United States v. Plotts

• Court: Court of Appeals for the Third Circuit
• Decided: February 19, 2004
• Docket: 02-4575
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

2-19-2004

USA v. Plotts Precedential or Non-Precedential: Precedential

Docket No. 02-4575

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Recommended Citation "USA v. Plotts" (2004). 2004 Decisions. Paper 950. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/950

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Robert Epstein Assistant Federal Defender UNITED STATES Brett Sweitzer, Esq. COURT OF APPEALS David L. McColgin, Esq. FOR THE THIRD CIRCUIT Maureen Kearney Rowley, Esq. Defender Association of Philadelphia Federal Court Division No. 02-4575 Curtis Center, Independence Square West, Suite 540 West Philadelphia, PA 19106

UNITED STATES OF AMERICA Attorneys for Appellant

v. Patrick L. Meehan U.S. Attorney, Eastern District RICHARD PLOTTS, of Pennsylvania Laurie Magid Appellant Deputy U.S. Attorney Robert A. Zauzmer Assistant U.S. Attorney Terri A. Marinari On Appeal from the Assistant U.S. Attorney United States District Court for the 615 Chestnut Street Eastern District of Pennsylvania Philadelphia, PA 19106 D.C. Crim. Action No. 02-cr-00020-01 (Honorable Stewart Dalzell) Attorneys for Appellee

Submitted Under Third Circuit LAR OPINION OF THE COURT 34.1(a) October 30, 2003 AM BRO, Circuit Judge Before: SCIRICA, Chief Judge, NYGAARD and AMBRO, Richard Plotts appeals the District Circuit Judges Court’s decision revoking supervised release and imposing a sentence of (Opinion filed February 19, 2004) imprisonment. Because Plotts was denied the right of allocution at sentencing, we reverse and remand to the District Court for resentencing.1 of counsel, the District Court found that Plotts had: (1) been in possession of a I. Factual and Procedural Background firearm; (2) engaged in credit card fraud2 ; (3) used drugs, including opiates, In July 1995, Plotts was arrested on repeated occasions; and (4) lied to his in Delaware on the suspicion of bank probation officer. 3 Following these robbery. Shortly thereafter, a grand jury findings, the District Court revoked returned an indictment against Plotts, Plotts’s supervised release and sentenced charging him with bank robbery in him to 30 months imprisonment followed violation of 18 U.S.C. § 2113(a). He by 30 months supervised release. Prior pled guilty to a single count and received to sentencing, Plotts was not given an a sentence of 80 months imprisonment opportunity to address the Court, known followed by three years supervised as allocution. He appeals, alleging that release. In February 2002 (after serving (1) he was denied the right of allocution his sentence and while on supervised at his release revocation hearing before release), responsibility for his sentence was imposed, and (2) the supervision was transferred to the District Court improperly treated a Probation Office for the Eastern District charged Grade C violation as a Grade A of Pennsylvania. violation for sentencing purposes (thus increasing his sentence). 4 Plotts was arrested in November 2002 by the Pennsylvania State Police for violating 18 Pa. Cons. Stat. § 6105 (felon in possession of a firearm). Shortly thereafter, the Probation Office 2 filed a petition to revoke Plotts’s While we are unaware of any supervised release, alleging six violations formal criminal charges against Plotts for of his release conditions. The District credit card fraud, he admitted to his parole Court conducted a revocation hearing in officer using another individual’s credit December 2002. The Government card for an unauthorized purpose. presented the testimony of six witnesses. 3 Plotts presented no evidence. After On appeal, Plotts and the considering the evidence and arguments Government present different versions of the facts and circumstances surrounding the revocation of his supervised release. While this may be an area for the District 1 In its brief, the Government states Court to explore on resentencing, it is it does not oppose resentencing in this irrelevant to our resolution of this case. case. We commend the United States 4 Attorney’s Office for its candor and We have jurisdiction pursuant to professionalism. 28 U.S.C. § 1291.

