794 F.3d 1004
8th Cir.2015Background
- Howard Fleetwood admitted via counsel violating supervised-release conditions for failing to register as a sex offender under 18 U.S.C. § 2250.
- The district court revoked Fleetwood’s supervised release and sentenced him to 12 months’ imprisonment concurrent with his state sentence (as requested by Fleetwood).
- At the revocation hearing the court addressed Fleetwood only to advise him of his right to appeal; Fleetwood did not speak.
- Fleetwood appealed, arguing the court violated Federal Rule of Criminal Procedure 32.1(b)(2)(E) by not personally offering him an opportunity to make a statement (allocution) before sentencing.
- The parties agreed the claim was unpreserved, so the court reviewed for plain error (Rule 52(b)).
- The Eighth Circuit assumed without deciding that Rule 32.1(b)(2)(E) may require personal allocution, but affirmed because Fleetwood failed to show prejudice or a reasonable probability of a lighter sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 32.1(b)(2)(E) requires the district court to personally address the defendant and offer allocution before imposing a revocation sentence | Fleetwood: Rule 32.1(b)(2)(E) should be read like other circuits to require the court to personally ask the defendant if he wants to speak prior to sentencing | Government/District Court: Counsel’s presentation sufficed; court’s failure to address Fleetwood personally (if error) was not preserved and not plain error | Court assumed (without deciding) personal-address requirement might exist but did not reach the issue definitively; no reversible error affirmed |
| Whether plain-error review permits relief when the defendant did not show prejudice from the alleged allocution omission | Fleetwood: The omission violated his Rule 32.1(b)(2)(E) right and merits relief even on plain-error review | Government: Even if error, Fleetwood must show a reasonable probability of a lighter sentence; he offered nothing he would have said | Held: No plain error — Fleetwood failed to show his substantial rights were affected or a reasonable probability of a lighter sentence |
| Whether counsel’s statements at the revocation hearing mitigated any allocution-related harm | Fleetwood: Personal allocution might have added mitigating information not presented by counsel | Government: Counsel requested concurrent sentence and residential re-entry placement and did not seek a lesser federal term; these requests reflect the substance of mitigation | Held: Counsel’s statements effectively covered mitigation; sentence matched requests, so no prejudice shown |
Key Cases Cited
- United States v. Robertson, 537 F.3d 859 (8th Cir. 2008) (considered Rule 32.1(b)(2)(E) and assumed without deciding a personal-address requirement)
- United States v. Daniels, 760 F.3d 920 (9th Cir. 2014) (Rule 32.1(b)(2)(E) requires the court to personally ask the defendant if he wants to speak)
- United States v. Gonzalez, 529 F.3d 94 (2d Cir. 2008) (reading Rule 32.1(b)(2)(E) to require personal allocution)
- United States v. Pitre, 504 F.3d 657 (7th Cir. 2007) (same)
- United States v. Rausch, 638 F.3d 1296 (10th Cir. 2011) (noting Rule 32.1 does not expressly require personal address and declining to find plain error)
- Green v. United States, 365 U.S. 301 (1961) (discusses allocution as a best practice and historical right to speak before sentencing)
- United States v. Molnar, 590 F.3d 912 (8th Cir. 2010) (plain-error prejudice requires a reasonable probability of a lighter sentence)
- United States v. Magwood, 445 F.3d 826 (5th Cir. 2006) (denying plain-error relief where defendant failed to state what he would have said in allocution)