United States v. Silsby
Opinion
USCA1 Opinion
January 13, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 94-1492
No. 94-1493
UNITED STATES,
Appellee,
v.
SHAWN D. SILSBY,
Defendant, Appellant.
__________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
___________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
___________________
Tina Schneider on brief for appellant. ______________
Jay P. McCloskey, United States Attorney, and Michael M. _________________ __________
DuBose, Assistant U.S. Attorney, on brief for appellee. ______
__________________
__________________
Per Curiam. Defendant-appellant Shawn D. Silsby ___________
pleaded guilty to two counts of an indictment charging him
with possession with intent to distribute marijuana in
violation of 21 U.S.C. 841(a)(1) and possession of a
firearm during the commission of a drug trafficking crime in
violation of 18 U.S.C. 924(c). Defendant also waived
indictment and pleaded guilty to a one-count information
charging him with possession with intent to distribute
cocaine and aiding and abetting in the commission of that
crime in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.
2. The district court sentenced defendant to two concurrent
terms of imprisonment of 24 months on the drug convictions
and a consecutive term of imprisonment of 24 months on the
firearms conviction for a total of 48 months. Defendant
raises two issues on appeal.
1. The Right of Allocution. Prior to imposing ________________________
sentence, a district court must "address the defendant
personally and determine if the defendant wishes to make a
statement and to present any information in mitigation of the
sentence." Fed. R. Crim. P. 32(a)(1)(C). To meet this
requirement, "the court, the prosecutor, and the defendant
must at the very least 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." United States v. de Alba Pagan, 33 _____________ _____________
F.3d 125, 129 (1st Cir. 1994).
Defendant claims that the district court asked him
whether he had anything to say regarding the weapons charge,
but failed to so inquire regarding the drug charges. Because
defendant did not object to this alleged failure at the time,
we review for plain error. See Fed. R. Crim. P. 52(b); ___
United States v. Olano, 113 S.Ct. 1770, 1776 (1993). At ______________ _____
sentencing, the following interchange took place.
THE COURT: Does your client wish to be
heard by way of allocution?
THE DEFENDANT: I don't know. On the gun
charge, the only reason I had the gun is
I've always liked guns and like he says,
I lost the clip for it and I brought it
in to Willey's that day and I didn't have
it for drug purposes.
You know, I grew up, my stepfather's in
the military. I used to go out and shoot
skeet with him. And my real father, we
always went hunting. I just always
had a liking for guns. But I didn't have
the gun for, you know, drug purposes.
THE COURT: All right. Is there anything
else you want to say to the court?
THE DEFENDANT: No.
Sentencing Transcript, at 7. Defendant points out that the
discussion preceding his statement mostly was confined to the
effect of the gun charge on the guideline range. Thus, he
goes on, he "reasonably believed" that he was limited to
addressing the possession of a weapon.
We disagree. As defendant concedes, the court did
not limit its inquiry to the gun charge. In fact, the court
explicitly asked defendant after he had spoken about his
possession of the weapon whether he had anything else to add.
The cases cited by defendant are not on point. In United ______
-3-
States v. Medrano, 986 F.2d 299 (9th Cir. 1993), the district ______ _______
court never addressed the defendant to see if he wished to _____
speak and the government so conceded. Id. at 302. In United ___ ______
States v. Cole, 27 F.3d 996 (4th Cir. 1994), the district ______ ____
court did not ask the defendant to speak until after imposing _____
sentence. Id. at 998. ___
2. The Downward Departure Under the Sentencing ______________________________________________
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Related
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. McAndrews
12 F.3d 273 (First Circuit, 1993)
United States v. Dana Pighetti
898 F.2d 3 (First Circuit, 1990)
United States v. Abel A. Mariano, Jr., United States of America v. Barry Butterworth
983 F.2d 1150 (First Circuit, 1993)
United States v. Hector Medrano, United States of America v. Hector Medrano
986 F.2d 299 (Ninth Circuit, 1993)
United States v. William Jay Cole
27 F.3d 996 (Fourth Circuit, 1994)