                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                         18-3264
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                  NICHOLAS MASON,

                                                               Appellant
                                     ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-09-cr-00129-001)
                       Honorable J. Curtis Joyner, District Judge
                                   ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                    June 28, 2019

   BEFORE: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges

                                   (Filed: July 26, 2019)
                                     ______________

                                       OPINION*
                                     ______________

GREENBERG, Circuit Judge.



____________________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                 I.     INTRODUCTION

       This matter comes on before this Court on an appeal by defendant-appellant

Nicholas Mason, challenging a sentence the District Court imposed on him on September

25, 2018, for a violation of the conditions of supervised release to which the Court had

sentenced him earlier. Though Mason does not contend that the sentence from which he

appeals was illegal, he does urge that the Court imposed the sentence in a procedurally

flawed manner because it deprived him of his right of allocution at the sentencing as

required by Rule 32.1 of the Federal Rules of Criminal Procedure. For the reasons we

state below, we conclude that the Court did not deprive Mason of his allocution right and

thus we will affirm the sentence.1



                           II.       FACTUAL BACKGROUND

       In this opinion we rely on the essentially undisputed background facts that the

parties proffered in their briefs. Mason was convicted in the District Court for felony

possession of a firearm. The Court sentenced him to a 120-month custodial term to be

followed by five years of supervised release. After he fully served his custodial sentence

and the period of supervised release had started, he tested positive for the use of

marijuana and cocaine within a few months, and accordingly violated the conditions of

his supervised release. Consequently, the government charged him with violation of the

conditions of his supervised release. The charge for the violation was resolved on a


1
  The District Court had jurisdiction under 18 U.S.C. §§ 3231, and 3583(e), and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              2
consensual basis when the Court ordered Mason to make a 60-day stay at a Residential

Reentry Center as part of a modification of the condition of his supervised release. But

the matter did not stay resolved because at the Center Mason threatened the director and

was expelled, thus again violating the conditions of his supervised release.

       Despite reservations from both the government and the probation officer, the

District Court decided to give Mason a “last chance” to redeem himself, App. 30, and

modified his supervised release to include nine months of home confinement for the

second violation. The order restricted Mason to his residence “at all times except for

employment, religious practice, counseling, medical appointments and for the care of his

girlfriend (expecting mother)” for the duration of his home confinement. App. 36.

Nevertheless, Mason was soon back in Court because he again violated the conditions of

his supervised release, this time for lying to a probation officer and leaving his residence

for unapproved purposes. In one instance, Mason claimed to be at his place of

employment even though he had been suspended from the employment due to allegations

that he had engaged in sexual harassment. Mason stipulated to having committed the

lying violation, an offense that carried a Guidelines sentencing range of 8 to 14 months.

       During the revocation hearing, the government asked for an above-Guidelines

sentence of 36 months, on account of Mason’s recidivism. The Court addressed Mason

stating that:

       Mr. Mason, sir, you have the right of allocution, sir, the right to address this
       Court, to basically tell me anything that you want me to hear this morning
       before I impose sentence on you. What do you have to say for yourself?



                                              3
App. 77-78. After the Court challenged the government on its request for an above-

Guidelines sentence the Court asked Mason, “[n]ow tell me why I shouldn’t give you a

big hit as opposed to within the guideline range?” App. 79. The Court then essentially

rejected Mason’s arguments for leniency and imposed a 14-month custodial sentence on

him at the upper end of the Guidelines range for this violation. Mason has appealed from

that sentence.



                             III.    STANDARD OF REVIEW

       Mason concedes that he did not raise his deprivation of the right to allocute

argument in the District Court. Moreover, he acknowledges that the Court’s alleged error

is subject to plain-error review. See Fed. R. Crim. P. 52(b) (“Plain Error. A plain error

that affects substantial rights may be considered even though it was not brought to the

court’s attention.”). Indeed, in United States v. Adams, we specifically held that

Supreme Court precedents “compelled [us] to arrive at the conclusion that [a] claim of

error [under the right of allocution] is subject to Rule 52(b) plain error analysis” when the

claim was not raised in the district court. 252 F.3d 276, 284 (3d Cir. 2001).

       For there to be reversible plain error “there must be (1) an error; (2) that is plain;

(3) that affects substantial rights; and (4) which seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Tai, 750 F.3d 309, 313-14

(3d Cir. 2014) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544,

1549 (1997)). “If [the first] three of these conditions are met, we ‘ha[ve] [the] authority

to’ correct the District Court, ‘but [we are] not required to do so,’ because [the Supreme

                                               4
Court] makes clear that we should exercise our discretion to correct the error only if it

‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”

Adams, 252 F.3d at 285 (quoting United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct.

