.C. § 3500. The district court directed the defendant's
counsel to "specify docket entries or trial transcripts relevant to
the [Jencks Act] issue." Gonzalez-Melendez identified relevant
testimony, but declined to argue the matter because we retained
a new basis for objection is raised for the first time on appeal, the ground is not subject to harmless error review, and may only be reviewed for plain error.").
-13- appellate jurisdiction over the case. Based on the information
before it, the district court concluded that no Jencks Act violation
occurred. In response to the appellant's objection to this
conclusion, the district court held a hearing to examine this issue
in greater detail.
At the hearing, the district court heard testimony from
Special Agent Rubén A. Marchand-Morales, the FBI agent who prepared
the FD-302 Form, as we had suggested in our remand order. Morales
testified that he did not record or transcribe Evans's oral
statement. Rather, Morales testified that he took notes on small
scraps of paper, on which he relied to create the FD-302 Form.
Morales further clarified that Evans neither signed nor adopted
either the 302 or the notes. Based on this testimony, the district
court reaffirmed its conclusion that the FD-302 form was not a
"written statement of a witness," within the meaning of 18 U.S.C.
§ 3500(e)(1), and further found that the 302 was not a
"substantially verbatim recital of an oral statement made by a
witness," within the meaning of 18 U.S.C. § 3500(e)(2). See
Gonzalez-Melendez I, 570 F.3d at 3-4.
Review of a district court's Jencks Act determination
typically is considered to be for abuse of discretion. See United
States v. Femia, 57 F.3d 43, 45 (1st Cir. 1995) (citing United
States v. Foley, 871 F.2d 235, 239 (1st Cir. 1989)). When a
district court's decision is reviewed for abuse of discretion,
-14- underlying legal conclusions are reviewed de novo and findings of
fact for clear error. See, e.g., United States v. Aviles-Sierra,
531 F.3d 123, 126 (1st Cir. 2008); United States v. Guerrier, 428
F.3d 76, 79 n.1 (1st Cir. 2005). We will not find clear error
unless, after reviewing all of the evidence, we are "left with the
definite and firm conviction that a mistake has been committed."
United States v. Arbour, 559 F.3d 50, 53 (1st Cir. 2009).
We cannot say that the district court's conclusion is
clearly erroneous. To begin, there are questions as to whether the
FD-302 form was a "substantially verbatim recital of an oral
statement made by a witness" within the meaning of 18 U.S.C. §
3500(e)(2). Although the appellant points out that Morales
acknowledged that the FD-302 form was a "detailed report" that
contained 99% of what Evans told him, Morales specifically denied
that the FD-302 was a substantially verbatim recital of Evans's oral
statement and instead called it a summary. Morales's
characterization of the FD-302 is buttressed by the manner of
transcription he employed when interviewing Evans. Morales took
notes on small scraps of paper, relying on those scraps to compile
the FD-302 form. This somewhat scattered manner of transcription
puts into further doubt whether Evans's statement was captured
"substantially verbatim."
And it is even more unclear whether the FD-302 form is
discoverable under subsection (e)(1) of 18 U.S.C. § 3500. For the
-15- form to be discoverable under this subsection, Evans would have
needed to "adopt" or "approve" the statement he gave to Morales.
Although Morales testified that he "repeated some of the points of
the interview to [Evans]," there is nothing in the record that
suggests that Evans then adopted or approved of these points.
Goldberg v. United States, 425 U.S. 94, 110 (1976) (noting, when
remanding the case to the district court for a determination under
the Jencks Act, that "it will be necessary to determine whether the
prosecutors' notes were actually read back to Newman and whether he
adopted or approved them.") (emphasis added)); see also United
States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998) ("A
written summary of a witness is not a statement unless the evidence
shows that the witness adopted the notes, a phenomenon that would
occur, for example, if 'the interviewer read the statement back to
the witness and . . . the witness approved the statement.'")
(quoting United States v. Gonzalez-Sanchez, 825 F.2d 572, 586 (1st
Cir. 1987)). Gonzalez-Melendez has not argued that Evans adopted
the notes, and, on this record, we cannot say with requisite
certainty that the district court erred when finding that the 302
Form fell outside the scope of the Jencks Act. As a result, we
affirm the district court's conclusion. 4
4 Because we affirm the district court's conclusion that the Form was not discoverable under the Jencks Act, we have no reason to apply the especially rigorous form of harmless error review that is required when Jencks Act material was not disclosed. See Gonzalez-Melendez I, 570 F.3d at 5 (citing Goldberg, 425 U.S. at
-16- V. Jury Note
The final trial-related challenge advanced by Gonzalez-
Melendez relates to the district court's handling of the jury's
first note. This note requested copies of the indictment and the
instructions and concluded with the ambiguous phrase "please
explain." On appeal, the defendant asserted, and the government
conceded, that the district court never informed the parties of this
note and its response to it.
Although we would not do so in the ordinary course, we
invited the district court to augment the record with respect to the
first jury note because a remand was required in any event for a
determination of the Jencks Act issue. Gonzalez-Melendez I, 570
F.3d at 3. On remand, the district court explained that its routine
practice is to provide the jury with copies of the indictment and
instructions, and cited to contemporaneously-produced Minutes of
Proceedings, which suggested that the first jury note was discussed
with counsel for both sides.
We have previously held that "[a] district court's failure
to attempt to inform defense counsel about the existence of a jury
note, and further failure to solicit defense council's input
regarding any response to such a note, violates Rule 43 of the
Federal Rules of Criminal Procedure." Gonzalez-Melendez I, 570 F.3d
at 3 (citing United States v. Ofray-Campos, 534 F.3d 1, 17 (1st
111 n.21).
