United States v. William Jay Cole

LUTTIG, Before HALL and Circuit Judges, BRINKEMA, Judge District for the Eastern District of Virginia, sitting by designation.

Vacated and published remanded opinion. Judge K.K HALL wrote the majority opinion, in which Judge District joined. Judge BRINKEMA LUTTIG wrote dissenting opinion.

OPINION HALL, K.K. Judge: Circuit Jay appeals the 63-month sentence he received on pos- a conviction for session of crack cocaine with intent to deliv- er. We find error the manner in which sentencing hearing conducted, wé vacate the sentence and remand for re- sentencing. police Cole sold a informant 1.2

grams of crack for The informant $300. purchased testified at trial that he had crack from Cole on four or five other occasions in During buy, the controlled which was tape-recorded, Cole and the informant dis- $1,200 drug cussed debt owed the infor- prior drug purchases. mant to Cole for testify. did not He was convicted single charge. sentencing stage,

At the put on evidence that would have been enough buy grams about 4.8 of crack. presentence report, officer recommended Cole be held accountable grams, for 6 plus estimated 4.8 —the buy. the 1.2 involved in the controlled 2Dl.l(a)(3), 6-gram Under U.S.S.G find- ing results in a base offense level of 26. No adjustments other to the offense level were recommended. An offense level conjunction I, History with a Criminal yields sentencing range of 63-78 months. No, Hon- COUNSEL]: [DEFENSE amount of argument on the extended After Cole, or. attributed to be had been sat- 6-gram amount ruled that was denied his that he contends Cole now accepted The court isfactorily proved. agree that the allocution. We of the other recommendations the denied, that the error we believe was the bottom Cole at sentenced officer and should be redressed. prejudicial was an- was After the sentence range. the supervised re- nounced, including terms II assessment, the lease, fine and a $50 a was objection the denial of allocution to No colloquy occurred: following is so the error district made defendant ... Does the THE COURT: United plain error. See subject to review regard say in further to anything -, 113 S.Ct. U.S. v. States to— (1993); see also Unit- L.Ed.2d 508 123 Honor, I COUNSEL]: [DEFENSE (4th Cir.) Lewis, 10 F.3d 1086 v. ed States to would like himself the defendant think analysis to allocution plain error (applying address Court. denial). analysis requires us to The Olano I fail to notice did THE COURT: and, there was error determine whether first right appeal to he had defendant so, “plain.” the error was if period a within judgment of the Court days. ten A Yes, sir. COUNSEL]: [DEFENSE imposing say “Before I some- DEFENDANT: Can THE person the defendant now, shall ... address court Your Honor? thing to if the defendant wishes ally and determine Pardon? THE COURT: any infor and to a statement make May I address the THE DEFENDANT: Fed. mitigation of the sentence.” mation in myself? 32(a)(1)(C). rule is satis not R.Crim.P. your that. ask counsel You THE COURT: affording “[m]erely Defendant’s fied you to ask want know what don’t What —I ” Id. at speak.... to opportunity counsel Court. States, (citing 365 U.S. Green v. United 1092 just to clari- want THE DEFENDANT: 670 5 L.Ed.2d 81 S.Ct. on this case. something the Court fy to Stuver, (1961)); States v. also United see your Ask counsel THE COURT: Cir.1988) (record (4th must reflect F.2d say some- say anything. Your you right to that he had knew that defendant you. that harms thing case, the mitigation). In Cole’s speak in honor, I COUNSEL]: Your [DEFENSE colloquy out above occurred set after my to client’s remarks import think the sentence. More had announced that the Government’s would be the Court over, discourage appeared witness, infor- [the Hairston Mr. chief your counsel before speaking from —“Ask testimony to mant], in his not accurate was counsel, though say anything” you —and jury and to the Court. say, wanted to what his client not certain like to do is he would I think what judges should “[T]rial for him. answered things of the you perhaps some address that the defendant for doubt leave no room put in a to me he he indicated that that personal invitation been issued has perhaps And you. I don’t know. letter Green, sentencing.” speak prior to forum. would be a better 655-56; United 304-05, at see something (4th Cir.1988); Miller, That would THE COURT: 849 F.2d 896 States He 1252, 1256 to address the Court. use Phillips, 936 F.2d cases). appeal. Cir.1991) the Court right (11th not (collecting do will We appeal within right notify him of ruling will hesitate day. days from period of ten and that afforded to Cole adequately plain. error that is court committed anything further? there Is ing eloquence, speak Green, B for himself.” 