          United States Court of Appeals
                     For the First Circuit

No. 11-2301

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        GISELINE PACHECO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges.


     Thomas J. Trebilcock-Horan, Research and Writing Specialist,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on
brief for appellant.
     Justin Reid Martin, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, were on brief for appellee.




                         August 13, 2013
            TORRUELLA, Circuit Judge.   On March 11, 2011, Giseline

Pacheco ("Pacheco") was arrested at an airport in Puerto Rico for

attempting to import 672 grams of heroin from the Dominican

Republic.    On April 6, 2011, the government indicted Pacheco for:

(1) conspiring to possess with intent to distribute heroin in

violation of 18 U.S.C. § 846; (2) possessing with the intent to

distribute heroin in violation of 21 U.S.C. § 841; (3) conspiring

to import heroin in violation of 21 U.S.C. § 963; and (4) importing

heroin into the United States in violation of 21 U.S.C. §§ 852 and

960.   Pacheco entered a straight guilty plea and was sentenced to

24 months' imprisonment and two years of supervised release.

            Pacheco argues that her sentence is procedurally and

substantively flawed and requests that we vacate and remand for

resentencing because the district court: (1) erred in denying her

request for a continuance of the sentencing hearing; (2) sentenced

her under the incorrect impression that it could not forego the

imposition of a term of imprisonment without the government first

requesting a downward departure pursuant to U.S.S.G. § 5K1.1 (the

"§ 5K1.1 motion"); and (3) did not afford her the right to

allocute.    We reject her contentions and affirm.

                I. Factual and Procedural Background

            At the time of her arrest, Pacheco, a 20-year-old single

mother of two young children, ages four and five, was pregnant with

her third child.   When she was detained, Pacheco named the man who


                                 -2-
had allegedly recruited her to import the drugs (the "recruiter").

Pacheco was later able to pick the recruiter out of a lineup and

expressed her willingness to cooperate in a case pending against

him at the federal district court in Puerto Rico.           As it turned

out, a grand jury in Puerto Rico had indicted the recruiter several

months earlier, but the authorities had only arrested him the day

before Pacheco was detained.

          On March 29, 2011, the Assistant United States Attorney

("AUSA") in charge of the case, AUSA Justin R. Martin ("AUSA

Martin") contacted Pacheco's counsel to express the government's

inclination   to   meet    with   Pacheco   to   discuss   her   potential

cooperation to supersede the recruiter's indictment by holding him

accountable for larger quantities of heroin, based on the amount

Pacheco carried when she was arrested.           The parties scheduled a

meeting for May 11, 2011, and the government reserved grand jury

time to supersede the alleged recruiter's indictment.              In the

meantime, the government indicted Pacheco.

          During the meeting with the government, Pacheco initially

recanted and denied the recruiter's involvement in the events that

led to her arrest.        By the end of the meeting, however, after

speaking with her attorney alone, Pacheco reverted to her original

version of the events, but refused to cooperate in any manner that




                                    -3-
could reveal to the recruiter that she had done so.1                       She also

refused to testify against him before a Grand Jury or at trial.

Based on this, the parties were unable to finalize a plea agreement

and Pacheco entered a straight plea.

             At   the   change-of-plea       hearing,   the    judge     asked   the

government if it would file a § 5K1.1 motion requesting a downward

departure for substantial assistance.            The government responded it

would not because Pacheco had been given the opportunity to

cooperate and the recruiter had already pled guilty pursuant to a

plea agreement.         The judge nonetheless strongly encouraged the

parties to explore ways for Pacheco to cooperate.

             According    to   the    government,       AUSA    Martin     and   his

immediate supervisor decided that, with Pacheco's assent, the

government    could     file   an    informative    motion      in   the    alleged

recruiter's case, prior to his sentencing.                     According to the

government's brief,

             although the benefit to the government of
             filing that informative motion was practically
             inexistent, because the government was already
             obligated   under   [the   recruiter's]   plea
             agreement to recommend that he be sentenced to
             a 108-month imprisonment term, it was the only


1
  According to Pacheco, it was not until the May 11th meeting that
she found out the government would ask her to testify before a
grand jury and, if necessary, in open court. After learning this,
she suffered a panic attack as she recalled a traumatic experience
she had when she was 15 years old testifying against a man who had
assaulted her.   She also alleges that, in the previous several
days, other detainees at the federal detention center where she was
being held threatened her about cooperating with authorities.

