United States v. David Prouty

BARKETT, Before DUBINA *, District Judges, and Circuit HODGES Judge.

BARKETT, Judge: Circuit im- Prouty appeals David conspiracy to conviction of posed for his to access devices and use unauthorized access de- than fifteen such possess more 1029(b)(2), § of 18 vices in violation U.S.C. an access de- use of and for unauthorized 1029(a)(2). violation of 18 vice in U.S.C. first, district court’s He argues, alloeute him the to failure to afford court plain error where constitutes appli- high him the end of the sentenced Second, argues he range. guideline cable failing to court district erred restitution and his consider setting by delegating reverse. for restitution. schedule

BACKGROUND crimi pleaded guilty to two Prouty unauthorized arising out of his nal offenses card terminals employer’s of his credit use credit card restaurant customers’ to obtain sentencing, presen Prior to numbers. report prepared, investigation tence government Prouty and which both Caruso, Public Asst. Federal Michael T. for a moved objections. filed also Williams, Federal Defender, M. Kathleen pursuant to USSG departure downward Defender, Miami, FL, Defen- for Public sentencing hearing, At 5K2.0. dant-Appellant. objections and ruled on court a downward Prouty’s request for Schultz, denied Hirseh, R. Lauren Anne Lisa A. ruled on the After the departure. Miami, FL, Plaintiff-Appel- Fleischer, adjusted offense level objections, Prouty’s lee. * designation. ting by Hodges, U.S. District Wm. Terrell Honorable Florida, sit- District of Judge Middle for the under the sentencing guidelines was DISCUSSION which, for applicable history criminal 1. Allocution

category a sentencing range has of 37- 46 months. The court sentenced Prouty to right Allocution is the of the defen imprisonment. 46 months’ parties Both in dant to make a plea final on his own behalf this case agree that the court did not to the sentencer before the imposition of comply with Fed.R.Crim.P. Rule sentence. It is a right of origin, ancient 32(c)(3)(C), requires which the court Behrens, see United v. 162, States 375 U.S. afford the defendant an opportunity to al- 165, 295, 84 S.Ct. 11 (1963), L.Ed.2d 224 locute before sentence imposed.1 The 1689, and “as early as it was recognized parties agree also that Prouty did not that the court’s failure to ask the defen timely object to the court’s failure to com- dant if he had anything to say before ply with the rule. imposed required reversal.” v. States, Green United 301, 304, 365 U.S. In sentencing Prouty, the district court 653, (1961) 81 S.Ct. (Frank 5 L.Ed.2d 670 impose fine, did not because it found that furter, J., plurality opinion). As Justice Prouty did not have the financial Frankfurter explained the importance of fine, pay a but also there observed right: persuasive “The most counsel would be “substantial restitution.” The may not be speak able to for a defendant court then ordered restitu- as the might, defendant with halting elo tion in the amount $5,386,995.37, “due quence, speak for himself.” Id. Allocu payable and immediately.” Prouty object- tion is designed thus “to temper punish ed on the ground that he did not have the ment mercy with in appropriate cases, and means to pay the restitution immediately, to ensure that sentencing reflects individu and asked the court to set a reasonable alized circumstances.” United States v. payment schedule. The court denied Pagan, (1st Alba 125, 33 F.3d 129 Cir. request, “I will stating: leave that to the 1994) (citing Barnes, United States v. 948 discretion of the Probation Office or who- (7th 325, Cir.1991)). F.2d 328 Moreover, ever does that.” “allocution ‘has value in terms of maximiz ” ing perceived equity process.’ Barnes, 328). Id. (quoting 948 F.2d at STANDARD OF REVIEW We review the legality of a crimi right The protected allocution is nal sentence de novo. United States v. in the Federal Rules of Criminal Proce Tamayo, 1514, (11th 80 F.3d 1518 Cir. 32(c)(3)(C) dure. Rule provides that the 1994). However, a district court’s failure court, prior sentence, to imposing must to afford a defendant the right of allocu “address the defendant personally and de tion will be only reviewed plain error termine whether the defendant wishes to where the defendant did not timely object. amake present statement and to any in Id. at 1521. A restitution order will be formation in mitigation of the sentence.” reviewed de novo. United v. States Lom To find reversible error plain under the bardo, (1994). 526, 35 F.3d 527 standard, (1) error we must conclude that reject We argument the Government’s comply with the rule. directing lawyers comments suffices to

