United States v. Reyna

standard, the FAA vacatur application award of the arbitration

and confirmation are AF- damages consequential

FIRMED.18 America, STATES

UNITED

Plaintiff-Appellee, REYNA, Enrique Defendant-

Miguel

Appellant.

No. 01-41164. Appeals, Court of

United States

Fifth Circuit. 26, 2004.

Jan. filings during propriate are not contained in which parties filed six motions 18. The DENIED; appeal disposed pendency which are motion for of this the record is EHS's to strike Issues IV follows: Action's motion attorney's defend- fees and costs associated in GRANTED; and V of EHS's brief as moot DE- ing against motion to strike is Action's alleged misrepre- Action’s motion strike NIED; parties' motions for sanc- and both DENIED; reply in EHS's brief is sentation tions are DENIED. improper inap- EHS's to strike all motion (argued) L. Haden Katherine James Houston, Turner, Attys., Lee Asst. U.S. TX, Plaintiff-Appellee. for Def., Dahlia, II, imprisonment, H. 12 months’ with the exe- E. Fed. Pub. Roland Houston, TX, for suspended cution of sentence (argued), Michael Sokolow TX, Lindenmuth, McAllen, Rey- years supervised three release. Thomas G. the latter Defendant-Appellant. option. na chose coupled generosity its with a stern warn- ing: I you

THE COURT: I tell what will JOLLY, KING, you do. I will to 12 and will sentence Judge, Chief Before JONES, HIGGINBOTHAM, DAVIS, jail. in suspend months I will WIENER, BARKSDALE, months, SMITH, execution of which those DeMOSS, GARZA, simply you means EMILIO M. that I will allow DENNIS, BENAVIDES, STEWART, mo- voluntarily. surrender But the PRADO, Judges.1 sidewalk, Circuit you spit and ment on I don’t CLEMENT ticket, you get care whether a traffic DAVIS, Judge: Circuit EUGENE W. you gone are for You can 12 months. to consider took this case en banc We I you do that or will six months give give failure to whether the district court’s today you it over with. get will to allocute as the defendant you one do Which want? Pro- required by Federal Rule Criminal Reyna chose option, After the 12-month subject to either harmless cedure 32 is again: the court warned him “I am talk- For the rea- error or error review. anything. You ing gone. about You are that, follow, in we sons that conclude your way on It is are for 12 months. defendant, objection by the of an absence just a matter of a date for setting me subject is such failure voluntary surrender.”

review. release,

During the term of supervised positive In an Reyna drugs. tested I. FACTS AND PROCEEDINGS August hearing, the court sen- Reyna, in United States panel, The Reyna to imprison- tenced 12 months’ (5th Cir.2003), cogent gave 331 F.3d 448 years supervised ment and release. background statement of facts Reyna during addressed reproduce which we below: following exchange: in Miguel Enrique Reyna plead guilty me, THE COURT: The matter before possession 1996 to of a sawed- October then, Reyna, Mr. there is simply shotgun, off violation of U.S.C. you evidence to the effect 5861(d), 5871, §§ and was sen- —from you specimen taken from back imprisonment tenced to 46 months’ September year you 2000 that years supervised release. three ingested had cocaine. Is that true? February the district court re- term release supervised voked the Yes, THE DEFENDANT: sir. Reyna caught driving because had been right. THE COURT: All Rey- gave while intoxicated. The court Yes, immediately serving option na the THE DEFENDANT: Correct. Honor. prison, being months sentenced Your Pickering Judge participate a member of the court en banc and did not was not court when this was submitted to the decision. case Cir.1998). Well, you already THE took COURT: We this case en banc to way any- precedents. ... You can’t reconsider these your blame body, you? can III. DISCUSSION THE DEFENDANT: No. sentenced, Reyna When Fed. hearing, attempted Later 32(c)(3)(C) required R.Crim.P. the district say something, interrupted but was court to personally “address the defendant following colloquy the court. The and determine whether ensued: pres to make a statement and to wishe[d] If I you THE COURT: could send ent in mitigation information away years, for ten I You would. imposing sentence” before sentence.2 why? You know why? know Because United Rodriguez, States v. hurt