                                       -4-
             option conceived by the prosecutors for
             arguably justifying the filing of a 5K1 motion
             in Pacheco's case and responding in good faith
             to the district court's energetic suggestion.

             On August 19, 2011, the government filed the agreed-upon

motion in the recruiter's case, stating that, if the case had gone

to trial, it would have had a witness testify that he or she had

conspired with the recruiter to import heroin from the Dominican

Republic.2    On August 25, 2011, the district court sentenced the

alleged recruiter to 108 months' imprisonment, the amount of time

established in his plea bargain.

             On September 28, 2011, approximately five days before

Pacheco's sentencing hearing, AUSA José A. Ruiz Santiago, the AUSA

in charge of the criminal division, filed a sealed motion informing

the district court that the government would not file a § 5K1.1

motion.   Two days later, Pacheco requested a continuance of the

sentencing hearing and, in a separate motion, requested an order

compelling the government to produce the evidence supporting its

refusal to file the promised § 5K1.1 motion.

             On October 3, 2011, at the sentencing hearing, the

district court denied the motion to continue the sentencing after

hearing the parties' respective positions regarding the controversy

surrounding the § 5K1.1 motion.    The district court also heard the



2
   We, of course, pass no judgment upon the value the district
court could have afforded to such a motion in the alleged
recruiter's case.

                                  -5-
defense's arguments in favor of a lenient sentence as expounded by

Assistant Federal Public Defender Joannie Plaza Martínez ("AFPD

Plaza").   As will be explained in full detail below, in the midst

of what appears to be a fast-paced and tense exchange with said

counsel, the district court asked Pacheco if she had anything to

say.   Pacheco argues that, given the back and forth between the

judge and her attorney, as well as her emotionally altered state,

she did not understand she was being addressed individually or that

she was being invited to speak on her own behalf.   She thus argues

that resentencing is required because she was not unequivocally

afforded the right to allocute.

           The district court determined that Pacheco's applicable

guideline range for sentencing was 46 to 57 months' imprisonment

and three to five years of supervised release. The district court,

however, sentenced her to 36 months' imprisonment and three years

of supervised release.    Moreover, the day after sentencing, the

judge motu propio dropped the sentence to 24 months' imprisonment

and two years of supervised release.    We take each issue in turn.

                           II. Analysis

A. The request for a continuance

           As stated above, several days before the sentencing, the

government filed a motion announcing that it would not file a

§ 5K1.1 motion. It explained that Pacheco only agreed to cooperate

once it was certain she would not have to testify, and contended


                                  -6-
that   her   previous    refusal    to     cooperate    had   resulted   in    the

government    offering     the   recruiter     a   reduced    plea,    which    he

accepted.     Two days after the motion was filed, Pacheco requested

a continuance of the sentencing hearing. Pacheco then requested an

order to compel the government to produce the information in

support of its assertion that she did not provide substantial

assistance.      The request explained that the government's new

position was contrary to everything Pacheco had agreed to with the

AUSA regarding the filing of a § 5K1.1 motion.

             At the sentencing hearing, AFPD Plaza failed to convince

the district court of the probable utility of a continuance.                  AFPD

Plaza then shifted gears and argued that, if there would be no

§ 5K1.1 downward departure, the court could consider Pacheco's

cooperation for a downward variance as supported by the arguments

set forth in the Sentencing Memorandum.3             AFPD Plaza insisted on a

continuance    so   that   she     could    better     develop   her   arguments

regarding the mitigating factors in Pacheco's case.

             In her brief before this court, Pacheco posits that she

needed the continuance to properly investigate the government's

assertions and explain why her cooperation had been substantial.

She points out that one of the four cooperating witnesses in the


3
   Pacheco had not filed the Sentencing Memorandum before the
hearing and rather informed the district court during the hearing
that she intended to file it.     The district court immediately
requested to see a hard copy of the memorandum and read it while
the hearing ensued.

                                      -7-
the recruiter's criminal case had received a sentence of seven

hours   under   the    custody   of   the     United   States    Marshals   for

committing similar conduct to hers.            Having more time to prepare

for the sentencing, she claims, would have allowed her to inform

the court of all the facts prior to sentencing.

