UNITED STATES of America, Plaintiff-Appellee, v. Anthony Eugene DOYLE, Defendant-Appellant.
No. 14-12181
United States Court of Appeals, Eleventh Circuit.
(May 25, 2017)
1115
Kevin L. Butler, Allison Case, Sabra M. Barnett, James Tobia Gibson, Federal Public Defender, Birmingham, AL, Deanna Lee Oswald, Federal Public Defender-NAL, Huntsville, AL, for Defendant-Appellant.
Before ED CARNES, Chief Judge, JILL PRYOR, and RIPPLE,* Circuit Judges.
ED CARNES, Chief Judge:
In the pre-Booker era, we presumed prejudice from a district court‘s failure to ask a defendant if he had anything to say before sentence was pronounced, except in
I. FACTUAL AND PROCEDURAL BACKGROUND
Anthony Doyle pleaded guilty to possessing with intent to distribute more than fifty grams of a substance containing a detectable amount of cocaine base, a violation of
At the sentence hearing in December 2011, the district court determined that Doyle‘s adjusted offense level was 34 and that he had a criminal history category of VI. That yielded an advisory guidelines range of 262 to 327 months. The court asked Doyle‘s counsel if she had anything to say before the sentence was imposed, and she used the opportunity to argue (successfully, as it turned out) for a sentence at the low end of the advisory guidelines range.
The court did not, however, ask Doyle himself if he wished to make a statement (or allocute, as it is called), as sentencing courts are required to do. See
Thereafter Doyle filed a pro se motion to vacate, set aside, or correct his sentence under
Later the district court granted Doyle‘s
After the district court entered judgment on the
II. ANALYSIS
The sole question before us is whether Doyle‘s sentence must be vacated because his right to allocute, as embodied in
A. THE PLAIN ERROR RULE
Because Doyle did not object at the sentence hearing to the district court‘s denial of his right of allocution, we review only for plain error. Prouty, 303 F.3d at 1251. We will reverse a district court‘s decision under the plain error rule only if “there is: (1) error, (2) that is plain, and (3) that affects substantial rights,” and “if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotation marks omitted) (citing
As to the first requirement, the district court‘s failure to address Doyle personally about whether he wished to make a statement to the court was error. See, e.g., Prouty, 303 F.3d at 1252. And it was “plain,” which is the second requirement. Id. We have held that if the allocution error affects the defendant‘s substantial rights, which is the third requirement, the fourth one — that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings” — is also met. United States v. Perez, 661 F.3d 568, 586 (11th Cir. 2011).
So the result in this appeal comes down to whether the denial of Doyle‘s right of allocution “affect[ed]” his “substantial rights.” Rodriguez, 398 F.3d at 1298. If it did, we will reverse his sentence under the plain error rule; if it did not, we will affirm his sentence. See id. An error affects a defendant‘s substantial rights where it prejudiced him by “affect[ing] the outcome of the district court proceedings.” Id. at 1299. Almost always the party who failed to object to the error has the burden of proving that he was prejudiced by it. See id. But not always.
Before the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Sentencing Guidelines were mandatory, “impos[ing] binding requirements on all sentencing judges.” Id. at 233, 125 S.Ct. at 749-50. Under the mandatory guidelines regime:
A court could impose a sentence outside the applicable guidelines range only if it found the existence of an aggravating or mitigating circumstance “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” In making such a finding, a sentencing court could consider only the guidelines themselves and the policy statements and official commentaries of the Sentencing Commission. . . . [D]epartures on this basis were rarely available because “[i]n most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible.”
United States v. Irey, 612 F.3d 1160, 1181-82 (11th Cir. 2010) (en banc) (citations omitted) (quoting Booker, 543 U.S. at 234, 125 S.Ct. at 750).
In the mandatory guidelines era, this Court‘s allocution error rule was that “prejudice must be found if a defendant” was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Prouty, 303 F.3d at 1252-53. That meant that where a defendant was denied the right to allocute and where he “did not receive the lowest sentence available within the applicable [mandatory] guideline[s] range,” we would presume prejudice for the purposes of the plain error rule‘s third requirement. Id.
Presuming prejudice in denial of allocution cases where there was room at the bottom of the guidelines range was an exception to the strong, general rule that a party who failed to object must prove that the error prejudiced him. See, e.g., Rodriguez, 398 F.3d at 1299. We gave two reasons for presuming prejudice in those circumstances. First, we said that proving prejudice from a failure to allocute would be nearly impossible “because the impact of the omission on a [judge‘s] discretionary [sentencing] decision is usually enormously difficult to ascertain.” Prouty, 303 F.3d at 1253 (quotation marks omitted). Second, we said that the right to allocute had “symbolic meaning that len[t] legitimacy to the sentencing process” and “maximiz[ed] the perceived equity of the process.” Id. at 1253. We have neither the need nor the inclination to question that reasoning because under the prior panel precedent rule we are bound to follow prior decisions regardless of our view of their correctness. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc).