you people other to whom we (5th Cir.1994). Under the law of this give opportunity. attorney this Your Circuit, right applies to allocution asks for relief of this kind sometimes. sentencing following super revocation of you when people And like sort of Although vised release.3 Id. the district people given break faith and when are Reyna prior addressed to imposing things, the benefit of these kinds of sentence, give Reyna the court did not you doing just hurting what opportunity to speak mitigation of his people. other You understand that. sentence. agree We therefore with the thing yourself One is to hurt and an- panel that the district in failing court erred persons other one is to affect other comply to with Rule 32. you have. government argues, The howev right. you.

All luck to Good er, that even if the district court erred failing give Reyna opportunity to to you. THE DEFENDANT: Thank allocute, Reyna because neither nor his Reyna object to did the denial of his objected, counsel we should review this right to allocution. prism error under either harmless plain provided by error or error as Rule II. STANDARD OF REVIEW provides: 52. Fed.R.Crim.P. Rule 52 (a) error, Any error. Harmless de- precedents, Under this court’s the dis fect, or irregularity, variance that does trict court’s denial of right of allocution rights not affect substantial must be dis- subject is not to or harmless error regarded. review under Rule 52. Rather we have (b) consistently requires held that this error Plain error. A error that automatic rights may reversal. United States v. Da affects substantial be consid- (5th beit, Cir.2000); though brought F.3d ered even it was not to (5th Myers, United States v. 150 F.3d 459 attention.4 court’s 1, 2002, currently being proposed 2.Effective December the allocution An amendment is expressly recognize 32(i)(4)(A)(ii) to Rule which would requirement 32.1 moved to Rule but that a defendant has the of allocution change restyled no substantive is made in the hearings. revocation sentence, imposing Rule. "Before the court personally ... must address the defendant 29, 2002, April 4. As amended effective De- permit speak order to the defendant cember 2002. Rule 52 amended as "was present any mitigate information to the sen- part general restyling of the Criminal tence.” easily Rules to make them more understood 52(a) matter, explained applies justice plurality, why Rule practical aAs objec- timely has made deserving protection. when defendant allocution is so reviewing tion to an error 32(a) design begin of Rule did not wheth- inquiry in an to determine engages promulgation: legal prove- with its its harmless, that is whether er was the error of allo- nance was common-law from the prejudice suffered early recog- cution. As it was Olano, 507 U.S. error. States v. nized that the failure to ask court’s 725, 734, 123 L.Ed.2d 508 anything say if he be- defendant had object to Because did not required re- imposed fore sentence allocution, Rule failure allow the court’s 8 Mod. Anonymous, versal. See 52(a) to this potential application no (KB.) Eng. Rep. Taken in 52(b), hand, ap- Rule on the other case. can history, the context of its there plies timely objection no was made. when little doubt that the drafters of Rule 52(b) Thus, Rule is the subsection 32(a) intended that the defendant be to this potential application rule that has personally afforded case. speak imposition before of sentence. above, our cases have consis- As stated are not the relevant We unmindful of automatically re- tently that we must held major changes that have evolved in give to verse a district which fails procedure criminal the seven- since opportunity for allocution the defendant century sharp teenth decrease in —the Dabeit, by Rule 32. required pun- the number crimes which were 981; at This Myers, 150 F.3d at 464-65. death, by defen- right ishable position Supreme is not without Court au- behalf, testify to dant his own thority high respect reflects ac- to counsel. no right But we see reason right sentencing. to at corded the allocute why procedural a rule should be limited States, plurality a v. United Green to the circumstances under which it that Supreme Court determined protects arose if reasons for failed to defendant had meet burden None of innova- remain. these modern showing that he was not accorded his defendant, tions lessens need for the However, eight justices of allocution. personally, opportunity to have the to cases, judges