Case Information
*1 Before LUCERO , GORSUCH and MATHESON , Circuit Judges.
After examining the briefs and appellate record, this panel has unanimously determined to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
Francisco M. Nanez appeals from his sentence imposed following the revocation of his supervised release, contending that the district court failed to afford him his right of *T his order and judgment is not binding precedent, except under the doctrines of law of the case, res judicatа, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Citation to an order and judgment must bе accompanied by an appropriate parenthetical notation – (unpublished). 10th Cir. R. 32.1(A).
allocution before imposing the sentence. Bеcause Mr. Nanez cannot demonstrate plain error warranting reversal, we AFFIRM.
BACKGROUND
Mr. Nanez pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 30 months’ imprisonment and 3 years’ supervised release. His supervised release began on Mаrch 24, 2009. On August 27, 2009, a petition to revoke supervised release was filed, which was later superseded by an amended petition. Mr. Nanez admitted to violating the terms of his supervised release by drinking in public, possessing an open container of alcohol in a vehicle, failing to submit to random drug testing, and failing to report. He was sentenced to 43 days’ imprisonment (time served) and 2 years’ supervised release.
Mr. Nanez was arrested on August 17, 2010, pursuant to another petition to revoke his supervised release. Mr. Nanez admitted to violating the terms of his supervision by possessing methamphetamine. After Mr. Nanez admitted that hе was in violation of the terms of his supervised release, the district court asked: “Do you wish me to proceed to sentencing?” Tr. of Sentencing Hr’g at 2, R. Vol. 3 аt 4. Mr. Nanez’s counsel responded: “Yes, Your Honor.” at 3, R. Vol. 3 at 5. The district court then explained its reasoning for imposing a 24-month sentence with no further term of supervised release.
After the court had imposed this sentence, Mr. Nanez’s counsel stated: Your Honor, I meant to address you before you made your decision. Mr. *3 Nanez is now getting Social Security disability and SSI. He also faces a State charge for this. So I was hoping you would consider just giving him time served in this сase and letting the State deal with this, because it was a personal use amount of methamphetamine.
Id. at 4, R. Vol. 3 at 6. The district court reiterated thаt Mr. Nanez’s sentence was for 24 months’ imprisonment, and the hearing concluded.
Mr. Nanez timely filed a notice of appeal. We exercise jurisdictiоn under 28 U.S.C. § 1291.
DISCUSSION
Mr. Nanez presents one issue on appeal: whether the district court’s failure to offer
him the opportunity to allocute before imposing a sentence requires reversal. Because
Mr. Nanez did not object to the purported violation of his allocution rights at the
revocation hearing, we review for plain error.
[1]
United States v. Rausch
, ___ F.3d ___,
No. 10-1388,
*4
Mr. Nanez argues that the district cоurt plainly erred in violating Federal Rule of
Criminal Procedure 32, which states that before imposing a sentence the district court
must “address the defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” Fed. R. Crim. P. 32 (i)(4)(A)(ii). He
cites to
United States v. Landeros-Lopez,
Rules 32 and 32.1 differ. First, Rule 32 requires an opрortunity to allocute before a sentence is imposed; Rule 32.1 contains no explicit timing requirement within the revocation hearing. Second, Rule 32 directs the court to address the defendant personally in affording an opportunity to allocute; Rule 32.1 refers to a defendant’s opportunity to аllocute without instructing the court on how to afford it. Rule 32.1 does not specify if it is the court’s responsibility to offer the opportunity to allocute or thе defendant’s responsibility to request it.
As
Rausch
explained, other circuits have disagreed as to whether the similarity of
language between Rules 32.1 and 32 requires a distriсt judge at a revocation hearing to
address the defendant personally and provide an opportunity to allocute before
sentencing.
See
is not part of a criminal proseсution and thus the full panoply of rights due a defendant in such a proceeding does not apply. . . . Revocation deprives an individual, not of the absоlute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.
Morrisey v. Brewer,
If there was error, it was certainly not plain given our court’s recognition оf *6 ambiguity in Rausch. Id . “For purposes of plain error review, the term ‘plain’ requires that the error be clear or obvious under current law.” United States v. Pablo, 625 F.3d 1285, 1293 (10th Cir. 2010). Because any error сould not have been plain, Mr. Nanez cannot succeed in this appeal under the applicable plain error standard of review.
CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Nanez’s sentence.
ENTERED FOR THE COURT Scott M. Matheson, Jr.
Circuit Judge
Notes
[1] Mr. Nanez makes no argument in his brief that any of his or his counsel’s statements at the revocation hearing constituted an objection regarding the opportunity to allocute. He simply argues that the facts of his case require reversal regardless of the standard of review.
[2] To better understand this disagreement, it is helpful to review some history of
Rule 32. Although the present language regarding allocution in Rule 32 is considerably
different than that in Rule 32.1, a previous version of Rulе 32 was more similar. The
U.S. Supreme Court interpreted this previous version of Rule 32 as granting criminal
defendants a personal right of allocution and as imposing on trial judges an obligation to
unambiguously address defendants and invite them to speak before sentencing.
Green v.
United States
,