All, we’ve covered the right to allocute before here on this newsletter but it keeps coming up in different ways. I wanted to talk about that a little bit and go over another thing that I have noticed in this case.
The Case History
Abney pled guilty to unlawful possession with intent to distribute 50 grams or more of cocaine base. He was released on personal recognizance pending sentencing. He was accused of failing to comply with the terms of that release. His bond was revoked and on August 2, 2010 he was sentenced to ten years of imprisonment and five years of supervised release.
The DC appellate court ordered resentencing on an earlier appeal because his counsel had been ineffective in failing to seek a continuance of the sentencing pending the signing of the Fair Sentencing Act of 2010. This would have applied to Abney and would have led to Abney receiving a mandatory minimum of five years instead of 10. On resentenicng he was sentenced to eight yeas in prison and five years of supervised release.
Abney was released from prison in 2016. He was recommitted twice for failure to comply with the terms of his supervised release. His second revocation proceeding is at issue here. He was accused of failing to appear regularly for meetings with his probation officer and for failing to reside at his mother’s home.
At the revocation hearing the government recommended that Abney serve four months in prison. Abney requested 6 months in a halfway house so he could continue working. The court announced that they would revoke Abney’s supervised release and impose a sentence of six months imprisonment, two months in a halfway house and eighteen months of supervised release. As the court was specifying the terms of the sentence Abney asked “May I say something?”
The following exchange happened (based on the appellate court’s reporting of the record):
District Court: I’m not done (completion of the imposition of the sentence, discussion of details with probation officer and attorneys). Now Mr. Abney, did you want to say something?
Abney: Yes, [statements indicating that he had not violated his supervised release].
DC: Are you done?
Abney: No, I’m not done [statement that he did not understand how the probation officer could pop by whenever she wanted when the terms of his probation requiring only that he meet with her once a month].
DC: [Your failure to keep in touch with the probation officer violated your terms of supervised release].
Abney: [I’m trying to get a new judge and a new probation officer. Going to jail is not helping my situation. It is going to make it worse. I’m trying to get into a halfway house].
DC: [You can get into a halfway house but you’re going to serve six months]
Abney: [You keep sending me to jail. It’s not working. I got two jobs right now so why am I going to jail? This is not helping my situation.]
DC: [Talk to your counsel]
Abney: [“I’m talking to you. You’re doing it. You’re sending me to jail.”]
[This went on for a while]
Abney appealed asking for resentencing based on the fact that the district court denied his ability to allocute before imposition of the sentence. Abney also asked for a different edge for reentencing. The government conceded that the district court erred re: allocution but that Abney did not preserve his claim in the district court.
What is Allocution?
Allocution is when a court invites a defendant to speak before the court imposes a sentence. The right to allocute exists on the initial sentence or on violation of conditions of supervised release. The DC Appeals court noted that several circuits have held that reversal is automatic.
Abney Preserved his claim to Allocute.
The court held that Abney’s request to speak was enough to preserve his allocution claim. The court noted that “Rule 51(b) provides that ‘[a] party may preserve a claim of error by informing the court … of  the action the party wishes the court to take, or  the party’s objection to the court’s action and the grounds for that objection.’” The court also noted Holguin-Hernandez vs. United States: “By ‘informing the court’ of the ‘action’ he ‘wishes the court to take,’ a party ordinarily brings to the court’s attention his objection to a contrary decision.”
Abney was not required to make further exceptions to the district court’s rulings after that, as noted on Holguin-Hernandez: “After a defendant tries unsuccessfully to be heard at sentencing, it is unrealistic and even counterproductive to require him to “say, in effect, ‘now that you have imposed sentence, let me share some mitigating circumstances you may wish to consider in meting out my punishment.’” The DC Circuit noted that in many situations, district court judges have manuals and other memory prompts that remind the court of what to say and when. Those memory prompts should include a place where the court notes that a person has the right to allocute.