           We review the denial of a motion to continue a sentencing

hearing for abuse of discretion and only overturn when the movant

suffered substantial prejudice.        United States v. Moore, 362 F.3d

129, 135 (1st Cir. 2004). We assess each case individually and may

consider any number of factors.        See id. (we may consider a number

of factors including "the movant's proferred [sic] reasons for

needing the continuance, the amount of time necessary for effective

preparation,     the   amount    of    time     previously      available   for

preparation, the extent to which the movant has contributed to his

predicament, the probable utility of a continuance, the extent of

the inconvenience to others of a continuance, and the likelihood of

injustice or unfair prejudice to the movant from a denial of a

continuance").

           We see no abuse of discretion in the district court's

decision to go forward with the sentencing.4           Absent the government


4
  Even though Pacheco argues in her brief that AFPD Plaza and AUSA
Martin had reached an agreement regarding the filing of a § 5K1.1
motion, Pacheco does not develop a breach of contract argument.
She instead focuses on the fact that a continuance was required
because the government's alleged volte-face caught her off guard,
and the government's stated reasons for not filing the § 5K1.1
motion were false.   During oral argument, we pressed Pacheco's

                                      -8-
actually moving for a § 5K1.1 downward departure, no amount of

information Pacheco would have gathered could have allowed the

court to grant such a departure for substantial assistance.      In

fact, during the hearing, the district court asked AFPD Plaza twice

whether she could cite to a single case that would allow it to, as

the judge put it, "factor into a 5K1," and she conceded she could

not. That is not surprising given that "[a] substantial assistance

departure can be granted only if the government moves for one."

United States v. Anonymous, 629 F.3d 68, 72 (1st Cir. 2012) (citing

Wade v. United States, 504 U.S. 181 (1992)).

           Also, the district court was aware of the fact that the

government had filed the informative motion in the recruiter's

case.   Even if it was not aware of the exact wording of the motion

or what sentences the other alleged cooperators in that case

received, the court did not abuse its discretion in not postponing

the sentencing because awareness of those details still would not

have allowed it to sentence Pacheco as if the government had

requested a downward variance for substantial assistance.   Pacheco

failed to establish the probable utility of a continuance given

that the information she sought, even if it demonstrated to the



counsel regarding the breach of contract theory.       Even though
counsel affirmed a breach of contract had taken place, he quickly
redirected the discussion to the need for a continuance in light of
the government's new position.     We will therefore restrict our
analysis to the continuance issue and not pursue the specter of a
breach of contract claim.

                                -9-
district court that Pacheco had provided substantial assistance,

would not have allowed the district court to proceed as if a

§ 5K1.1 motion had been filed. As Pacheco concedes, the only actor

that can ascertain whether the assistance was substantial enough to

warrant a § 5K1.1 motion is the government.

           Second, Pacheco cannot show that she was unable to brief

the court on her arguments regarding the appropriate sentence

because she in fact had her Sentencing Memorandum ready and the

judge was able to read it and consider it at the hearing.         At no

point did Pacheco argue that she was not able to complete her

Sentencing Memorandum on time or that she needed more time to

complete it.   Pacheco has thus failed to show that she suffered

injustice or unfair prejudice by the district court's refusal to

continue the sentencing hearing.

           Third, to the extent that Pacheco claims prejudice from

insufficient time to set the record straight about the alleged

false   statements   of   the   government   regarding   the   recruiter

benefitting from her initial reluctance to testify against him, she

is mistaken. The government stated its position in its informative

motion and Pacheco denounced its falsity both in her written

opposition and at the sentencing hearing.        Thus, she had a fair

opportunity to challenge the government's statements and vigorously

did so.   We see no abuse of discretion in the district court's




                                  -10-
decision to proceed with sentencing at that juncture.       We now

properly turn to Pacheco's challenge of the sentence.

B. The imposition of a term of imprisonment

          Pacheco argues that the district court imposed a prison

term because it was under the incorrect impression that, in the

absence of a § 5K1.1 motion, it had its hands tied and could not

consider her efforts to cooperate with the government.