agreed that in future trial mitiga- to present plea the court his “unambiguously should address them- persuasive tion. The most counsel thus “leave no selves to the defendant” and speak not be able for a defendant as for doubt the defendant had room halting elo- might, with personal speak been invitation to issued quence, speak for are but- himself. We prior sentencing.” v. United Green by in this the fact tressed conclusion 301, 653, States, 305, 81 S.Ct. explicitly that the rule affords the defen- (1961). The trial court had L.Ed.2d rights: dant two “to make a statement the defendant and his counsel addressed behalf,” present any in his own “to you say jointly, asking “did want to some- in mitigation punish- information directly to thing?” speaking rather than reject 302, ment.” We therefore the Govern- the defendant. 81 S.Ct. Frankfurter, speaking merely for the four contention affording Justice ment’s 52, Notes, terminology Advisory style and consistent 2002 Amend- and to make Committee throughout changes the rules. These are in- ments. stylistic only.” Fed.R.Crim.P. tended to be by counsel the afforded the writ of corpus defendant’s habeas 32(A). apparent. the dual role of Rule speak fulfills However, 368 U.S. at 82 S.Ct. 468. Id. at 81 S.Ct. the Hill case also observed a footnote justices speaking in dissent Four appropriate remedy on direct ap- disagreed with the through Justice Black peal for a violation of the rule is set forth to the de- deny decision to relief Court’s States, in Van Hook v. United 365 U.S. importance and stressed the fendant L.Ed.2d 821 by requiring rule remand. enforcing the opinion Van Hook is one sentence view, In their cites as requiring Green reversal and re- highly sound a mand of the defendant’s case for resen- prized A rule so so tencing when a violation of Rule 32 occurs. long reason for so time deserves None of these Court, eases mention Rule 52 of rigorously enforced the Criminal Rules. merely praised resounding glittering generalities calculated to soften the blow Because Court did of nonenforcement. Green, not mention Rule 52 in Van Hook Hill, way we have no of knowing wheth (Black, J., Id. at 81 S.Ct. 653 dissent- er simply the Court did not consider Rule ing). 52 because it not brought to their decision, the year One after the Green attention or whether it was the Court’s Supreme Court held Hill v. United belief that time that the Rule did not States, 82 S.Ct. 7 apply to violations of the of allocution (1962), L.Ed.2d 417 that violation of a de- appeal on direct and that the appropriate right fendant’s to allocution was not a remedy for a such violation was automatic predicate corpus for habeas relief absent re-sentencing. glean We therefore from aggravating stating circumstances. After Green, Hill, our review of Hook and Van that the failure of the trial court to simple right deeply that the of allocution is rooted given a defendant who had been address legal important, in our tradition an for allocution is not an highly respected right; nonetheless is magnitude cognizable error of the that is jurisdictional. constitutional nor neither corpus, under a writ of habeas the Court very guidance We have received little stated: Supreme right from the Court about the of jurisdic- It is an error is neither which allocution since its decision in Hill in 1962.5 tional nor constitutional. It is not a Court, however, Supreme The been inherently that fundamental defect re- Green, forty very years active since justice in complete miscarriage sults of clarifying Hook and Hill in the con- Van nor an omission inconsistent with the cepts of error and error set harmless rudimentary procedure. fair demands of recently, forth in Rule 52. it was Until present exceptional It does not circum- appeal whether on direct Rule unclear 52(b) remedy every stances where the for the conceivable apply need should States, (1963); right briefly 5. The was mentioned in the dis- and Machibroda v. United 368 Leslie, 487, 489, 510, Groppi of other issues in U.S. 82 S.Ct. 7 L.Ed.2d 473 cussion 404 496, 501, 582, California, 402 U.S. U.S. 92 S.Ct. 30 L.Ed.2d 632 McGautha v. Behrens, 183, 1454, (1971), (1972); 28 United States v. 375 U.S. 91 S.Ct. L.Ed.2d 711 162, 165, detail, 295, right greater 84 S.Ct. 11 L.Ed.2d 224 discussed the but sim- States, (1963); ply Andrews v. United 373 U.S. what had been said in Green reiterated 334, 336-37, 1236, 83 S.Ct. 10 L.Ed.2d 383 and Hill. 350 object, lead us conclude that we should reexam-