365 U.S. at 81 S.Ct. at 655. Lewis, inquiry As in the focus of our analy C prong plain third error is the sis—did the denial of the of allocution finding Even after error is rights?” ] substantial See plain “affectf prejudicial, both we must still de —Olano, (citing F.3d at 1092 cide whether to exercise the remedial discre 1778). Our decision in 52(b). S.Ct. Lewis granted by tion Fed.R.Crim.P. We any argument has foreclosed that a denial of should correct forfeited errors if the “seriously error per rights” allocution se affects “substantial integri affect[s] ty public reputation judicial Nevertheless, proceed as that term used Olano. —Olano, ings.” U.S. 113 S.Ct. at we we should examine case believe each Atkinson, (quoting United States v. prejudicial. determine whether the error was 157, 391, (1936)). S.Ct. L.Ed. 555 Lems, prejudice we found no because When a defendant was unable to address the the defendant had “received the shortest sen- being court before possi sentenced and the statute,” i.e., by tence allowed the low end of bility remains that an right exercise of the of applicable sentencing range, the “[n]oth- allocution could have led to a sentence less received, ing might have said in allocu- than that opinion [the defendant] we are of firm sentence_” integrity tion could fairness and pro have reduced his ceedings brought would be into serious disre any possibility 10 F.3d at 1092. Absent of a pute were we to allow the sentence to stand. sentence, lesser we deemed a remand for reimposition of the same sentence “a fruitless vacated, The sentence is and the case is case, exercise” and Id.1 In affirmed. Cole’s resentencing remanded for in accordance identify we can least two opinion.2 with this grounds upon which the court VACATED AND REMANDED. imposed a reduced sentence. LUTTIG, Judge, dissenting: Circuit may persuade Cole have been able to sentence, In vacating majority Cole’s court that he accountable for less than first holds that the district court committed . being the 6 of crack attributed to him. “plain assertedly allowing error” in Cole instance, finding For of less than 5 by of allocution mandated Fed. reduces the base offense level two. See 32(a)(1)(C), R.Crim.P. and then holds that 2Dl.l(c)(10). Moreover, § pro- U.S.S.G. —Olano, --, under United States v. bation officer recommended that Cole not (1993), 123 L.Ed.2d 508 receive 2-level reduction for rights” error affected Cole’s “substantial 3El.l(a). responsibility. See U.S.S.G. degree such a that his sentence must be However, had Cole addressed the vacated. The first of these conclusions is possibility there was the that the court could matter, erroneous as a factual for the district persuaded have been to award the 2-level requirements satisfied the Rule 32 in a reduction; a 2-level reduction translates to a colloquy by majority. not even referenced shift in applicable sentencing range from The second of its upon conclusions is based 63-78 long months to 51-63 months. As as misreading Court’s decision remained, possibility we are unable U.S. -, in United States v. say prejudiced by that Cole was not (1993), S.Ct. 123 L.Ed.2d 508 so as to denial of prior to allocute relieve the defendant of his burden of show imposition persua- of sentence. “The most ing prejudice in order to obtain on reversal speak sive counsel not be able to for a “plain error.” For these rea sons, might, defendant as the defendant with halt- I dissent. components none things of the 262- address ... some of the that he guideline month sentence are remand, disclosed. you.” indicated to in a letter to me On the district court should consider this letter be- sentencing hearing. lawyer

