United States v. Rausch
2011 U.S. App. LEXIS 6479
| 10th Cir. | 2011Background
- Rausch pleaded guilty to possessing child pornography in 2008 and received a substantial downward variance, resulting in time served plus lifetime supervised release with home detention, no computer use, and sex-offender treatment requirements.
- In 2010, a petition alleged violations of supervised release (pornography on pay-per-view, leaving home without permission, treatment noncompliance); at a preliminary hearing the court warned of prison if violations continued.
- At the May 13, 2010 revocation hearing, the court invited Rausch to speak; he apologized; the court imposed two years' imprisonment followed by lifetime supervised release, instead of imprisonment, under the parties’ agreement for an enhanced supervision condition.
- Two months later, a second petition alleged another violation; the court again found violation, revoked supervision, and sentenced Rausch to two years' imprisonment followed by life supervision.
- Rausch appealed, challenging (a) allocution rights at the revocation hearings, (b) substantive reasonableness of the two-year sentence, and (c) the lifetime supervised-release term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Allocution right at revocation: was it violated? | Rausch argues the court failed to address him personally to invite speaking. | Rausch asserts allocution was denied, violating Rule 32.1 and Green v. United States. | No reversible error; any error not plain and not affecting fairness; affirmed. |
| Plain-error standard applied to allocution issue | Allocution omission could be plain error affecting fairness. | Circuit split on personal address; could be plain error. | Court applied plain-error review but found no serious prejudice; affirmed. |
| Substantive reasonableness of two-year sentence | Sentence overly harsh given minor, nonintentional violations and health/history. | Court reasonably punished repeated violations after leniency and warnings. | Two-year sentence reasonable; within district court’s discretion. |
| Lifetime supervised release after prison term | Maximum supervised-release term should be life minus two years; issue of plain error. | Life minus two years conceptual; no practical prejudice shown. | No reversible error; no demonstrated prejudice. |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (1961) (personal invitation to speak before sentencing)
- Hill v. United States, 368 U.S. 424 (1962) (allocution denial not a fundamental defect)
- Pitre, 504 F.3d 657 (7th Cir. 2007) (allocution issue unlikely to affect fairness where warned previously)
- Carruth, 528 F.3d 845 (11th Cir. 2008) (allocation issue not reversible where prior warning given)
- Robertson, 537 F.3d 859 (8th Cir. 2008) (discusses Rule 32.1 vs. Rule 32; allocution issue not plain)
- Reyna, 358 F.3d 344 (5th Cir. 2004) (allocution issue not reversible given prior warnings)
- Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010) (allocution issues reviewed under plain-error; prejudice presumed in some circuits)
- Jarvi, 537 F.3d 1256 (10th Cir. 2008) (per se prejudicial error for allocution—not overturned here)