error a defendant failed to to which Green, facially simple ine the directive of existed class of viola- or whether there Hook and Hill and our cases predicat- reversal Van automatic tions so serious appeal these direct application of Rule ed on decisions without required Olano, 52(b). Supreme automatically an- entitled to Court is In not afforded re-sentencing 507 U.S. at 113 when he is his question. swered this so, of right Doing criminal de- allocution. we conclude S.Ct. 1770. It stated of right resulting that errors from a denial “constitutional or a fendant’s by allocution under Rule 32 are forfeited sub- other sort” Id. timely objection. ject under Rule make a error review failure to omitted). (internal question apply is how to and citations then Rule quotations 52(b)’s plain review to this suggested that all error error. Accordingly, the Court a criminal proceeding forfeited errors Olano, we first Under ask 52(b) analysis. Rule subject to whether the court committed district “ States, v. United Johnson U.S. ‘plain’ ‘error’ that ‘affect[s] ” 461, 466, 137 L.Ed.2d 718 117 S.Ct. rights.’ substantial U.S. (1997), specifically Court met, 1770. If those criteria are S.Ct. we claimed stated that the seriousness have the to correct the discretion forfeited it from applica not remove does only error but if the should do so that the had no tion Rule 52 and Court fairness, “seriously integrity affect[s] 52(b) exceptions authority to carve to Rule public judicial proceed reputation error, charged gravity based on the Young, States v. United ings.? (citing the constitutional er including specifically 1, 15, 105 L.Ed.2d defendant, by ror Atkinson, (1985), claimed Johnson. States v. quoting (Johnson that the violat complained 56 S.Ct. 80 L.Ed. (1936)). framework, ed to trial Amendment Applying Sixth we court, jury objection, without when the that the find district court committed error materiality per in his procedures decided the issue when it to follow the failed jury submitting than it to the and personally trial rather Rule 32 address Vonn, States v. him United jury.) Finally speak mitigation allow of his 1043, 55, 122 language 152 535 L.Ed.2d 90 sentence. Given the clear the S.Ct. the (2002), Supreme Court Rule rule and case law out Supreme applied the Court 52(b) lined analysis taking guilty previously, to an error this error was obvious or plea plain. 11 of the Federal under Rule Rules Criminal Procedure. district inquiry Our next is whether this ac to address the defendant when failed Reyna’s rights. error affected substantial and the defendant cepting plea did Ordinarily, in order to establish that an 32, 11, object. like Rule that Rule states rights” error “affects substantial under “must address trial court the defen Olano, that defendant must establish Vonn describes Rule dant personally.” “prejudicial,” was i.e. that it “affect 52(b) by its terms to error in “applying pro ed outcome of the district court any other Rule of crimi application Olano, 734, ceedings.” at 507 U.S 113 65, 122 Id. at nal 1043. procedure.” S.Ct. bears the bur The defendant 734, at persuasion point. from den of on this

These decisions 113 S.Ct. 1770. Olano strictly applying regardless recognized Rule 52 however Court presumed “preju- of the claimed error that some errors the seriousness

