United States v. Lawrence Ward, 2013 U.S. App. LEXIS 20782

Background

Ward, a former Wharton professor, was arrested in 2006 in possession of child pornography and later linked to photos/videos of sexual acts with minors (J.D. and R.D.) produced in Brazil; he also sought a U.S. visa for one minor and made false statements during the visa process.
He pleaded guilty in the Eastern District of Virginia (2007) and later to five counts in the Eastern District of Pennsylvania (2008); initially sentenced to 300 months and a $100,000 fine (converted from intended restitution), but the court failed to specify sentences per count.
This Court vacated and remanded for resentencing because the district court had not imposed separate sentences for each count and provided inadequate reasons for the fine; the case returned for resentencing in 2012.
At resentencing the judge asked Ward to allocute and, over defense objection, required that his allocution be given under oath; Ward spoke and the court again imposed 300 months but increased the fine to $250,000 and ordered no contact with minors.
Ward appealed, raising seven challenges including (inter alia) the right to unsworn allocution under Fed. R. Crim. P. 32, vindictive increase of the fine, Guidelines enhancements, adequacy of sentencing explanation, substantive and procedural reasonableness, and failure to order restitution.

Issues

Issue	Ward's Argument	Government/District Court Argument	Held
Whether Rule 32 guarantees a right to unsworn allocution	Rule 32 secures a historic right to make an unsworn personal allocution; requiring oath violated that right	Rule 32 only requires the court to address the defendant and permit a statement; judge may impose oath at discretion	No right to unsworn allocution; district court may require oath
Whether increasing the fine from $100,000 to $250,000 on remand was vindictive	Increase was retaliatory for successful appeal (Due Process/Pearce)	Court corrected earlier inadequate explanation, considered Guidelines and ability to pay, and stated lack of vindictiveness	No vindictiveness; increase justified and not punitive for appeal success
Whether evidence supported a five-level enhancement under U.S.S.G. § 4B1.5(b)(1) for a pattern of prohibited sexual conduct	Enhancement unsupported by record	District court considered prior findings and new evidence (production of photos/videos, multiple victims)	Enhancement upheld; ample evidence of pattern
Whether sentencing explanation and reasonableness were deficient (3553(c)(1), procedural/substantive)	Court failed to explain choice of 300 months within wide Guidelines range and didn't properly consider mitigating factors; sentence excessive given health/age	Court gave concrete reasons (seriousness, risk of reoffense, deterrence), addressed mitigation requests, and imposed within-Guidelines term	300-month sentence procedurally and substantively reasonable; 3553(c)(1) satisfied
Whether court erred by not ordering restitution under 18 U.S.C. § 2259	Failure to order restitution mandates remand	Ward lacked standing to challenge restitution; court properly imposed fine after considering factors	No relief; Ward lacks standing and forfeited objection at sentencing

Key Cases Cited

Green v. United States, 365 U.S. 301 (1961) (historical roots and purpose of allocution)
Adams v. United States, 252 F.3d 276 (3d Cir. 2001) (history of allocution and Rule 32 analysis)
Blackledge v. Allison, 431 U.S. 63 (1977) (solemn declarations in open court carry presumption of verity)
North Carolina v. Pearce, 395 U.S. 711 (1969) (due process and presumption of vindictiveness on resentencing)
Alabama v. Smith, 490 U.S. 794 (1989) (limits on presumption of vindictiveness; reasonable likelihood standard)
Rita v. United States, 551 U.S. 338 (2007) (standards for appellate review of sentencing explanations and reasoned basis requirement)
United States v. Gricco, 277 F.3d 339 (3d Cir. 2002) (§3553(c)(1) explanation requirements)