Here, the court began to impose the sentence without inviting allocution. “Given the context and timing of his request, it was evident Abney was invoking his right to ‘make a statement’ on his own behalf prior to sentencing.” There is no requirement of a defendant or their counsel “to invoke magic words or talismanic language” in asserting their right to allocute.
The District Court also erred in denying Abney’s right to Allocute.
The DC Circuit indicated that a criminal defendant must have been issued a personal invitation to speak prior to sentencing. This is in Federal Rule of Criminal Procedure 32(i)(4)(A)(II):
(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court must:
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence;
This right to allocute also applies to sentences imposed for revocation of supervised release just as it does to initial sentencing. See Federal Rule of Crim P. 32.1(B)(2)(E):
(2) Revocation Hearing. Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to:
(E) an opportunity to make a statement and present any information in mitigation.
The DC Circuit went on to state that “[t]he timing of the opportunity to allocute—before the sentence is imposed—is widely and appropriately recognized as essential both to the reality and public perception that the judge will fairly consider it before deciding on the sentence.” The court ruled that it was clear that the court did not invite Abney to speak before the court sentenced him to prison.
This Error Required Vacatur of the sentence even if not preserved
The court indicated that even if the error was not preserved properly here, that vacatur was appropriate. If that were the case then the court would have to apply a plain error analysis. As Under Rule 52(b) that means that the error must be clear, affect substantial rights, and impair the fairness, integrity, or public reputation of judicial proceedings.
Here the court ruled that the error is clear because it violates an absolutely clear legal norm. The right to presentence allocution “has deep roots in our jurisprudence, and there is no serious argument that it does not apply to the imposition of a sentence upon revocation of supervised release just as it does to initial sentencing.”
Further, the error was prejudicial. “To show prejudice on plain-error review, a defendant ordinarily must identify ‘a reasonable likelihood that the sentencing court’s obvious errors affected his sentence.” The court indicated that applied here:
“[T]he court had full discretion and sentenced Abney more harshly than even the government requested. Had the court asked Abney to speak and given due consideration to his statement before it decided upon the sentence, we believe there is a reasonable likelihood the sentence would have been more forbearing and better tailored to Abney’s circumstances.”
Finally, the court had to determine whether the court would need to exercise their discretion to correct the error, indicating that plain error only calls for correction where it would otherwise “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
Here, because imposing a criminal sentence is one of the most serious powers that a court can wield, the defendant’s right to speak and the court’s “duty to listen and give careful and serious consideration” show how serious the event is for the individual and the community. Even if the sentence remains unaffected, ensuring that the incarcerated person can make a statement “bolsters the integrity of the judicial process by having the judge listen to and thereby openly recognize the defendant as a fellow human being whose liberty is at stake.” The court also noted that the denial of allocution was threatening to the integrity of the judicial system when the sentence appears to be a “foregone conclusion.” The court determined that the integrity of the process demanded vacatur here.
The Request for Reassignment
The court denied the request for reassignment given that the district judge was seasoned and he previously recognized that Abney was absolutely entitled to have an opportunity to allocute. The Circuit court indicated that they expected that the judge would put his previously-expressed views out of his mind and approach Abney with a clean slate.
The court vacated the sentence and remanded the case back to the district court. United States vs. Abney, 957 F.3d 241 (2020), No. 19-3090
This case stands for a couple of things: First off, the right to allocute is in both the rules of procedure and in the case law as to both the original sentencing and any motions to revoke supervised release.
Second, I was interested to see that in previous court matters the DC Circuit had found that the failure to anticipate the passage of the Fair Sentencing Act of 2010 could be construed as ineffective assistance of counsel here. See United States v. Abney, 812 F.3d 1079, 1082 (D.C. Cir. 2016). On a hunch, I did some research to see if any courts had followed suit regarding the FIRST STEP Act of 2018 (as in found that in some way the failure to anticipate the passage of the FIRST STEP ACT of 2018 could constitute ineffective assistance of counsel). I found no such cases.
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