2 II. Standard of Review case for resentencing.5

As Plotts failed to preserve his objections at the revocation hearing, we 5 Plotts also argues the District review the decision of the District Court C ourt committed plain error b y for plain error. United States v. Adams, mischaracterizing a Grade C violation, 252 F.3d 276, 279 (3d Cir. 2001); see unauthorized use of a credit card, as a also Fed. R. Crim. P. 52(b). Under plain Grade A violation for sentencing purposes. error review, we may grant relief if As resentencing is granted on the ground (1) the District Court committed an that allocution was improperly denied, we “error,” (2) it was “plain,” and (3) it decline to entertain this alternative affected “substantial rights” of the argument. We note, however, that the defendant. United States v. Olano, 507 revocation petition filed by the Probation U.S. 725, 732 (1993). “A deviation from Office with the District Court alleges a a legal rule is [an] ‘error.’” United States Grade C violation. In its brief, the v. Russell, 134 F.3d 171, 180 (3d Cir. Government concedes that Plotts’s actions 1998) (citation omitted). It is “plain” do not constitute a Grade A violation, but when “‘clear’ or ‘obvious.’” Id. (citation instead insists they should be Grade B (not omitted). In order for an error to affect Grade C). Because the petition already “substantial rights,” it must have been alleges a Grade A violation (possession of “prejudicial”; in other words, “it must a firearm), Plotts would suffer little have affected the outcome of the district prejudice if, prior to resentencing, the court proceedings.” Olano, 507 U.S. at Probation Office were to amend the 734. If these requirements are satisfied, violation grade assigne d to h is we should exercise our discretion to unauthorized use of a credit card. See U.S. grant relief if the error “‘seriously affects Sentencing Guidelines Manual § 7B1.4(a) the fairness, integrity or public reputation (listing the suggested imprisonment ranges of judicial proceedings.’” Id. at 736 for Grades A, B and C violations). Until (citation omitted); see also Adams, 252 revised by the Probation Office, however, F.3d at 284-85. these actions rema in as initia lly characterized, a Grade C violation. See III. Analysis generally 18 U.S.C. § 3603(2) (stating that it is the duty of the probation officer to be We conclude that a criminal aware of the conditions of supervised defendant’s right of allocution extends to release and to report to the sentencing release revocation hearings. Because the court conduct which may violate those District Court committed plain error in terms); U.S. Sentencing Guidelines denying Plotts’s right, we remand this Manual § 7B1.2 (same); see also Fed. R. Crim. P. 32.1(b)(2)(A) (requiring that a defendant at a revocation hearing receive

3 The rule in our Circuit is that disputed facts in connection with denying the right of allocution (at least in sentencing or any defense arguments that sentencing hearings) will generally result might reduce the applicable guideline in resentencing under plain error review. range or ultimate sentence. Id. All of Adams, 252 F.3d at 289. this is based on the belief that a Rule 32(i)(4)(A)(ii) of the Federal Rules defendant is often his most persuasive of Criminal Procedure states a court and eloquent advocate. Id. at 288. must, before imposing sentence, “address the defendant personally in order to While not constitutional, the right permit the defendant to speak or present of allocution is “ancient in origin, and it any information to mitigate the is the type of important safeguard that sentence.” In Adams, we concluded the helps assure the fairness, and hence, District Court in that case committed an legitimacy, of the sentencing process.” “error” that was “plain” by failing to Id. Accordingly, we concluded in address the defendant personally prior to Adams that denial of allocution at the sentencing. 252 F.3d at 286. With defendant’s sentencing hearing was plain regard to the “affects substantial rights” error and warranted resentencing. Id. at portion of the plain error analysis, we 288-89. interpreted Olano as requiring “the defendant to make a specific showing of We have not ruled whether a prejudice, unless he can show that the defendant’s right of allocution extends to error should be presumed prejudicial, or a revocation hearing. The Federal Rules that the error belongs in a special of Criminal Procedure fail to define category of errors that should be explicitly the scope of allocution rights. corrected regardless of prejudice (i.e., the Almost every circuit court to consider the category of structural errors).” Id. at issue, however, has ruled that allocution 285-86. Prejudice should be presumed, must be permitted before imposition of however, when a defendant shows the sentence at a supervised release (or violation of a right could “have played a parole) revocation hearing. See United role in the district court’s sentencing States v. Reyna, No. 01-41164, 2004 decision.” Id. at 287. We also stated that U.S. App. LEXIS 1134 (5th Cir. Jan. 26, violation of the right of allocution could 2004) (en banc)6 ; United States v. play a role in a court’s sentencing decision whenever there exists any 6 The Reyna Court approved of the plain error analysis in Adams, including “written notice of the alleged violation”). the conclusion that prejudice should be On resentencing, the District Court should presumed when violation of a right could consider the effect, if any, of its alleged have affected a court’s sentencing mischaracterization in the first instance. decision. 2004 U.S. App. LEXIS at *16.