-17- Cir.), cert. denied, 129 S. Ct. 588 (2008)). Here, although the
record contains contradictory indications, and the district court's
handling of the note did not comport with the preferred practice we
have articulated for handling notes from the jury, see Ofray-Campos,
534 F.3d at 18 (citing United States v. Maraj, 947 F.2d 520, 525
(1st Cir. 1991)), it appears likely that the defendant was informed
of the note, and the district court's response to the note was
proper. Cf. Cipes v. Mikasa, Inc., 439 F.3d 52, 56-57 (1st Cir.
2006) (explaining that judicial proceedings enjoy a presumption of
regularity and dismissing claim that district court misrepresented
contents of jury note) (citing Oulette v. United States, 852 F.2d
371, 374 (1st Cir. 1988))). Withal, any error the district court
may have made with respect to the first jury note was harmless. 5
See Cipes, 439 F.3d at 56 (noting that district court's failure to
follow prescribed procedure for handling jury note engenders
harmless error review); Maraj, 947 F.2d at 526.
5 We can be sure of the harmlessness of this error because the note, received at the beginning of deliberations, did not suggest that the jury suffered from substantial confusion or needed explanation of any specific topic. Moreover, the jury continued to deliberate and request additional materials and clarification. Indeed, the jury sent the judge two more notes before eventually reaching a verdict. Thus, it is likely that the jury's need for an explanation, and any consequent jury confusion, dissipated before it rendered a verdict. Therefore, the appellant suffered no prejudice.
-18- VI. Cumulative Error
Before we will affirm the conviction in this case, we must
be satisfied that the combination of the asserted errors, none of
which individually requires reversal, did not disfigure the
proceedings so significantly as to undermine our confidence that the
defendant received a fair trial. See United States v. Sepulveda,
15 F.3d 1161, 1195-96 (1st Cir. 1993) ("Individual errors,
insufficient in themselves to necessitate a new trial, may in the
aggregate have a more debilitating effect.") (citations omitted).
In considering a claim of cumulative error, we look to the impact
of a number of variables, such as the nature and number of the
errors, their interrelationship, if any, how the district court
dealt with the errors as they arose, the length of the trial, and
the strength of the government's case. Id. at 1196.
Here, although the district court allegedly committed
several errors with respect to jury selection, its handling of
evidentiary objections, and its handling of the jury note, these
alleged errors were all relatively benign. Moreover, the alleged
errors were generally not related to one another, which tends to
lessen our concern that the effect of any error was compounded.
Accordingly, we are satisfied that the appellant's
conviction need not be disturbed based on any of the individual
errors that he has assigned, and that these errors cumulatively do
not compel a different outcome.
-19- VII. Sentencing Challenge
Having satisfied ourselves that the appellant's conviction
is sound, we turn to the sentence. Here, we find no similar
comfort. The appellant's primary contention on appeal is that he
was denied his opportunity to address the court directly and be
heard prior to sentencing. The Rules of Criminal Procedure
guarantee this right, see Fed. R. Crim. P. 32(i)(4)(A)(ii), 6 which
has long been accorded special importance at common law. See United
States v. Behrens, 375 U.S. 162, 165 (1963) (recognizing right of
allocution as "ancient in law" and codified in Rule 32); United
Sates v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). Though
such circumstances will be "few and far between," with "doubts
resolved in the defendant's favor," where the totality of the
circumstances "clearly and convincingly" show that the defendant was
afforded the right address the court on any subject of his choosing
prior to the imposition of his sentence, a sentence will stand even
in the absence of specific compliance with the imperative of Rule
32. Id. (citing Green v. United States, 365 U.S. 301, 304-05
(1961)); see also United States v. Mescual-Cruz, 387 F.3d 1, 11 (1st
Cir. 2004).
6 The text of Rule 32 provides in pertinent part that "[b]efore imposing sentence, the court 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)(ii).
-20- In the present case, the district court transgressed the
specific provision of Rule 32(i)(4)(A)(ii) by not inviting the
defendant to speak. The appellant argues that although the
transcript reveals that his counsel was permitted to address the
court, there is no indication -- let alone the powerful indication
required under our precedent -- that he was afforded the functional
equivalent of allocution. The government agrees.
Where a defendant has been denied the right to allocute,
this error can almost never be regarded as harmless. De Alba Pagan,
33 F.3d at 129-30 ("[W]e cannot dismiss the error as harmless. As
early as 1689, the common law acknowledged that a court's failure
to invite a defendant to speak before sentencing required reversal
. . . . It is settled that a failure to comply with the mandate of
Rule 32[(i)(4)(A)(ii)] ordinarily requires vacation of the sentence
imposed without a concomitant inquiry into prejudice."). Instead,
this error irremediably poisons the sentence and requires that the
proceedings be held afresh. See Mescual-Cruz, 387 F.3d at 11. When
the sentencing guidelines were still mandatory, some courts held
that a failure to permit allocution could be considered harmless
where the defendant's sentence was "already as short as it could
possibly be under the [Sentencing] Guidelines," United States v.
Carper, 24 F.3d 1157, 1162 (9th Cir. 1994). Post-Booker, this
suggestion has less force because the defendant's presentation may
-21- convince the court to craft a non-guidelines sentence. Accordingly,
we remand this case for re-sentencing. 7
VIII. Conclusion
Because we are satisfied that appellant's conviction
suffered from no prejudicial errors, it is affirmed. But because
Gonzales-Melendez was not afforded his right of allocution, his
sentence is vacated and the matter is remanded to the district court
for further proceedings consistent with this opinion.
7 Because we remand this case for re-sentencing, we need not take up the appellant's remaining sentencing arguments, and note that he is not precluded from seeking a non-guidelines sentence during re-sentencing. See De Alba Pagan, 33 F.3d at 130 n.6.
-22-