1252 (9th 1214, Cir.1993); (2) drano, F.3d 1219 occurred, plain, the error was an error Myers, v. 150 F.3d also United States see (3) substantial error affected Cir.1998) (5th (resentencing 463-65 Olano, v. 507 U.S. States United rights. right to always required where defendant’s 725, 732, 123 L.Ed.2d 113 S.Ct. violated); v. allocution is United States Mitchell, 146 F.3d (1993); (8th Cir.1990) Walker, 896 F.2d Cir.1998). (11th 1338, 1342 that, (same). These courts have reasoned and its the nature of the because of oc that error easily conclude if a de- prejudice must be found purpose, plain. that it was in this case and curred opportunity given not been fendant has 32(c)(3)(C) specifically re Because Rule possibility court when the speak to the to offer the defen the district court quires Adams, existed. 252 of a lower sentence allocute, the opportunity the dant at F.3d 287. a “clear” or do so was court’s failure to Olano, 507 at U.S. error. See “obvious” that, regard- government suggests The Mitchell, 1770; at 734, 146 F.3d 113 S.Ct. circuits, Prou- practice in other less of the prongs two of the the first 1342. Where by our own ty’s argument is foreclosed satisfied, the defen- rule are plain error v. precedent, citing circuit to United States demonstrating of the burden dant bears (11th Cir.2000), Gerrow, 831, 232 F.3d 834 “affected substantial plain that the error Ramsdale, 179 and to States v. United Olano, 734, 113 507 U.S. at S.Ct. rights.” (11th Cir.1999). 1320, find 1324 F.3d 52(a), Fed.R.Crim.P.); Rule (quoting 1770 misplaced. In reliance government’s the cases, Mitchell, In most 146 F.3d at 1343. Ramsdale, injustice we found no manifest must have been that the “error this means re during lack of allocution the out- It must have affected prejudicial: the defen- sentencing proceeding because proceedings.” come of the opportunity an given dant had been 743, Olano, 1770. at 113 S.Ct. 507 U.S. hearing, original sentencing at his allocute elements are demon- all of these Where resentencing was limit- and the remand strated, cor- have discretion to order we at 1324. specific ed to issues. 179 F.3d “in those error and will do so rection of the governs the outcome Nothing Ramsdale of miscarriage in which a circumstances to allocution at an right of a denial of the result.” See id. at justice would otherwise Gerrow, In sentencing hearing. original Mitchell, 1770; at 736, 146 F.3d 113 S.Ct. sentencing court had we noted already its intention to sen- announced at bottom of the tence the defendant argument that the denial of Prouty’s range, and observed applicable guideline is reversible error of allocution right anything offer that the defendant did not afforded the was not where the defendant in a have resulted sentence “could court did to allocute and the opportunity guideline end lower than lowest of the lowest sentence under impose added). (emphasis range.” 232 F.3d at 834 support in the decisions guidelines finds indicate what therefore did not Genvw question. addressed the all circuits to have re- happen when the defendant should Adams, 276, v. 252 F.3d See United not at the lowest that is ceives (3d Cir.2001); Rias 287 States v. United guideline range. end (6th cos-Suarez, F.3d 627 Cir. 73 Cole, v. Rodri- 1996); Similarly, 27 F.3d United States United States (11th (4th F.3d 698 Cir. Cir.1994); guez-Velasquez, 132 States v. Me- 999