351 spe prejudice cannot make a fered as a dicial result of the court’s him 735, 113 failure to allow to allocute. He “would Id. showing prejudice.” cific point have statements that he would 5.Ct. sentencing, have made at and somehow are not the first to address this We show these statements would have from the question and we therefore benefit changed the imposed by sentence the Dis- question given consideration this has been Id. at 287. The Third Cir- trict Court.” find other circuit courts.6 We most cuit that given concluded the nature of the persuasive practical and the work of the difficulty of proving that a Adams, in United States v. Third Circuit specific sentence, violation affected a (3d Cir.2001). That court 252 F.3d 276 “presume .prejudice would when a defen- recognized that a defendant would have an dant shows a violation of and the that he establishing opportunity onerous burden suf- for such violation to have (llth Cir.1996), (no Eighth injustice 6. The Circuit to remand continues manifest where resentencing involving in cases errors given the defendant was Walker, 295, type. United States v. 896 F.2d speak original sentencing, at his the resen- (8th Cir.1990). Some cases from that 301 tencing scope was limited in and the defen employ anal circuit the words harmless error advantage dant failed to take of the district automatically ysis, but still in effect reverse supplemental authority court' invitation to file Patterson, and remand. United States v. 128 objections days within of the 10 resen (8th Cir.1997); F.3d 1259 United States v. tencing hearing); Rodriguez- United States v. Vanhorn, 162 F.3d 1998 WL (11th 1998) Velasquez, 132 F.3d 698 Cir. U.S.App. LEXIS 82 A.F.T.R.2d ("harmless injustice” error” and “no manifest (RIA) (8th 1998) (unpublished). 98-5108 Cir. objections when defendant made no to the approach Several circuits follow an similar given amount sentence and was Adams, adopted by to that the Third Circuit possible guide lowest sentence within the Adams, discussed above. United States v. lines.) (3d Cir.2001). They have F.3d 276 concluded The Ninth Circuit follows several different resentencing required is not if the defen approaches. possible dant received tire lowest sentence at Leasure, Compare United States v. 122 F.3d guideline range the bottom of the and no (9th Cir.1997)(holding resentenc- arguments sentencing were made to the ing inappropriate unless the defendant can range that the incorrect for reason— identify specific appeal statements on including arguments departure for downward sentencing he would have made against upward departure, change or or for sentence) likely impacted would have history category. offense level criminal Mejia, (holding 953 F.2d at 468 resen- Riascos-Suarez, See United States v. 616, 73 F.3d tencing not warranted if the defendant al (6th 1996); Cir. United States v. Lew ready possible received the lowest sentence is, (4th Cir.1993); 10 F.3d Guidelines) Sentencing under (9th Mejia, States v. 953 F.2d Cir. Medrano, United States v. Cole, 1992). See also United States v. 27 F.3d (9th Cir.1993) (adopting prac a rule that in (4th 1994) (raising ground Cir. that requires resentencing, tice automatic be might argued though defendant have even he though trial cause even the defendant in the argue grounds appeal). did not those grounds court had raised no for a lower approach slightly Eleventh Circuit's is differ sentence, the court nevertheless remanded applies plain a ent. It a error review to Rule resentencing speculation for based on about 32(c)(3) only violation and remands for resen- might during what the defendant have said tencing when the defendant does not receive chance) given allocution had he been the possible appli the lowest sentence within the Navarro-Flores, circumstance, and United States v. guideline range. cable In this Cir.1980) (9th (au F.2d the court that the considers defendant tomatic ally remanding resentencing injustice.” when the suffered "manifest United States v. (11th violated). Cir.2002). Prouty, right of allocution is 303 F.3d 1249 See Adams, Tamayo, at also United States v. 80 F.3d 1514 252 F.3d n. of in the court’s sen- That court concluded that the denial the played a role district Id. This could occur tencing potential decision.” to allocution which has the at the if the defendant was sentenced even the the prejudice defendant is sort of if range fairness, bottom of the Guideline that would “the integ- affect reputation judicial pro- of the district court searching rity public review or of any disput- reveals there are ceedings.” record the court Accordingly, elected any at or sentencing, facts at issue ed the remanded for to correct error and raised with arguments in connection resentencing. Adams, 288-89. in the defen- sentencing, that resolved view, required. inquiry In our further is ap- the would have reduced dant’s favor adopt decline to a blanket rule that We plicable or the defen- range Guidelines prejudice under the once found rule dant’s ultimate sentence. above, invariably requires the stated Adams, prejudice the found recognized by correction. As the had sentenced the because Adams been Hill, Court denial of the allocu- approximate applicable middle of the tion “is not a defect that in- fundamental counsel had range Guidelines defense herently in complete miscarriage results arguments to sen- made several related justice nor an inconsistent omission against that were decided Adams. tencing rudimentary fair proce- the demands of He de- challenged upward had two-level Hill, dure.” 82 S.Ct. parture, history category, his criminal cases, In a limited class a review of departure of a re- denial downward reveal, despite presence record quest. find approach Id. We both issues, disputed that the sentencing viola- analy- pragmatic and sound. Because tion of a defendant’s allocution approach sis under the Adams is record does not violate prong. the last Olano specific, speculation to what it avoids as good is a This example. This case was might argued have said or Reyna’s appearance third before this dis- mitigate Applying his sentence. judge, trict his second for violations of the here, analysis presume Reyna we supervised of his terms release. When the prejudiced by the district error be- court’s judge Reyna district sentenced for his first top he at the cause was sentenced supervised violation of the of his terms Guidelines, applicable range under the release, gave option he him of serving term of possible well as to the maximum in prison being 6 months or sentenced ato supervised release. sentence,” “suspended 12 month followed go step We one further year supervised a three term re- Olano, analysis. prong Under the final Reyna lease.7 The court warned we to correct retain discretion violation would result in an immediate sen- only “seriously if it district court’s error prison. tence of 12 months in After fairness, public rep integrity affects the release, option supervised chose Olano, judicial proceedings.” utation of again— district court him warned At this U.S. at S.Ct. 1770. point, talking anything. I am You depart we from the conclusion about way Third for by gone. your reached Adams. You on Circuit la, Cir.2001). (5th Although spoke the district in terms of In sentence, essence, suspended suspended sentences simply the district court continued recognized have not been under federal law Reyna's supervised release. since 1987. United States v. Landeros-Arreo just It a matter of me set- months. IV. voluntary surrender. ting date summary, we conclude that the dis- order to the district court made the

