782 F.3d 1110
9th Cir.2015Background
- Urrutia-Contreras was originally sentenced in 2011 for illegal re-entry; the Guideline calculation erroneously treated a prior misdemeanor as an aggravated felony, producing a 15-month sentence plus 3 years supervised release.
- The Guideline error was discovered after he completed that custody term and was on supervised release; he later attempted illegal re-entry in 2013 and pleaded guilty to attempted re-entry in the Southern District of California.
- At a March 5, 2014 hearing the district court sentenced him to 12 months for attempted re-entry and separately imposed a 15-month consecutive sentence for violation of supervised release (total 27 months).
- During the revocation/sentencing proceeding the court heard defense argument and allocution but did not solicit or invite a sentencing statement from the government; defense counsel objected post-sentence on procedural grounds.
- The Ninth Circuit vacated the 15-month consecutive revocation sentence and remanded, holding the court erred by failing to provide the government an opportunity to speak at the revocation sentencing and that the error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 32.1 (revocation proceedings) requires the court to give the government an opportunity to speak at revocation sentencing | Government: not required by Rule 32.1 (silent) | Urrutia: Rule 32(i)(4)(A)(iii) should fill the gap—government must be given an opportunity equivalent to defense | Court: Apply Rule 32 to fill gap in Rule 32.1; district court must solicit government's position at revocation sentencing |
| Whether the district court’s failure to solicit the government’s position was harmless error | Government: no prejudice; court’s decision stands | Urrutia: prejudice because district had discretion to impose a lower sentence and government support might have affected outcome | Court: Error not harmless; vacated and remanded for resentencing |
Key Cases Cited
- United States v. Whitlock, 639 F.3d 935 (9th Cir. 2011) (use Rule 32 to "fill the gap" in Rule 32.1 for revocation proceedings)
- United States v. Carper, 24 F.3d 1157 (9th Cir. 1994) (recognized defendant’s right to allocution at revocation; precedent for filling gaps in Rule 32.1)
- United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) (failure to permit government to speak at sentencing is plain error)
- United States v. Gunning, 401 F.3d 1145 (9th Cir. 2005) (prejudice where denial of speaking opportunity affected a district court’s discretion to impose a lower sentence)
- Rita v. United States, 551 U.S. 338 (2007) (sentencing judges must set forth reasons showing consideration of parties’ arguments)
- Gall v. United States, 552 U.S. 38 (2007) (district court should give both parties opportunity to argue and consider § 3553(a) factors)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (district court must consider parties’ arguments and § 3553(a) factors when sentencing)