          Even though it was not until recently that "we join[ed]

other circuits in holding that, in determining the appropriate

sentence within the guidelines, or in varying from the guidelines,

a sentencing court has discretion to consider the defendant's

cooperation with the government as an 18 U.S.C. § 3553(a) factor,

even if the government has not [filed a] 5K1.1 motion for a

downward departure," United States v. Landrón-Class, 696 F.3d 62,

66 (1st Cir. 2012), it is clear from the transcript of the

sentencing hearing that the district court was fully aware that, in

imposing the sentence, it had the discretion to consider Pacheco's

willingness to cooperate. The transcript indicates that, when AFPD

Plaza insisted that the court consider Pacheco's cooperation when

imposing a sentence, the district court stated more than once that

it did not feel constrained in relation to the type of information

it could consider:

          THE COURT: Argue your variance. You want me to
          vary the sentence?

          MS. PLAZA:   Of course, Your Honor.

                               -11-
THE COURT: That's what you have to concentrate
on.

MS. PLAZA: I'm going to concentrate on that,
but what I'm saying to the Court is that if
the court is going to not consider the
cooperation --

THE COURT:   I can consider everything.

MS. PLAZA: Ok.

THE COURT: But bringing heroin into the United
States is a big time crime, and she has to
serve time for that. I'm sorry.

. . . .

MS. PLAZA: Since the Court seems to be -- Your
honor, there are other factors to take into
consideration.      But  given   the   Court's
presentation at the Change fo Plea hearing, it
leads me to believe that the Court would only
consider releasing my client if a 5K motion
had been filed. I think that is of course the
Court's prerogative, but I think that's not
demanded of section 3553(a) for the minimally
sufficient sentence. And I think my client has
all the factors on her behalf. It should be
considered by the Court.

THE COURT: I looked at your Sentencing
Memorandum, and I am considering it.

. . . .

MS. PLAZA: . . . But the defendant's attempts
to cooperate can be taken into consideration.
And I cite in my memorandum cases that say
that the Court can use that information if not
for a 5K reduction, but for other --

THE COURT: You heard that I was going to
consider the variance.

(emphasis added).



                     -12-
           We think it is sufficiently clear that the district court

understood it had discretion to consider Pacheco's attempts to

cooperate and, in fact, never denied having discretion to consider

it.   But having discretion to consider something does not entitle

a defendant to force the district court to factor the issue being

considered into its final decision.       It is evident from the

transcript that, although the court was willing to impose a

sentence that was significantly lower than what the Guidelines

recommended and said it could consider the cooperation, it also

considered the charged offenses to be sufficiently serious to

warrant imprisonment.     We see no abuse of discretion in the

district court's choice to impose a term of imprisonment.

C. The opportunity to allocute

           The transcript of the sentencing hearing indicates an

escalating tension between AFPD Plaza and the district court judge

when the judge attempted to proceed with sentencing and AFPD Plaza

attempted to argue in favor of a lenient sentence for Pacheco.

Immediately before and immediately after putting an end to a fast-

paced discussion with AFPD Plaza by telling said counsel to "shut

up," the district court asked Pacheco if there was anything she




                                 -13-
wanted to say.5   The relevant portion of the hearing transpired as

follows:

           PLAZA: Well, Your Honor . . . [s]he was
           vulnerable, and she was used for this criminal
           venture. And the purpose -

           THE COURT: Listen, I've heard you enough.
           Anything you want to say, ma'am?"

           PLAZA: Your Honor, I ask the Court -

           THE COURT: I'm asking you to shut up. Anything
           you want to say, ma'am? Anything?

           THE DEFENDANT: (Shaking head from side to
           side.)

           THE COURT: Anything? [AUSA] Martin, else?

           MARTIN: Nothing, Your Honor.

           THE COURT: Very well.

           We review de novo a sentencing court's compliance with

Fed. R. Crim. P. 32(i)(4)(A).   United States v. Rivera-Rodríguez,




5
   During oral argument, we requested that the parties investigate
whether the sentencing hearing had been recorded. The government
filed a motion stating that personnel at the district court had
indicated that, when a court reporter is present, proceedings are
not recorded using FTR (ForTheRecord).     Subsequently, Pacheco's
counsel filed a motion and a copy of an email in which management
personnel at the district court told him that no FTR recording
existed, but whether or not the court reporter decided to make an
informal recording, was "a personal preference outside [their]
jurisdiction." Pacheco's counsel requested that we issue an order
to compel the court reporter who transcribed the sentencing hearing
in this case to reveal whether she had recorded the hearing. We
denied the motion. If no FTR (the only recording method authorized
to record hearings at the district court) exists because a court
reporter was present, we will only review the official transcript
of the hearing.

