                    FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 14-50113
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          3:13-cr-07085-
                                                     GT-1
 ANTONIO URRUTIA-CONTRERAS,
 AKA Antonio Urrutia,
              Defendant-Appellant.                  OPINION


         Appeal from the United States District Court
            for the Southern District of California
      Gordon Thompson, Senior District Judge, Presiding

                   Argued and Submitted
           February 5, 2015—Pasadena, California

                      Filed April 10, 2015

Before: Ronald M. Gould and Andrew J. Kleinfeld, Circuit
Judges, and Robert W. Gettleman, Senior District Judge.*

                 Opinion by Judge Gettleman




  *
    The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by
designation.
2          UNITED STATES V. URRUTIA-CONTRERAS

                           SUMMARY**


                           Criminal Law

    Vacating a sentence imposed for violation of the terms of
supervised release and remanding for resentencing, the panel
held that Fed. R. Crim. P. 32, which requires the district court
to solicit the government’s position with respect to
sentencing, should be used to “fill in the gap” in Fed. R.
Crim. P. 32.1, which is silent as to whether the government
must be given an opportunity to make a statement with
respect to revocation sentencing.

    The panel held that the district court erred by failing to
give the government an opportunity to make such a statement
during the sentencing portion of the defendant’s revocation
proceeding, and that the error was not harmless.


                             COUNSEL

Kent D. Young (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter
and Lawrence E. Spong (argued), Assistant United States
Attorneys, San Diego, California, for Plaintiff-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         UNITED STATES V. URRUTIA-CONTRERAS                3

                        OPINION

GETTLEMAN, Senior District Judge:

    Defendant-appellant Antonio Urrutia-Contreras appeals
from a 15 month sentence for violation of the terms of his
supervised release, which was imposed by the United States
District Court for the Southern District of California to run
consecutively to a 12 month sentence for illegal re-entry in
violation of 8 U.S.C. § 1326. We have jurisdiction under
28 U.S.C. § 1291, and vacate the consecutive sentence and
remand.

                             I.

    The procedural history in this case is unusual. In
September 2011, after pleading guilty to a charge of illegal
re-entry in the District of Arizona, defendant was sentenced
to 15 months of imprisonment followed by a 3 year period of
supervised release. That sentence was based on a Guideline
offense level (after a fast-track reduction) of 10 and a
criminal history of IV, resulting in an advisory Guideline
sentence of between 15 and 21 months of imprisonment. The
court sentenced defendant to the low end of the Guideline
range.

    As the government now concedes, however, the offense
level for that sentence was erroneously computed because it
was increased by 8 points based on a prior aggravated felony,
pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Defendant’s prior
conviction, in fact, was for a misdemeanor, not a felony, and
his correct offense level should have been 2 with a criminal
history of I, resulting in an advisory Guideline sentence of
between 0 and 6 months. Because this error was not
4        UNITED STATES V. URRUTIA-CONTRERAS

discovered until after defendant completed his custodial
sentence on April 1, 2012 (and was subsequently deported),
defendant served that sentence and was on supervised release
at the time he attempted to re-enter the United States illegally
in southern California on September 13, 2013.

    In November 2013, jurisdiction for defendant’s
supervised release was transferred to the Southern District of
California and defendant was charged in an information in
that district with attempted illegal re-entry, to which he
pleaded guilty on October 31, 2013. On March 5, 2014, the
district court held both a sentencing hearing on defendant’s
guilty plea to attempted illegal re-entry and a revocation
hearing concerning his admitted violation of the terms of his
supervised release. The court sentenced defendant to 12
months of incarceration on the illegal re-entry charge (from
which defendant does not appeal) and heard argument from
defense counsel with respect to what defendant’s sentence
should be for violating the terms of supervised release by his
attempted re-entry.

    Defense counsel argued that a 3 month consecutive
sentence was appropriate, for a total of 15 months in custody,
noting that defendant had already served more time than he
likely would have had the Guideline miscalculation not
occurred in 2011. The court also heard defendant’s personal
allocution, but did not solicit or otherwise ask for the
government’s sentencing recommendation. After noting that
the Guideline range for the violation was 12 to 18 months,
and citing United States v. Simtob, 485 F.3d 1058 (9th Cir.
2007), the court ordered a sentence of 15 months to run
consecutively to the 12 months imposed for attempted illegal
re-entry. When imposing the 15 month consecutive sentence,
the court stated that it had “considered the breach of trust
         UNITED STATES V. URRUTIA-CONTRERAS                  5

which even though it was not the correct sentence, [the
Arizona judge] did give [defendant] the low end of the
Guideline range. So certainly, she was putting a substantial
amount of trust in him at that time.” This resulted in a total
custodial sentence for the attempted illegal re-entry and
consequent violation of the terms of supervised release of 27
months.