The flipside of, or exception to, our pre-Booker rule that prejudice should be presumed for allocution violations where the sentence left some bottom side room in the guidelines range was that prejudice should not be presumed where the sentence rested on the bottom of range. See, e.g., Quintana, 300 F.3d at 1232 (holding, in a pre-Booker denial of allocution case, that reversal was inappropriate because the defendant was sentenced to the bottom of the range, which was the lowest term of imprisonment permissible under the guidelines). The premise of that exception was that in the mandatory guidelines era there was virtually no possibility that the defendant could talk the judge into a lower sentence than the one at the bottom of the guidelines range, a range that penned in the judge‘s discretion. Before Booker the bottom was the true bottom and was as low as the sentence could go, barring some departure, which rarely occurred.
Despite the sea change effected by Booker a dozen years ago, this Court‘s case law on whether a defendant has to prove prejudice from the denial of allocution has neither ebbed nor flowed. Our United States v. Perez case involved a post-Booker sentence hearing in which the district court failed to afford the defendant his right of allocution. 661 F.3d at 575, 583. We reaffirmed the presumption that “the denial of a defendant‘s right to allocute [is] prejudicial whenever the possibility of a lower sentence exists.” Id. at 586. And because the district court had sentenced the defendant above the bottom of his advisory guidelines range, we presumed prejudice and held that denying him his right of allocution affected his substantial rights. Id. The Perez decision shows that the presumption of prejudice in denial of allocution cases is still the rule when a defendant is not sentenced at the bottom of his guidelines range, and that makes sense because Booker did nothing to affect the rationale of that aspect of our rule. The Perez decision did not, however, present the issue of whether Booker affected the exception under which prejudice should not be presumed from an allocution error where the defendant was sentenced at the bottom of his guidelines range. This case does present that issue.
C. THE END OF THE EXCEPTION FOR BOTTOM-OF-THE-RANGE SENTENCES
Doyle is entitled to a presumption of prejudice. As we have discussed, we presume prejudice in the denial of allocution context “when the possibility of a lower sentence exist[s].” Prouty, 303 F.3d at 1252. Because the sentencing guidelines are now advisory, in most cases a lower sentence will be possible even where the defendant is sentenced at the bottom of his advisory guidelines range. The logic that underpinned Quintana and other of our pre-Booker decisions rejecting a presumption of prejudice in bottom-of-the-range cases was dependent on the premise that the guidelines were mandatory and the bottom of a range was as far low as a sentence could go, absent extraordinary circumstances. See 300 F.3d at 1232.
Because Booker knocked out that premise, the conclusion that rested upon it can
That is not to say that we must presume prejudice in one hundred percent of denial of allocution cases. To take one example, if a defendant is sentenced to the statutory mandatory minimum sentence, there should be no presumption of prejudice. But this is not a mandatory minimum sentence case. The district court could have varied downward from the sentence it imposed if convinced by Doyle during allocution to do so. Because, as we have discussed, the other three requirements of the plain error rule have been met here, we will vacate Doyle‘s sentence and remand for resentencing.
III. THE REMEDY
This is a Phillips-procedure, belated direct appeal from Doyle‘s original sentencing. He is entitled to an opportunity to allocute and have the court resentence him after he says what he wishes to say to the judge. Because his ineffective assistance of counsel claim was rejected in all other respects, however, Doyle is not entitled to an entirely new sentencing proceeding. Nor is he entitled to reassert or reargue any of his objections to the PSR or take steps that his former counsel could have, but did not, take before and during his original sentence hearing, such as filing objections to his PSR or filing a new sentencing memorandum. See United States v. Rogers, 848 F.2d 166, 166-67, 169 (11th Cir. 1988) (holding that a defendant who was granted resentencing because of denial of right to allocute was not entitled to raise new objections to the PSR); see also United States v. Willis, 649 F.3d 1248, 1255-56 (11th Cir. 2011) (rejecting the argument that a district court must allow a defendant to “relitigate all issues related to [his] sentence” at resentencing).
The effect of our decision today is to return Doyle to the position he was in on the day of his original sentence hearing in 2011, with the same record that was before the sentencing court at that time. There are to be only two differences this time. First, he must be allowed to allocute. Second, under Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the “district court at resentencing may consider evidence of the defendant‘s postsentencing rehabilitation and . . . such evidence may, in appropriate cases, support a downward variance from” Doyle‘s advisory guidelines range. Id. at 481, 131 S.Ct. at 1236 (emphasis added). That‘s a double “may” holding that leaves what consideration, if any, to give to Doyle‘s post-sentencing rehabilitation, if any, up to the district court.
VACATED AND REMANDED.