419 F. App'x 880
10th Cir.2011Background
- Nanez pleaded guilty to possession of a firearm by a felon and was sentenced to 30 months imprisonment and 3 years’ supervised release, which began March 24, 2009.
- An initial revocation petition filed August 27, 2009 (later amended) alleged violations including drinking in public, open container, failing drug tests, and failing to report; he admitted violations and received 43 days’ imprisonment (time served) and 2 years’ supervised release.
- A subsequent revocation petition on August 17, 2010 alleged possession of methamphetamine; Nanez admitted violation.
- At sentencing, the district court asked if it should proceed to sentence; defense counsel stated yes, and the court imposed a 24-month sentence with no additional supervised release.
- Counsel attempted to raise mitigating considerations (SSI, disability, State charges), but the court did not alter the sentence.
- Nanez appealed, arguing the district court violated his allocution rights; the court reviews for plain error since no objection was raised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to allocute before revocation sentencing requires reversal | Nanez argues allocution rights were violated under Rule 32.1. | The district court did not plainly err because Rule 32.1 governs revocation and ambiguity exists about must-address requirement. | Affirmed; no plain error |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (1961) (allocution rights precede sentencing under older Rule 32)
- Morrisey v. Brewer, 408 U.S. 471 (1972) (revocation hearings do not entail full prosecution rights)
- Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010) (Rule 32 vs 32.1 allocution timing remains disputed)
- Pablo, 625 F.3d 1285 (10th Cir. 2010) (plain error standard in allocution context)
- Robertson, 537 F.3d 859 (8th Cir. 2008) (allocution concerns in revocation align with 32.1)