                                -14-
617   F.3d   581,    605   (1st   Cir.    2010)    (citing     United    States   v.

Burgos-Andújar, 275 F.3d 23, 28 (1st Cir. 2001)).

             Pursuant to Fed. R. Crim. P. 32(i)(4)(a)(ii), before

imposing     its    sentence,     a   court     must    "address   the   defendant

personally in order to permit the defendant to speak or present any

information to mitigate the sentence."                 In Green v. United States,

365 U.S. 301 (1961), the Supreme Court recognized the long history

of the common law right of allocution. It stated that, "[t]aken in

the context of its history, there can be little doubt that the

drafters of Rule 32[] intended that the defendant be personally

afforded the opportunity to speak before imposition of sentence."

Id. at 304.         Although the Supreme Court in Green reviewed a

transcript it described as being, "unlike a play, [because it] is

unaccompanied with stage directions which may tell the significant

cast of the eye or the nod of the head," the Court focused on what

the transcript explicitly indicated. Id. at 304-05. It found that

"[t]he single pertinent sentence -- the trial judge's question 'Did

you want to say something?' -- may well have been directed to the

defendant," and refused to speculate whether it was addressed to

counsel or to anyone else who may have been present at the

hearing.6    Id. at 304.


6
   The Court in Green gave significant weight to the fact that the
challenge had been raised several years after the sentencing took
place. We do not think, however, that the Court would have come
out in favor of Green had the argument been raised earlier given
the obvious weight the Court also gave to "[t]he single pertinent

                                         -15-
              The Supreme Court in Green instructed courts to, "as a

matter of good judicial administration, unambiguously address

themselves to the defendant [and to] . . . leave no room for doubt

that the defendant has been issued a personal invitation to speak

prior    to   sentencing."     Id.    at   305.     This   circuit    has    also

consistently requested that courts comply with Fed. R. Crim. P. 32

by "address[ing] the defendant[s] personally and allow[ing] [them]

to speak on all topics."       Burgos-Andújar, 275 F.3d at 29 (internal

quotation marks omitted).       We have also recognized that the right

may     be    satisfied   by   affording     defendants     the   "functional

equivalent" of what is required by the rule in question.                United

States v. Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994).              To achieve

functional      equivalency,   "the    court,     the   prosecutor,    and   the

defendant must at the very least interact in a manner that shows

clearly and convincingly that the defendant knew he had the right

to speak on any subject of his choosing prior to the imposition of

his sentence."      Id.

              Pacheco argues that she began sobbing uncontrollably

after she heard the district court state earlier in the hearing

that importing heroin into the United States is a crime that must

entail a term of imprisonment. She claims that her crying, and the

fact that she was not addressed individually, and the fact that she

was not formally informed of her right to make a statement on her


sentence."      Green, 365 U.S. at 304.

                                      -16-
own behalf, prevented her from addressing the court.             Pacheco,

however, clearly acknowledges in her brief that she was addressed

personally. Pacheco further argues that the district court did not

pause to ask her what she meant to say by shaking her head.

           While Pacheco makes several arguments in her attempt to

inject ambiguity into the transcript of the hearing, we are

unpersuaded. The transcript reflects that Pacheco was afforded the

right to speak on any topic of her choosing when the district court

addressed her personally (as she concedes) and twice, if not

thrice, asked if she wanted to say anything.               Our cases only

require that defendants be addressed personally and be invited to

speak on any topic before sentencing.          Neither the Supreme Court

nor this court has ever required that a sentencing court employ a

specific set of words to notify a defendant of his or her right to

allocute. To the extent Pacheco may be arguing that asking whether

she had anything to say is not technically an invitation to speak,

we plainly disagree and refuse to go down the semantics rabbit

hole.

           Pacheco argues she was sobbing uncontrollably and may not

have even understood what was being said to her.              She further

argues that she might have even been shaking her head from side to

side in response to something other than to the question being

posed to her.   We decline Pacheco's invitation to speculate as to

possible   alternative   meanings   of   her    actions.     Pacheco   was


                                -17-
personally asked a question and she immediately shook her head from

side to side.      Given the context, we believe the only reasonable

interpretation of that action is that she had nothing to say to the

court in response to its question, "Do you have anything to say,

ma'am?"     Even    though   it   would   have   been   ideal   given   the

circumstances, we do not think it was necessary for the court to

elicit or even force a verbal response from Pacheco. Further, once

she declined to speak, the district court had no obligation to

insist that she seize the opportunity to speak.         In sum, we find no

merit to Pacheco's claim that she was not afforded the right to

allocute.