When failing trict court erred in to comply with release, Reyna supervised it continue 32(c)(3)(C)’s Fed.R.Crim.P. requirement Reyna to the effect that finding made a that the court address the defendant and slightest The “owes us months. —-the give him an opportunity to make a state- variance from the condition he is slightest mitigation hold, ment sentence. We don’t need further hear- gone. We however, unobjected to error again Rey- ing.” The district asked analyzed should be under Fed.R.Crim. wanted, Reyna na that was what he P.52(b) so the district court’s error is replied “yes.” Clearly Reyna op- had the subject error review. We further original to allocute both at his portunity that when conclude such an error occurs sentencing and when resentenced follow- objection without by the defendant and ing supervised his first violation of release. the record reveals that the district court Reyna again violated the terms of When did not sentence at the bottom of the supervised by testing positive for release guideline range rejected or if the court drugs, agreement the court enforced its arguments by the defendant that would exactly it Reyna and did what had sentence, have in a resulted lower we will do, Reyna it promised would sentenced presume that prej- the defendant suffered imprisonment. Reyna’s him 12 to months error, udice from the i.e. that the error initial appearance comments demon- affected the rights. defendant’s substantial happen. strate he knew this would Once we determine the defendant suf- Magistrate Judge Reyna When the told prejudice, fered ordinarily we will remand that Judge Vela could revoke his term of But, for resentencing. even if the defen- supervised impose prison release and prejudiced dant is considered under this up years, Reyna replied, sentence of to two test, thorough we will conduct a review of already year by “I’ve been sentenced to a the record to determine if we should exer- February Mr. Filemon Vela the 3rd.... error, cise our discretion correct the Judge I Vela even told me didn’t have to examining “seriously whether the error af- him see no more. That’s what he said.” fairness, integrity public repu- fects the or original district court held to them judicial proceedings,” tation of under the bargain, though even the judge indicated of Olano. Based on the un- prong final Reyna his desire to sentence to a longer record, developed usual facts in this dis- imprisonment period Reyna’s because above, cussed in detail we decline to exer- behavior was a of faith that breach made it cise discretion to our correct the district harder to show other defendants similar Reyna’s court’s error and affirm sentence. leniency. particular On the facts of this AFFIRMED. case, we are satisfied that the district failing court’s error in to address JONES, Judge, EDITH H. Circuit speak mitigation and allow him to of his joined JOLLY, by E. GRADY JERRY E. seriously

sentence did not fair- affect the SMITH, EMILIO M. GARZA and EDITH ness, integrity public reputation of his CLEMENT, Judges, BROWN Circuit sentencing proceedings. Accordingly, we concurring: decline to exercise our discretion to correct the district court’s error affirm I Rey- judgment concur this case applying plain na’s sentence. and in the court’s decision 354 timely raised by the sideration of an error the to determine whether analysis