4 Waters, 158 F.3d 933, 944-45 (6th Cir. 921 (5th Cir. 1994); United States v. 1998); United States v. Patterson, 128 Carper, 24 F.3d 1157, 1160-62 (9th Cir. F.3d 1259, 1260-61 (8th Cir. 1997); 1994); United States v. Barnes, 948 F.2d United States v. Rodriguez, 23 F.3d 919, 325, 329-30 (7th Cir. 1991). 7 In light of our previously expressed views in Adams on the importance of allocution, and in reliance on the well-reasoned opinions in The Fifth Circuit, however, other circuits, we too conclude that a disagreed with Adams somewhat as to defendant’s right of allocution extends to when an appellate court should exercise its revocation hearings. discretion in correcting a plain error. In Adams, we stated without qualification For similar reasons, we conclude that denial of the right of allocution affects that the District Court’s error in this case the “fairness, integrity or public reputation was “plain.” An error may be clear or of judicial proceedings.” 252 F.3d at 288 obvious absent controlling Supreme (citation and quotations omitted). In Court or Third Circuit precedent. United contrast, the Fifth Circuit concluded that States v. Evans, 155 F.3d 245, 251-52 “[i]n a limited class of cases, a review of (3d Cir. 1998). In such a case, decisions the record may reveal, despite the presence from other circuit courts are instructive. of disputed sentencing issues, that the See United States v. Barbosa, 271 F.3d violation of a defendant’s right to 438, 456 (3d Cir. 2001) (relying on allocution does not violate the last Olano previous decisions of two circuit courts prong. This case is a good example.” in finding plain error). In Plotts’s case, Reyna, 2004 U.S. App. LEXIS at *19. the weight of appellate authority We are bound, however, to follow discussed above is sufficient to render Adams, and it carves out no exception on the District Court’s error clear and its face. Further, the Reyna exception is, by its own terms, limited; indeed, the Fifth Circuit concluded that resentencing is 7 “ordinarily” required. Id. at *22. Reyna, Although the Eleventh Circuit’s for example, had appeared before the same decision in United States v. Frazier, 283 judge three times, twice for violations of F.3d 1242 (11th Cir. 2002), appears to the terms of his supervised release. support the position that allocution is not Although Reyna did not have the required at a revocation hearing, this opportunity to allocute at his opinion was later vacated. 324 F.3d 1224 most recent revocation hearing, he “had (11th Cir. 2003). The only other circuit the opportunity to allocute both at his court to endorse the initial position in original sentencing and when resentenced Frazier is the Tenth Circuit in an following his first violation of supervised unpublished decision. See United States v. release.” Id. at *20. Reyna is thus Fennell, 986 F.2d 1430, 1992 WL 401587 distinguishable. (10th Cir. 1992).

5 obvious.

Based upon Adams, we also conclude that prejudice to “substantial rights” may be presumed in this case because allocution could have played a role in the Court’s sentencing decision. 252 F.3d at 287. First, there exists no statutory minimum term of imprisonment upon revocation of supervised release. See 18 U.S.C. § 3583(e)(3) (permitting imprisonment for “all or part” of the term of defendant’s supervised release); see also 18 U.S.C. § 3583(h). Second, even though Plotts’s 30-month added prison term was the lowest sentence within the recommended Guidelines Manual range of 30 to 37 months, the Court had discretion to impose an even lower sentence, as the revocation provisions in the Guidelines are advisory policy statements and not binding. See United States v. Schwegal, 126 F.3d 551, 554-55 (3d Cir. 1997).

Finally, denial of the right of allocution “is not the sort of ‘isolated’ or ‘abstract’ error that we might determine does not impact the ‘fairness, integrity or public reputation of judicial proceedings.’” Adams, 252 F.3d at 288 (citation omitted). As such, this is an appropriate case in which to grant relief.

*****

We reverse and remand to the District Court for resentencing.