    Following the sentence, defense counsel immediately
objected “to the procedural and substantive
unreasonableness” of the sentence, arguing that the court “did
not ask the government to give its recommendation and it did
not acknowledge probation’s 12 month recommendation.”
The district judge summarily rejected that objection, stating,
“Well, you see, it’s the court’s judgment, not the U.S.
Attorney. This is not the U.S. Attorney’s decision, it’s the
court’s decision.”

    Defendant bases his appeal on two grounds. First,
defendant argues that the district court committed error by
violating Fed. R. Crim. P. 32.1, in failing to “provide an
attorney for the government an opportunity to speak
equivalent to that of the defendant’s attorney,” as required by
Criminal Rule 32. Second, defendant argues that the sentence
is objectively unreasonable in light of the incorrect sentence
imposed in 2011 and other factors articulated in 18 U.S.C.
§ 3553(a). Because we agree that the district court violated
Criminal Rule 32.1, we vacate the sentence and remand the
case with directions to resentence defendant consistent with
this opinion. We do not reach defendant’s argument that the
15 month consecutive sentence was unreasonable.
6         UNITED STATES V. URRUTIA-CONTRERAS

                                 II.

     We review the district court’s compliance with the
Federal Rules of Criminal Procedure de novo. United States
v. Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010). We
begin by noting that Rule 32.1 primarily governs the
procedures at revocation proceedings. United States v.
Leonard, 483 F.3d 635, 638–39 (9th Cir. 2007). Although
Rule 32.1 grants a defendant the right to make a statement, it
is silent as to whether the government must also be given an
opportunity to do so. Rule 32, which governs sentencing
proceedings, however, provides that “[b]efore imposing
sentence, the court must . . . provide an attorney for the
government an opportunity to speak equivalent to that of the
defendant’s attorney.” Fed. R. Crim. P. 32(i)(4)(A)(iii).

     This court has held in a number of cases that where Rule
32.1 is silent with respect to the matters that must be
considered by a district court in imposing a sentence for
violating the terms of supervised release, Rule 32 may be
used to “fill in the gap” in Rule 32.1. Thus, in United States
v. Whitlock, 639 F.3d 935, 940 (9th Cir. 2011), this court held
that the provisions of Rule 32(e)(3), permitting district courts
to refuse to disclose the probation officer’s sentencing
recommendations, should “fill in the gap” in Rule 32.1 with
respect to revocation proceedings. As noted in Whitlock, this
conclusion is consistent with our ruling in United States v.
Carper, 24 F.3d 1157 (9th Cir. 1994), in which the court
“filled the gap” in Rule 32.1 (as then written) to include the
defendant’s right to allocute at a revocation proceeding.1
Whitlock, 639 F.3d at 939–40.

  1
    Rule 32.1 was amended in 2005 to provide for a right of allocution
during revocation proceedings. Fed. R. Crim. P. 32.1(b)(2)(E).
           UNITED STATES V. URRUTIA-CONTRERAS                             7

    Like the defendant’s right to allocute and the probation
officer’s recommendation, the government’s position with
respect to the sentence to be imposed for violating the
conditions of supervised release is an important factor for the
sentencing court to consider and include in its reasoning.
Particularly since the landmark decision in United States v.
Booker, 543 U.S. 220 (2005), and its progeny, the Supreme
Court and the circuit courts have emphasized the requirement
that district judges consider and discuss the sentencing factors
contained in the Sentencing Guidelines and 18 U.S.C.
§ 3553(a) when imposing a sentence.2

    This requirement cannot be met if the district court fails
to solicit the government’s position, whether at a post-
conviction sentencing or at a revocation proceeding. We
have held that the failure to permit the government to speak
at a post-conviction sentencing is plain error. United States
v. Waknine, 543 F.3d 546 (9th Cir. 2008). As explained by
the court:




   2
     See, e.g., Rita v. United States, 551 U.S. 338, 356 (2007) (“The
sentencing judge should set forth enough [reasons for the imposed
sentence] to satisfy the appellate court that he has considered the parties’
arguments . . . .”); Gall v. United States, 552 U.S. 38, 49–50 (2007)
(“[A]fter giving both parties an opportunity to argue for whatever sentence
they deem appropriate, the district judge should then consider all of the
§ 3553(a) factors to determine whether they support the sentence
requested by a party.”); Peugh v. United States, __ U.S. __, 133 S. Ct.
2072, 2080 (2013) (“The district court must then consider the arguments
of the parties and the factors set forth in § 3553(a).”); see also United
States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006) (“[D]istrict courts
must provide specific reasons for their sentencing decisions, such that the
record on appeal demonstrates explicit or implicit consideration of the
sentencing factors set forth in § 3553(a).”).
8         UNITED STATES V. URRUTIA-CONTRERAS

        [T]he plain language of Rule 32 appears to
        contemplate that the government, like the
        defendant, will have an opportunity for a
        speaking role at the sentencing hearing before
        the district court has made a decision on the
        sentence. This is what we consider to be the
        normal reading of Rule 32, which here
        establishes what the court must do before
        imposing sentence and which provides that
        the opportunity of the government to speak
        shall be ‘equivalent to that of the defendant’s
        attorney.’ Thus, it cannot make sense under
        this rule to have the defendant speak and then
        the court announce its sentence without letting
        the government speak responsively. The
        district court, therefore, plainly erred when it
        permitted Waknine and his counsel to speak
        but did not give the government an
        opportunity to speak before imposing a
        sentence of 121 months of imprisonment.

Id. at 553.

    We hold that this court’s rationale in Waknine applies to
a revocation proceeding under Rule 32.1, thus requiring the
district court to solicit the government’s position with respect
to sentencing for violation of the terms of supervised release.
It may appear irregular for a court to make a decision as
important as imposing a sentence of incarceration without
soliciting the position of all parties. After the court has heard
arguments from the defense, and considered a
recommendation by the probation officer in the violation
report, the imposition of a sentence without hearing the
government’s recommendation may create the appearance of
          UNITED STATES V. URRUTIA-CONTRERAS                   9

the court standing in for the government, calling into question
the impartiality of the sentencing court.

    Just as the government must be given the opportunity to
disagree with a defendant’s or a probation officer’s
sentencing recommendation, the government must be given
the opportunity to indicate agreement. Even silence in the
face of a well-articulated defense argument for a particular
sentence may convey the message to the sentencing court that
the government has no objection to, or even agrees with, the
recommended sentence. This is an important factor that the
district court must consider, although, of course, there is no
requirement that the district court agree with that position.

    In the instant case, the district judge’s comment that it
was the court’s decision, and not the U.S. Attorney’s, could
be applied as equally to the defendant’s position on
sentencing as to the government’s. As noted by defendant in
his submissions on appeal, the parties’ positions may be even
more important in a revocation proceeding governed
primarily by Rule 32.1 than in an original sentencing
proceeding governed by Rule 32, because revocation
proceedings do not include extensive presentence
investigation reports and rarely have the benefit of extensive
briefing or written sentencing positions submitted before the
revocation proceeding itself. Indeed, the only time the
district court hears from the government in such cases is
usually at the revocation proceeding.

    We also conclude that the error was not harmless. We
have held that where the defendant is denied the right to
speak at sentencing, there is prejudice if the district court had
discretion to impose a lower sentence. See, e.g., United
States v. Gunning, 401 F.3d 1145, 1147–48 (9th Cir. 2005).
10       UNITED STATES V. URRUTIA-CONTRERAS

The parties do not dispute that the district court had such
discretion here. We hold that the same rule applies here,
where the government was not invited to speak, in light of
our discussion above noting that government support can
add substantially to the persuasiveness of a defendant’s
sentencing argument. See also United States v. Whitney, 673
F.3d 965, 973 (9th Cir. 2012). Also, we said in Waknine,
applying plain error review, that there was no showing that a
substantial right had been affected in part because the
government in that case had submitted a sentencing
memorandum before the post-conviction sentencing hearing.
543 F.3d at 553–54. As we observed above, revocation
proceedings do not typically involve written sentencing
positions submitted before the hearing.

                            III.

    For the foregoing reasons, we conclude that the district
court erred by failing to provide the government with an
opportunity to make a statement during the sentencing portion
of defendant’s revocation proceeding. We therefore vacate
the district court’s consecutive 15 month sentence and
remand the case with directions to resentence defendant
consistent with this opinion.

     VACATED and REMANDED.
