                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4438


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DENNIS CARTER,

                     Defendant - Appellant.



Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Joseph R. Goodwin, District Judge. (2:17-cr-00198-2)


Submitted: April 29, 2019                                         Decided: July 22, 2019


Before GREGORY, Chief Judge, THACKER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Paul F. Enzinna, ELLERMAN ENZINNA PLLC, Washington, D.C., for Appellant.
Michael B. Stuart, United States Attorney, John J. Frail, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Pursuant to a plea agreement, Dennis Carter pled guilty to conspiracy to distribute

100 grams or more of heroin, in violation of 21 U.S.C. § 846 (2012). The district court

designated Carter a career offender and sentenced him to 188 months’ imprisonment, the

bottom of the career offender Sentencing Guidelines range. Carter appeals, seeking

resentencing because he was not afforded an opportunity to allocute and because he alleges

that he was improperly designated a career offender. For the reasons that follow, we vacate

Carter’s sentence and remand for further proceedings.

        Under Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure, a district

court must “address the defendant personally in order to permit the defendant to speak or

present any information to mitigate the sentence.” Because Carter failed to object in the

sentencing court to the denial of his right to allocute, our review is for plain error. United

States v. Engle, 676 F.3d 405, 424 (4th Cir. 2012). To establish plain error, Carter must

show:

         (1) there is an error; (2) the error is clear or obvious, rather than subject to
        reasonable dispute; (3) the error affected [his] substantial rights, which in the
        ordinary case means it affected the outcome of the district court proceedings;
        and (4) the error seriously affects the fairness, integrity or public reputation
        of judicial proceedings.

Id. (brackets omitted).

        Carter satisfies the first two prongs of the plain error test. It is undisputed that the

district court failed to provide Carter with an opportunity to allocute. Thus, there was error

that was plain. United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993). If Carter can

show “the ‘possibility remain[s]’ that [he] could have received a lesser sentence had he

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been permitted to allocute at [sentencing], he has sufficiently shown that he was prejudiced

by the denial of allocution,” and we will “exercise our discretion to notice the error.”

United States v. Muhammad, 478 F.3d 247, 251 (4th Cir. 2007) (quoting United States v.

Cole, 27 F.3d 996, 999 (4th Cir. 1994)).

       Carter received a sentence at the bottom of the advisory career offender Guidelines

range. He argues that, had he been afforded an opportunity to allocute, he might have been

able to convince the court to sentence him below this range. As Carter concedes, his

attorney sought a downward variance, arguing that, inter alia, Carter’s criminal history

category and the career offender enhancement overstated the seriousness of his prior

offenses. Counsel emphasized that Carter’s prior offenses involved small drug quantities

and he received probationary sentences.

       In denying a downward variance, the district court acknowledged counsel’s

arguments, but noted that, after repeatedly being caught and committing drug trafficking

crimes involving smaller quantities of controlled substances, Carter committed the instant

offense, which involved the distribution of a significant quantity of heroin. The district

court was thus well aware of the nature of Carter’s prior offenses but was concerned with

his recidivism and the fact that the instant offense was a substantial escalation in his prior

drug distribution activities.

       Nevertheless, the “possibility remains” that Carter would have received a shorter

sentence had he been given the opportunity to allocute. Muhammad, 478 F.3d at 251. In

particular, Carter may have been able to prevail upon the court to sentence him below the

Guidelines range by asserting that he played a lesser role in the conspiracy than his

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coconspirators, or he could have explained his predicate offenses in a manner that

convinced the court that he should not be sentenced as a career offender. See Cole, 27 F.3d

at 999 (finding that defendant demonstrated prejudice from denial of allocution because he

might have been able to reduce his offense level by showing that he should be held

accountable for lesser drug quantity or had accepted responsibility). Even though counsel

argued unsuccessfully for a downward variance, “[t]he most persuasive counsel may not

be able to speak for a defendant as the defendant might, with halting eloquence, speak for

himself.” Green v. United States, 365 U.S. 301, 304 (1961). We therefore exercise our

discretion to notice the error in failing to provide Carter an opportunity to allocute.

       Accordingly, we vacate Carter’s sentence and remand for a new sentencing hearing

at which Carter is afforded an opportunity to allocute before sentence is imposed. Because

we are vacating Carter’s sentence, we decline to address Carter’s claim that his § 846

conviction does not meet the definition of a controlled substance offense for purposes of

the career offender Guidelines. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

                                                              VACATED AND REMANDED




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