error defendant), right gov- of allocution the burden on the places denial of a defendant’s error where the de constitutes reversible ernment. But in the objected nial trial court. was not court appellate considers er [w]hen United States by compelled This result is plain, ror that as the qualifies tables Vonn, v. 122 152 S.Ct. 535 U.S. demonstrating turned the on substan- Vonn, nearly a L.Ed.2d 90 tiality of on a any effect defendant’s plain Supreme applied Court unanimous sat rights: the defendant who silent at plea colloquies that guilty error review to trial has to show that his the burden time appeal, were the first on alleged, for were affected. Ola rights” “substantial Proc. 11. See id. to violate Fed. R.Crim. no, 734-735, 113 S.Ct. 1770. separately I write 1043. S.Ct. Vonn, 62-63, 535 U.S. at S.Ct. at “pre articulation of because the court’s step of the sumed at the second prejudice” distinction, Contrary the to this en banc plain seems inquiry error inconsistent today court a silent of relieves defendant Nevertheless, Vonn.1 analysis, plain error showing the burden of that his “substantial court, by the en interpreted even banc rights” by allowing “pre- were affected a nearly a denial of in compel will still relief sumption of Our court prejudice.”2 asserts defendant, all a represented eases where expressed that such a presumption, but counsel, point out trial by did not to the Olano, explained appropriate is in be- right “denial” of his to allocute. the (a) of cause the elevated historical By prejudice” adopting “presumed ap- a (b) allocution; importance proach un-objected-to denial of allo- to the difficulty proving prejudice the from a court, cution in trial this court has (c) right; denial fear that effectively significant portion a shifted judges trial otherwise take will not allocu- proving plain error from the burden of seriously. tion reasons are These inconsis- opinion defendant. Souter’s Justice Supreme tent with the Court’s thus-far Vonn expressly distinguishes between plain uniform application of the error rule. error and error review harmless First, I a agree defendant’s party based bears the on which burden allocution but can it prove important, of a is be more violation defendant’s sub- place. important taken than the to enter volun- rights stantial has As Justice (con- which was Vonn held noted, tary guilty plea, Souter harmless error review Vonn, rejected position repeated 1. In Court Court Justice Stevens' ex- analytical conducting steps taken to be pressed partial regarding dissent in his lone First, analysis. presumption. the existence of such a See id. Second, "plain.” trial the de- court must 1043; 76-80, at 73 n. S.Ct. id. at to show "sub- fendant has the burden that his J., (Stevens, concurring part S.Ct. 1043 Vonn, rights” stantial were affected. See dissenting part). (citing U.S. at 122 S.Ct. 1043 Olano, 734-735, States Unfortunately, applica- banc court's the en (1993)). Third, 123 L.Ed.2d 508 "presumed prejudice” tion of extends to near- plain-error is in the "because relief review ly appeals by triggering pre- all allocution court, reviewing discretion of the a defendant sumption anything than sentence other persuade the further burden and if bottom of the Guidelines there were fairness, seriously that the error affected the sentencing. disputed issues at These two cri- integrity public reputation judicial pro- virtually teria describe the entire universe of (internal ceedings.” quota- citations and Guideline sentences. omitted). Notably, tion marks the Vonn