                             III. Conclusion

            For the reasons set forth above, we affirm the district

court's sentence.

            Affirmed.




                      -Dissenting Opinion Follows-




                                   -18-
             LIPEZ, Circuit Judge, Dissenting. Although I concur with

the majority that the district court acted within its discretion by

denying Pacheco's motion for a continuance, I conclude that Pacheco

was deprived of her opportunity to allocute before sentencing.         I

would therefore vacate the sentence and remand for a resentencing

that would give her that opportunity.

             The Supreme Court has emphasized both the historical

provenance and the substantial importance of permitting "[the]

defendant, personally, to have the opportunity to present to the

court his plea in mitigation."        Green v. United States, 365 U.S.

301, 304 (1961).     In the words of the Seventh Circuit,

             [w]ith historical roots in the common law, the
             opportunity to plead for mercy is another
             provision in a procedural body of law designed
             to enable our system of justice to mete out
             punishment in the most equitable fashion
             possible, to help ensure that sentencing is
             particularized    and   reflects    individual
             circumstances.

United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991); see

also United States v. Burgos-Andújar, 275 F.3d 23, 28 (1st Cir.

2008) (noting "our long tradition of giving all defendants the

right to directly address the court and plead for mercy"). We have

accordingly described the right of allocution as "sacrosanct."

United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st Cir. 2008).

Therefore,     "[t]he   burden   of   complying   with   the   right   of

allocution[] rests with the court and not the defendant," and the

court bears the responsibility of "mak[ing] sure the defendant

                                  -19-
understands that [she] has the right to say anything [she] wants

before sentence is imposed."    United States v. Vasquez, 216 F.3d

456, 458-59 (5th Cir. 2000).

           Here, the record shows that for much of the sentencing

hearing, the district court and defense counsel engaged in a

contentious exchange regarding a number of issues.      The majority

notes the "escalating tension" between the trial judge and counsel,

compounded by counsel's confused and repetitive presentation and

the trial judge's increasing impatience with her arguments. Toward

the end of the hearing, the district court's vexation reached its

peak.   In response to counsel's concern with the court "informally

[telling] the client the Court is going to impose jail time," the

trial judge said: "Wait a minute.      Do you honestly think that a

case involving heroin should be allowed without jail time?"    After

this statement was interpreted for her, Pacheco asserts (and the

government does not dispute) that she began weeping.7

           This fraught dialogue culminated in the passage the

majority quotes, where the district court told counsel that he had

"heard [her] enough" before asking Pacheco whether she had anything

she wanted to contribute.      When counsel persisted, the court


7
   As the majority notes, we cannot listen to the recording of the
sentencing hearing, which might have given us a better feel for the
atmospherics of the exchanges.     But the transcript speaks for
itself. To the extent that we have any doubts about the impact of
the words on the page on Pacheco's right to allocute, we must
resolve them in Pacheco's favor.    See United States v. De Alba
Pagán, 33 F.3d 125, 129 (1st Cir. 2009).

                                -20-
"ask[ed her] to shut up" before turning to Pacheco and inquiring

once again whether she had anything to say.

            On the basis of the exchanges between the judge and the

defendant, the majority concludes that "Pacheco was personally

asked a question and she immediately shook her head from side to

side.      Given   the   context,   we     believe   the   only   reasonable

interpretation of that action is that she had nothing to say to the

court in response to its question, 'Do you have anything to say,

ma'am?'"

            I strongly disagree with the majority's evaluation of the

context of the supposed allocution.         One must look closely at the

three inquiries relied upon by the majority:

            First Inquiry:

            THE COURT:     Listen, I've heard you enough [referring to

Pacheco's attorney].     Anything you [meaning the defendant] want to

say, ma'am?

            Second Inquiry:

            PLAZA:   Your Honor, I ask the Court --

            THE COURT:      I'm asking you [referring to Pacheco's

attorney] to shut up. Anything you [meaning the defendant] want to

say, ma'am?    Anything?

            THE DEFENDANT:    (Shaking head from side to side.)