1253 1998), we concluded that there no give a defendant the opportunity to speak injustice” court directly “manifest because the when it might defendant affect his sentence is manifestly unjust. objected had not More- when he given “was over, the right of allocution is “the type of possible lowest sentence within the Guide- important safeguard that helps assure the added). lines.” 132 (emphasis F.Bd at 700 fairness, and hence legitimacy, of the sen- Quintana, See also United States v. tencing process.” Adams, 252 F.3d at 288 (11th (likewise Cir.2002), F.3d 1227 finding Green, (citing 304-05, 365 U.S. at 81 S.Ct. injustice no manifest because district court 653); see also United Myers, States v. imposed the imprisonment “lowest term of (5th Cir.1998) F.3d 463-64 (observing permissible under the guidelines”). Our that the practice allowing defendant to do not question cases address the of mani- speak before sentencing has both function- injustice fest when the defendant did not al symbolic meaning that lends legiti- receive the lowest sentence available with- macy to the sentencing process); Alba Pa- in the applicable guideline range, the issue gan, 33 at F.3d (noting which is squarely presented here and of allocution “has value terms of maxim- which we now consider. izing the perceived equity process”). Because plays allocution a central role As the observed, First Circuit has a the sentencing process, the denial of this defendant cannot easily prej- demonstrate right is “not the sort of or ‘isolated]’ ‘ab- udice in the context of allocution because stract’ error that does impact not the ‘fair- impact “the of the omission on a [judge’s] ness, integrity public or reputation judi- of ” discretionary [sentencing] decision is usu- cial Adams, proceedings.’ 252 F.3d at n ally enormously difficult to ascertain.” 288 (quoting United v. Young, 470 Alba Pagan, 15-16, at 130. U.S. F.3d As the 105 S.Ct. Court 84 L.Ed.2d 1 (1985)). Green, Accordingly, we explained conclude that right of allocution district court committed reversible error premised is on the idea that “[t]he most when it failed to comply with Rule persuasive may counsel not be able to 32(c)(3)(C) and Prouty did not receive the speak for a defendant as the defendant possible lowest sentence appli- within the might, with halting eloquence, speak.for guideline cable range. Green, himself.” 365 U.S. at 81 S.Ct. 653. The Adams court elaborated on this 2. Restitution “Thus, point: denying [the his defendant] of allocution was tantamount deny- to Prouty argues next that the district him ing persuasive his most and court eloquent failing erred to consider his finan- cial condition advocate. And when it him ordered to pay district court was like- restitution immediately, alternatively, or wise denied the opportunity to into take that the court improperly delegat- consideration [the unique per- defendant’s] ed the setting payment schedule to spective. on the circumstances relevant to the Probation Office.2 sentence, his delivered his own voice.” Adams, 252 F.3d 288. at Like our sister The district court Prouty pay ordered to circuits, persuaded we are failing that to $5,386,995.37, restitution in the amount of parties agree The 3663A(a)(l) that the district (b). did court U.S.C. and The court’s have discretion as to whether impose to a discretion was limited to the timetable order, restitution or as to the amount. See repayment. clearly Prouty ordered immediately.” The PSI district court payable

“due and immediately and did not only in his restitution Prouty had $26 that indicated $4,712 assets, office account, authority probation and to the delegate no savings schedule, if there were but none- court asked to establish a After the debt. sentence, that, practical the record a mat- objections recognized theless as any following exchange: ter, arrange for probation reveals the office would paid time. Prou- the restitution to be over only The COUNSEL]: [DEFENSE court re- ty argues that the district objection I have to the Court’s other circum- to consider his financial quired that Your Honor ordered how the restitution determining stances paid immediately. be restitution the court itself paid would be have the means doesn’t Mr. any payment schedule. must establish immediately. million restitution pay a $5 impose ask Court So we would Mandatory Restitution Act The Victims payment schedule. reasonable (“MVRA”) “A provides: restitution order single, make a may direct the defendant to I that to the will leave THE COURT: payments at lump-sum payment, partial or of the Probation Office discretion intervals, payments, in-kind or specified that. whoever does specified at inter payments combination of your province? fall within Does that payments.” and in-kind 18 U.S.C. vals When he is OFFICER]: [PROBATION 3664(f)(3)(A). also The MVRA states Honor, released, out they Your do work shall, pursuant to section “the with defendants. payment plans 3572, specify in the restitution order the I don’t think COUNSEL]: [DEFENSE which, in accord manner and the schedule I think allows it to be left. the statute which, paid.” to be ing to the restitution is says, [sic] the statute added). 3664(f)(2) (emphasis § 18 U.S.C. provides in turn that the “[i]f Section 3572 what. you THE I will tell He COURT: permits other than [restitution] order[] the pay pay. what he could That’s will payment, length the of time immediate reality it.of payments which will be over scheduled That’s fair. COUNSEL]: [DEFENSE ” the court .... by made shall be set out just hanging I don’t want an order 3572(d)(2).3 U.S.C. judg- in of some there that he is default obviously He will ment or some order. Thus, those of our sister circuits to pay. what he could question have uni have considered the formly setting that a schedule for a Thus, in the held uncertainty there is some pay restitution or fines is a prisoner what the district court in- record about MVRA, view, the judicial the core function under government’s tended. In the contrast, scheduling delegation repayment to the predecessor the to the In statute MVRA, by providing length probation office that "the the Victims and Witness Protection 1982, payments will provided court could of time over which scheduled Act of that the ...18 "require be made shall be set the court that defendant make restitution [the] 3572(d)(2). language period new has specified specified U.S.C. This ... within a or installments,” ambiguity might expressly any have exist- but did not state that removed regarding repayment predecessor statute the the terms ed in the the court must set contrast, authority delegating deter- By plain permissibility of the restitution order. language expressly precludes mine the installment schedule. of the MVRA and that may the district court not dele- consider whether was capable of gate discretion to set schedule. See paying the full restitution sum immediate- McGlothlin, States v. United 249 F.3d ly. (8th Cir.2001) (MVRA

