Fifth Circuit: Plain Error Requiring Resentencing Where Court Didn’t Give Defendant Chance to Speak at Sentencing Hearing and Prospective Allocution Provided Added Details to Lead Reasonable Judge to Reconsider Harsh Sentence
by Michael Berk
The U.S. Court of Appeals for the Fifth Circuit remanded Jose Santos Figueroa-Coello’s case for resentencing, holding that the district court’s violation of Rule 32 of the Federal Rules of Criminal Procedure amounted to reversible plain error.
At this defendant’s sentencing hearing, counsel briefly mentioned several points in a bid for leniency, but the judge never asked Figueroa-Coello himself if he had anything to say before sentencing him to the top of his Guidelines range, violating the defendant’s right to “a specific and unequivocal opportunity to speak.” This right is not absolute, however. Since counsel did not object, Figueroa-Coello had to meet the demanding plain-error standard set forth in Puckett v. United States, 556 U.S. 129 (2009), on direct appeal.
The Court explained Puckett’s four-prong test as follows: “the appellant must show the lower court’s action (or lack thereof) (1) deviated from unwaived and established legal rules, (2) was ‘clear or obvious, rather than subject to reasonable dispute,’ and (3) affected his substantial rights. [Puckett] This court then has discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.”
The Government conceded that the judge deviated from an established legal principle. Rule 32(i)(4)(A)(ii) requires federal sentencing courts to address each defendant personally to provide a chance to speak “on any subject of his choosing prior to the imposition of sentence.” This deviation was “clear or obvious, rather than subject to reasonable dispute.” And, since the defendant was actually sentenced to the top of the advisory range, the Fifth Circuit presumed prejudice to his substantial rights—the record demonstrated an “opportunity” for the omission “to have played a role in the district court’s sentencing decision.”
Thus, the Court’s opinion focused on the fourth and final prong of the plain-error standard. The plain-error rule does not mandate automatic correction but only provides for “discretionary relief.” The Fifth Circuit will only right a wrong under this rule if it is convinced that the result of the error is so “unjust” as to comprise a “complete miscarriage of justice,” casting the criminal justice system in a disreputable light. United States v. Magwood, 445 F.3d 826 (5th Cir. 2006).
The essential requirement in the Fifth Circuit’s miscarriage of justice inquiry is some “objective basis” to support a finding that the district court “would probably have changed its mind, had [the defendant] been allowed to speak.” Such a showing can be accomplished by the proffering on appeal of precisely “what he would have allocuted to that might have mitigated his sentence,” according to the Court.
A generalized example of what a defendant “could have” expanded upon is unlikely to meet the standard for relief. The Court discussed several previous cases in which such “hypotheticals” were supplied without “specific facts or additional details” and where relief was denied. On the other hand, the Court explained that “a sufficiently detailed and specific description of mitigating facts to be offered at allocution will likely establish a need for remand.”
“On balance,” Figueroa-Coello’s prospective statements worked to erase any image of an “unrepentant” defendant with “statements of remorse and sincere willingness to change” and provided evidence supporting an inference that it was “unlikely that he will reoffend if granted a lighter sentence,” the Court observed. Thus, the Court was convinced that allocution by Figueroa-Coello would provide meaningful detail expanding on defense counsel’s brief argument at his sentencing hearing.
Accordingly, the Court reversed the judgment and remanded for resentencing so as to “ensure fairness.” See: United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019).
Writer’s note: The opinion is instructive in explaining when the failure to afford the defendant a personal opportunity to address the sentencing court may warrant discretionary relief.
Related legal case
United States v. Figueroa-Coello
|Cite||920 F.3d 260 (5th Cir. 2019)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|