            Third Inquiry:

            THE COURT:     Anything?     [AUSA] Martin, else?


                                    -21-
             MARTIN:    Nothing, Your Honor.

             THE COURT:      Very well.

             So   far   as   we     can   tell    from    the      transcript,    these

exchanges occur in a matter of seconds.               In the first inquiry, the

court prefaces its invitation to the defendant to speak with the

admonition to Plaza that he has heard enough from her.                           In the

second inquiry, the court prefaces its invitation by literally

asking her attorney to "shut up."                The defendant responds to this

invitation by shaking her head from side to side.                          The third

inquiry     consists    of    one    word    from     the    court,     "Anything?",

apparently in response to the defendant shaking her head.                        But it

is unclear from the transcript whether this third inquiry was

directed to the defendant or the prosecutor.                    Since it is Martin

who responds "Nothing, Your Honor," it appears that the inquiry was

directed at him.

             In a formal sense, the judge invited the defendant to

speak before he imposed a sentence.                But it is hard to imagine a

more uninviting invitation. The twenty-year old defendant, already

in tears, has just heard the judge tell her attorney in rapid

succession that he has "heard you enough" and "shut up" before she

shakes her head from side to side, signaling that she has nothing

to   say.     Yet   the      majority     says     that     "the    only   reasonable

interpretation" of the defendant shaking her head "is that she had

nothing to say to the court in response to its question."


                                          -22-
             To the contrary, I believe that the far more reasonable

interpretation of this scenario is that the defendant, even if she

did have something to say to the judge, was so intimidated by his

display of anger and impatience with her attorney that she could

not summon the courage to speak.             The judge and the defendant did

not "interact in a manner that shows clearly and convincingly that

the defendant knew [she] had a right to speak on any subject of

[her] choosing prior to the imposition of sentence." United States

v. De Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994) (emphasis

added).      To the extent that there is any uncertainty about the

defendant's       state   of   mind   at   this     critical   juncture,      those

"[d]oubts should be resolved in the defendant's favor."                 Id.     The

majority has failed to do that.

             It is all too easy for judges, enveloped in the courtroom

by the authority of their office, to underestimate the impact of

their demeanor and words on the parties before them.                That is why

judges, even when provoked by counsel, must always measure their

manner and their words carefully.             That did not happen here, with

serious consequences for the defendant's right to allocute.

             As    the    Second   Circuit    has    explained,   the   Rule     on

allocution "demands that each defendant be allowed a meaningful

right   to    express      relevant   mitigating      information    before     an

attentive and receptive district judge."              United States v. Li, 115

F.3d 125, 133 (2d Cir. 1997). Thus, "creat[ing] an atmosphere that


                                       -23-
obviously rendered it difficult for [the defendant] to present an

effective and potentially persuasive allocution" may result in

deprivation of the right.       Id.; see also Barnes, 948 F.2d at 331

("Because the sentencing decision is a weighty responsibility, the

defendant's   right   to   be   heard    must   never   be   reduced   to   a

formality."); United States v. Sparrow, 673 F.2d 862, 865 (5th Cir.

1982) ("Even where the judge satisfies the specifics of Rule 32, we

must still assure ourselves that the compliance was not merely in

form.").   Here, there was at best only formal compliance with Rule

32.   In substance, however, the court's handling of the sentencing

hearing created a hostile atmosphere that was incompatible with the

meaningful exercise of the defendant's right to allocute.

           I wish to be clear on one final point. My dissent should

not be read as a criticism of the trial judge's conduct toward

Pacheco generally.    Indeed, he displayed marked solicitude toward

her in other contexts, such as at the change of plea hearing, and

in urging the government to offer her a downward departure. He was

unquestionably sympathetic to her plight as a young mother of two,

with a third child on the way.          His ire was directed at counsel,

not Pacheco herself. His intemperate words were brief, a momentary

lapse of control. But that lapse came at an inopportune time, with

serious consequences for the defendant's right to speak to the

court before sentencing.




                                   -24-
              Because    I    cannot     agree   that     Pacheco     was   given    a

meaningful opportunity to allocute, I would vacate her sentence and

remand   so    that     she   can   be   sentenced   in    compliance       with   the

strictures     of     Rule    32(i)(4)(A)(ii).          For   these    reasons,      I

respectfully dissent.




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