784-85 requires the district court to set a payment detailed CONCLUSION schedule at sentencing); United Coates, (3d Cir.1999) 178 F.3d 684-85 For the reasons, foregoing we vacate the (explaining that Constitution and MVRA sentence and remand for resentencing con- forbid district delegate court to authority sistent opinion. with this payment schedule);4 to set cf. VACATED AND REMANDED. (2d States v. Hayes, 135 F.3d Cir.1998) (crediting district court with HODGES, District Judge, concurring:

recognizing, regardless of whether MVRA or predecessor governed, statute it I concur Judge opinion Barkett’s schedule). fix must itself restitution court, but write separately to make agree with reading this of the express two brief observations. language of the and hold statute that the First, the sentencing precludes hearing MVRA district court from one, lengthy extending into the delegating evening duties expressly delineated after the taking of evidence and argu- statute. ment of counsel on points, several and it is Moreover, if the statute clear absolutely that the bypassing does permit delegation probation office, personal defendant’s allocution was an in- we cannot endorse a oversight by restitution advertent order re all of partici- quiring pants “immediate” including lawyers with in an for both sides. fact, formal In probation judge understanding specifically inquired of office shall set repayment counsel schedule. whether Ob anything else needed to viously, the availability of be such an done and he option a negative received re- in practice would sponse. defeat the statutory re quirement that the court any establish in Second, I emphasize would that United

stallment schedule. Accordingly, we con Jones, (11th States v. 289 F.3d 1260 Cir. clude that the district court’s restitution 2002), distinguishable is because there the improper. order was sentencing judge clearly intended that the

In light of our conclusion that the dis- order of restitution be immediately, due trict court erred in delegating the repay- and that justified was found to be by the probation office, ment schedule to the we defendant’s financial to as dis need not reach Prouty’s alternative conten- closed in presentence the report. There tion that restitution court’s order is was no need for a payment schedule. light infirm in purported of a Here, contrast, failure to by although judge ini- Jones, 4. In United States v. ty F.3d 1260 to payment make immediate of restitution. (11th Cir.2002), we declined Jones, to follow See 289 F.3d at Our 1266. decision in reasoning of Coates as to whether the MVRA Jones did not consider opinion’s the Coates a forbids relying upon court from analysis of whether the may district court findings uncontested aof Presentence Investi- delegate authority payment to set a schedule. gation Report assessing a defendant's abili- the order of restitution that tially declared Bryant TROVILLE, S. Plaintiff- immediately, payable and be due

should Appellant, effectively recog- remarks subsequent his apparent finan- defendant’s nized that the payment necessitated cial distress Greg VENZ, Sexually Director Violent schedule, delegated he then a task Program, Briodi, Predator Robert Ex step It was the latter probation officer. Director, ecutive Martin Treatment and, forecloses; my to that the statute Center, Black, Warden, James Former mind, entirely prohibition illogical that is Bay Facility, Correctional Law South many that in cases— when one considers Greer, rence Present Warden South presently has no dis- where the defendant Bay Facility, Tuskey, Correctional G. term lengthy assets and cernable Warden, Bay Assistant South Correc imposed will be lit- commitment —there al., Facility, Defendants-Ap tional et upon which to fash- tle or no factual basis pellees. any payment ion a reasoned schedule of delegate oversight pay- To kind. No. 01-11664. officer, probation protocol ment Appeals, United States Court of adjustment over time and amenable to Eleventh Circuit. judicial subject always approval, would I perfect good acknowledge, make sense. Aug. however, statutory scheme also supplies apparent one solution to this (a)

problem by providing 18 USC 3664(f)(3)(B) may that the court direct (b) payments;” periodic

“nominal 3664(k)

providing 18 USC schedule, may “adjust full, payment in require

or immediate as justice require” upon interests the victim or the

learning from there has been “a material

change in the defendant’s economic cir- Thus,

cumstances.” a case like this

one, sentencing court could elect

impose payments during peri- nominal

od of incarceration and until thereafter

such time as the court notified

victim or the United States that there has change

been a material in the defendant’s pay.

Case Details

Case Name: United States v. David Prouty

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 27, 2002

Citation: 303 F.3d 1249

Docket Number: 01-15273

Court Abbreviation: 11th Cir.