2. At the Cole’s told announcing fore sentence. the court that "the defendant would like to ... presen- in the that has been indicated duct I. put evidence on. report rather than tenee the district court majority holds en- court then The district at 69-70. J.A. failing, prior to “plain error” committed Bentley in a discussion about gaged Mr. sentence, personal- to address imposing recommendations report’s presentenee to make a wishe[d] if [he] ly and ‘determine attribution, which a discussion drug any information present and to statement record, see id. pages in the sumes fourteen Ante, at 998 mitigation the sentence.’” 70-83, court sen- the district after which 32(a)(1)(C)). It does (quoting Fed.R.Crim.P. Cole. tenced the sen- portion excerpting from so passage confirms that this I believe occurred tencing hearing that after obligations un- its court fulfilled reasoning that a imposed and sentence was court addressed 32. The district der Rule is insuffi- of allocution offer post-sentence sentence, invit- regarding his personally require- The allocution at 997-98. cient. Id. (“Do you dispute a statement him to make ed Fed.R.Crim.P.32(a)(l)(C) do indeed ments way?”), asked whether imposes district court attach “before” mitiga- information wished by the colloquy recited if the (“Do you want proposed sentence tion of the colloquy in matter?”). Cole to that take evidence as dis- offered allocution defendant was asked responded questions to the personally have been de- then Cole would trict disagree with directly that he did of him by stated right for the reason prived of his Thereafter, was his as proposed sentence. The district But it is majority. not. attorney, en- who right, to his he deferred right of allocution in his offered Cole in discussion the extended gaged the required, place, as exchange that took an On this drug noted above. attribution exchange, which is sentencing. That record, therefore, that Rule I would hold majority, as by reads entirely omitted 32(a)(1)(C) not violated. was follows: Cole, prior occa- on a Mr. THE COURT: II. jury of count you by convicted sion were majority’s troubling than the Even more of “crack” grams of 1.2 for distribution one allocution, actual offer of holding as 841(a)(1). Is 21 U.S.C. cocaine under applica plainly erroneous is its own that correct? Because error” doctrine. “plain tion of the Yes, sir. THE DEFENDANT: sentencing made at objection was no your To the knowl- THE best COURT: allocution, hearing asserted denial edge? observes, is, majority as the appeal Yes, sir. THE DEFENDANT: 52(b), pro governed Fed.R.Crim.P. upon It has been THE COURT: found affecting “[p]lain or defects errors vides investigation made by the record made although rights be noticed substantial court that an officer of brought to the they were attention apply against level 26 should offense Term, v. in States Only last United court.” way? you dispute that you. Do — -, Olano, 113 S.Ct. grams 1.2 That is the distribution (1993), inter Supreme Court L.Ed.2d plus relevant charged in count one cocaine 52(b), four-prong setting forth preted Rule 4.8, from five the 4.8 conduct of to which determining errors whether test for distributions, grams. of six prior total court can objection in the district no is made disagree that? you with Do appellate nonetheless serve Yes, do, sir. THE DEFENDANT: Olano, man is not reversal reversal. Under 2) take evi- you 1) error; THE Do want COURT: that is is: unless there dated 3) matter? rights; as to that dence affects substantial plain; 4) in honor, ‘seriously affect[s] I would MR. BENTLEY:1 pro judicial reputation of tegrity, public your right at behest reserve the Id., (quoting ceedings.’” 113 S.Ct. at reliability of the relevant argue the sentencing. attorney Bentley at trial and was Cole's 1. Mr. Atkinson, United States 297 U.S. crack for which he was responsible held or to (1936)). 80 L.Ed. 555 As- award him of responsibility suming arguendo that the district court com- Ante, reduction. at 999. error, plain mitted there is no basis whatso- majority’s The assertion that further allo- ever the record for concluding, as the tmigh cution have prompted the court does, that the error affected Cole’s reduce the amount of crack for which Cole rights.” “substantial majority’s contrary was held pure speculation. accountable is possible only conclusion is explicit- because it Not even Cole’s appeal counsel on attempted ly relieves of proving burden argument, make this good and for reason. prejudice, in Supreme contravention of the earlier, As noted the district court engaged Court’s command Olano. attorney Cole’s trial in a fourteen-page dis Court held that the cussion before ruling that 6-gram