355 subject plain-error pre- prejudice. Further, review without that the of allo- Moreover, Vonn, prejudice? sumed in un- cution hardly was denied suggests a defen- here, like there existed constitutional un- dant’s sentence is harsher than it might derpinnings guilty pleas. standards for Indeed, have been. many defendants Vonn, Compare at 122 S.Ct. incriminate themselves further speak- (discussing the Court’s decision ing up sentencing. Mere suppositions States, McCarthy v. United 394 U.S. do justify not a presumption of prejudice. (1969), 89 S.Ct. L.Ed.2d 418 Third, the court seems to fear that which noted the constitutional dimensions judges will take a defendant’s allocution States, guilty pleas), with Hill v. United seriously less aspect this of plain 424, 428, 82 S.Ct. 7 L.Ed.2d analysis is maintained. Such reason- (noting allocution error is “neither ing was dispatched Vonn no uncertain constitutional,” jurisdictional nor nor is it terms. Justice poten- Souter observed the “a fundamental inherently defect which re- tial, plain error, absent for a defendant’s complete sults in a miscarriage justice, “lying log” behind the with regard to Rule nor an omission inconsistent with rudimen- guilty errors, plea responded and he tary procedure”). demands of fair Fur- follows: ther, that, interpreted Vonn a federal rule might, This result perhaps, be sufferable here, like the requires rule involved if there were merit in objection Vonn’s court to “personal- address the defendant applying plain-error standard to ly” in open court. the linguistic Given a defendant stays who mum on Rule 11 identity between Fed.Crim. Rules 11 and invites judge to relax.... 32(c)(3) superior and the constitutional But, aside, rhetoric always pedigree guilty voluntariness, of a plea’s point plain-error rule: the value capricious seems for this court to deviate finality requires counsel to be defense from Vonn and diminish the defendant’s toes, on his just judge, and the burden of proving harm to his substantial just who sits there when a defendant rights.3 mistake can just cannot sit fixed Second, it is far proving from clear that speaks there when he up later on. 535 harm to a rights defendant’s substantial U.S. at (emphasis this context is more difficult than with added). regard to other forfeited errors. The ma- footnote, In a Justice Souter reinforced jority intangible extols the benefit from a point, stating that “[i]t is to bur- fair defendant’s allocution at sentencing, but den the lawyer’s his obli- defendant might one realistically more conclude that gation to do what is reasonably necessary only a lawyer mediocre depend must to render guilty plea and to effectual eloquence client’s unschooled to garner trifling ivith the court.” Id. refrain from mercy from If judge. there are facts at 73 n. 122 S.Ct. 1043 (emphasis add- mitigate culpability suggest a low- ed). sentence, system er our presupposes that lawyer the effective support reasons, raised them in For all these it is incorrect and of his client with or without imprudent allocution. to distinguish plain error re- facts, turn, Such ap- reviewable on view in denial of allocution from cases peal requiring without a presumption of test articulated in Vonn. authority proach. The court relies on Significantly, from other none of the cases cited fortify presumed circuits to prejudice ap- by majority post-dates its Vonn. Ayers; Blackmon; B. Leola Ran

Nevertheless, presumed prej- court’s Lillie Henry Ayers; Walker; dolph Bernard troubling than it is less approach udice Archer, Ivory Dr.; Phillips, Vernon inverting the harmless After could be. Dr.; Dorothy Walls; Francis Olade government, onto error burden leshowl, Acholonu, Dr., Dr.; D. Alex victory out of majority snatches court Appellants, trial by finding that the hands defendant’s “seriously affect did court’s v. fairness, public reputation integrity, THOMPSON, Bennie G. United States This last as whole.” proceedings Congressman, Congressional Second although analysis,

prong of Mississippi, Plaintiff-Appel District discretion, cannot be subject to the court’s lee, correctly de- easily satisfied. of the case before us scribes facts unusual, signal there is no con- highly (Government) but Plaintiff/Intervenors In future, unusual cases. cerning less Plaintiff-Appellee, Intervenor to prevail, defen- appeals, most of these v. objective show dants will have to some Barbour, Haley Etc.; et have the trial moved basis would al., Defendants, sentence; grant a lower other- wise, hardly it can be said that a miscar- Haley Barbour, Governor, State Johnson See justice occurred. riage of Mississippi, Defendant- States, v. United Appellee, 1544, 1550, 137 L.Ed.2d Board of Trustees of State Institutions sum, I the court has although believe Higher Learning, Appellee, precepts clear laid out deviated from the Vonn, agree I the final result Armstrong, Movant-Appellant. Louis best convinced that defendant’s remain hope for an effective allocution lies with No. 02-60493. representation in the attorney’s vigilant Appeals, Court of States trial court. Fifth Circuit.

Jan. Jr., Plaintiffs, AYERS, Private

Jake

Plaintiff-Appellant,

Case Details

Case Name: United States v. Reyna

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 28, 2004

Citation: 358 F.3d 344

Docket Number: 01-41164

Court Abbreviation: 5th Cir.