United States v. Bryan Pittsinger
2017 U.S. App. LEXIS 21259
| 5th Cir. | 2017Background
- Defendant Bryan K. Pittsinger pleaded guilty to sexually exploiting a minor under 18 U.S.C. § 2251(a); statutory range 15–30 years.
- PSR calculated a total offense level of 51, applied a 3‑level acceptance reduction, and treated offense level >43 as 43 for Guidelines, yielding Guidelines life sentence but capped at statutory maximum 360 months.
- Pittsinger moved for a downward variance under 18 U.S.C. § 3553(a). The district court stated a tentative denial, heard counsel’s argument, declined to let Pittsinger allocute at that moment, then denied the variance.
- After denying the variance, the court invited Pittsinger to speak; he apologized and asked for mercy. The court then imposed 360 months.
- Pittsinger appealed, arguing (1) the court erred by denying him the chance to allocute before ruling on the variance, and (2) the court improperly applied the 3‑level acceptance reduction to the pre‑adjusted offense level (51) rather than to the capped level (43).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of opportunity to allocute before ruling on variance violated Rule 32 | Pittsinger: counsel asked to let him address the court before ruling; denying allocution before the court ruled made his later allocution meaningless | Government: court’s tentative ruling did not foreclose consideration; court later invited defendant to speak on any topic before final imposition | Held: No reversible error. Claim reviewed for plain error and failed — court’s pre‑ruling statements were tentative and defendant had a meaningful opportunity to speak before sentence was imposed |
| Whether acceptance‑of‑responsibility reduction must be applied to capped offense level 43 rather than pre‑adjusted level 51 | Pittsinger: reduction should lower final (capped) offense level (i.e., 43→40) | Government: reduction may be applied to total offense level before the cap; existing precedent allows applying reduction to pre‑adjusted level | Held: No plain error. Precedent permits applying the 3‑level reduction to the pre‑adjusted total offense level rather than the capped 43 |
Key Cases Cited
- United States v. Magwood, 445 F.3d 826 (5th Cir. 2006) (district court must communicate unequivocally that defendant has right to allocute)
- United States v. Echegollen‑Barrueta, 195 F.3d 786 (5th Cir. 1999) (allocution opportunity must be clear and meaningful)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework for forfeited rights)
- United States v. Mendoza‑Lopez, 669 F.3d 1148 (10th Cir. 2012) (distinguishes tentative statements of intent from definitive pronouncements that foreclose meaningful allocution)
- United States v. Engle, 676 F.3d 405 (4th Cir. 2012) (district court may state rulings and still afford meaningful allocution if open to consideration)