requirement that rights substantial be affect suggested amount ed “in most cases ... means that the error proven by been a preponderance of the evi prejudicial: must have been It must have dence. During discussion, Cole’s attor affected the outcome of the District Court ney attacked reliability of the govern proceedings.” Id. 113 S.Ct. ment informant’s trial testimony, J.A. at 70- at 1778. as to requirement, “[i]t 71; questioned during testimony the defendant rather than the Government the informant discussing marijuana rath who bears persuasion the burden of with er than purchases, 72; id. at in respect prejudice.” Id. quired whether the dollar values used (4th Cir.1993), F.3d government to purchases convert drug into we held that violations of Rule 32’s allocution weight accurate, id. at 77. The most requirement do special not create circum damning evidence supporting attribution of mandating stances per reversal; se rule of the 6 of crack to Cole came during out thus, case, in this Cole has the burden of his attorney’s own cross-examination of the demonstrating prejudice. trial, during informant when the informant responded way

Cole has no twice purchased that had .met burden. he His brief does not four any contain from Cole or five argu- sustained times before the con buy. ment about trolled how allocution Id. at'79. would result- ed merely lesser but the con- The against case a reduction accep- for elusory statement that a remand is warrant- tance of responsibility is even stronger, so ed so that can he “possibly mitigat- much so that had the district court granted ing circumstances that might result in a reduction, such a it would have committed departure downward acceptance [sic] of reversible error. The notes that (em- responsibility.” Appellant’s Brief at 9 Cole elected to stand trial on govern- added). phasis Such tentativeness is under- charge Ante, ment’s of crack distribution. at standable, since the record is clear that Cole 997. Sentencing Guidelines, Under the it is received the minimum guide- in the sentence absolutely clear acceptance of re- range, line and that depart- sponsibility adjustment ed guidelines from the downward on the fíne is not apply intended to to a defendant imposed ($1,500, opposed to puts who to its burden of $1,000,000). argument, Even at Cole’s coun- proof denying trial the essential sel was to identify any unable facts that guilt, convicted, elements is and factual of justify would a lower sentence. Under Ola- guilt expresses then admits and re- no, therefore, Cole has not established the morse. In rare situations defendant requisite prejudice to justify reversal of the may clearly demonstrate an acceptance of district court. responsibility for his criminal conduct even majority, The though unconvinced Cole’s own he exercises his constitutional suggest any failure to possible prejudice, occur, to a trial. This may example, for conjures up possibilities own, two of its where a goes defendant to trial assert namely, that if Cole had preserve addressed the dis- issues that do not relate trict court even more fully, guilt (e.g., factual to make a constitutional persuaded it either to challenge reduce the of amount to a challenge or a statute similarly record evidence conduct). no there aof statute applicability de- of any kind downward other instance, supporting determi- In each such judi- scarcity of re- current accepted parture.3 has Given a defendant

nation upon resen- resources, case for primarily remanding this based will be sponsibility cial naught. conduct. statements errand pre-trial tencing seems comment, (Nov.1992) (n.2) dissent. therefore 3.E1.1, U.S.S.G. added). (emphasis that Cole went record evidence is no There relate did not preserve issues trial to similarly no There is guilt. to his factual statements any “pre-trial of evidence

record McLENAGAN, R. William of demonstrating an and conduct” Plaintiff-Appellee, -trial post of such nor even responsibility, presen- and conduct.” “statements object, he did report, tence KARNES, Police Richmond C. John departure downward specifically states Defendant-Appellant, Officer, main- because not warranted dealing remember that “he doesn’t tained at 98. J.A. time.” base at cocaine City Police, of Tapscott, Marty Chief M. sentencing hear- short, point no Shook, Captain, Richmond; E. Thomas accep- of an any indications there ing were Richmond; City Department, Police effects whatever the responsibility; tance City Winston, Sheriff of J. Andrew ” ante, (quot- at 999 ‘halting eloquence,’ Smith, Richmond; Richmond Loretta States, 365 U.S. ing v. United Green Sheriff, Deputy Defendants. (1961)),they 5 L.Ed.2d McLENAGAN, accep- to create an R. powerful as so cannot be Plaintiff-Appellee, ex nihilo.2 responsibility tance of therefore, has commanded majority, abe what will court to undertake City WINSTON, J. Sheriff Andrew remand, since “fruitless exercise” on Smith, Richmond; Richmond Loretta following this second only recourse court’s Defendants-Appellants, Sheriff, Deputy to the Cole be resentence allocution will above, already serving. As noted term he City argument Police, extensive Marty Tapscott, heard the district court Chief M. about sentencing Shook, Captain, Richmond; counsel at from E. Thomas Richmond; held accountable City should Department, Police merely crack, opposed to as Karnes, Offi- Richmond Police C. John buy. Its controlled grams involved 1.2 cer, Defendants. proven that the decision 93-1992, 93-1993. Nos. of the preponderance gram amount Appeals, Court erroneous, clearly not not evidence Circuit. Fourth Nor, pre- absolutely correct. it was clear, is there make should ceding discussion April 1994. Argued grant court can way 30, 1994. Decided June reduc- responsibility acceptance of considering did tion, that Cole particularly report’s presentence object original proceeding.

trary at the conclusion properly account- be held Cole should rights” were not Because Cole's "substantial 2. Because crack, error, subject error he is alleged for six able affected could not fortiori "seriously affect[ed] the im- mandatory 5-year minimum sentence proceed- public integrity, reputation” 841(b)(1)(B). posed 21 U.S.C. below, prong required the fourth ings isas Olano.

Case Details

Case Name: United States v. William Jay Cole

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 30, 1994

Citation: 27 F.3d 996

Docket Number: 93-5021

Court Abbreviation: 4th Cir.