1770, 1778-79 (1993)). “[I]n order for an error to ‘affect substantial rights’ under the

third prong of the [plain-error] test, the error must have been ‘prejudicial’—in other

words, ‘[i]t must have affected the outcome of the district court proceedings.’” Adams,

252 F.3d at 285 (quoting Olano, 507 U.S. at 734, 113 S.Ct. at 1778).



                                    IV.    DISCUSSION

       Federal Rule of Criminal Procedure 32.1(b)(2)(E) requires a court to provide

defendants with “an opportunity to make a statement and present any information in

mitigation” at a revocation hearing. Although this rule is not as explicit as Federal Rule

of Criminal Procedure 32(i)(4)(ii), which governs sentencing and commands a court to

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

information to mitigate the sentence[,]” we have held that the right of allocution as

codified in Rule 32 dealing with sentencing after a conviction is fully extended to

revocation hearings. United States v. Plotts, 359 F.3d 247, 250 (3d Cir. 2004).

       Though “the right of allocution is not constitutional, nonetheless it is ancient in

origin, and it is the type of important safeguard that helps assure the fairness, and hence

legitimacy, of the sentencing process.” Adams, 252 F.3d at 288 (citations omitted). “The

most persuasive counsel may not be able to speak for a defendant as the defendant might,

with halting eloquence, speak for himself.” Id. at 280 (quoting Green v. United States,

                                              5
365 U.S. 301, 304, 81 S.Ct. 653, 655 (1961)). “[A] defendant is automatically entitled to

resentencing if the trial court violates the defendant’s right of allocution[.]” Id. at 281.

       Mason claims that the District Court violated his right of allocution because it

impermissibly limited the scope of arguments that he wished to present to the Court in

mitigation. He asserts that he wanted to argue that his violation of the conditions of

supervised release was not serious, as the unaccounted-for times when he violated the

conditions of his home confinement were for the purposes of visiting his girlfriend, which

was permitted conduct under the Court’s home confinement order. As such, he argues

that he could have asked the Court to consider a sentence at the lower end of the

Guidelines range or for a downward variance. Mason argues that but for the Court’s

procedure at the revocation hearing, he could have fully presented his allocution

arguments and persuaded the Court to impose a lighter sentence.

       Before we examine Mason’s claim in detail, we first note that contrary to what he

argues, we never have held that a district court could violate a defendant’s right of

allocution, even after explicitly and unquestionably addressing the defendant directly and

affording him a full opportunity for allocution as the District Court did here. All of our

precedents that Mason cites in which we found a violation of the right to allocution—

Adams, Plotts, United States v. Chapman, 915 F.3d 139 (3d Cir. 2019), United States v.

Moreno, 809 F.3d 766 (3d Cir. 2016), and United States v. Paladino, 769 F.3d 197 (3d

Cir. 2014)—involved broad denials of a defendant’s opportunity for allocution in the first




                                               6
instance.2 While it would be an unusual case in which we hold that a district court erred

because the allocution that it allowed might be characterized as “inadequate,” we do not

doubt that it would be possible for a district court to violate a defendant’s right of

allocution during a sentencing proceeding by confining the exercise of that right. But

Mason has not persuaded us that this is such a case.

       Mason focuses on two arguments in claiming that the District Court violated his

right of allocution. First, he argues that the Court’s statement—“[n]ow tell me why I

shouldn’t give you a big hit as opposed to within the guideline range[,]” App. 79—

forbade him from arguing for a downward variance. Second, he argues that the Court’s

questioning of him during his allocution prevented him from presenting his mitigating

arguments, and, instead, forced him to defend himself against aggravating factors

presented by the government and by the Court.

       Mason characterizes the District Court’s conduct during the proceeding out of

context. As we noted above, earlier in the revocation hearing, before Mason’s allocution,

the Court took issue with the government’s request for an above-Guidelines sentence, and

specifically challenged the government by asking, “[t]ell me why it’s three years instead


2
  In Adams, the district court failed to address the defendant directly. 252 F.3d at 278. In
Chapman, the district court erroneously denied the defendant’s request for a continuance
in order to have his family present and provide mitigating testimony, even after the court
found that the defendant was not at fault for not knowing the hearing date. 915 F.3d at
146. In Moreno, we held the allocution to be improper because the district court allowed
the prosecutor to cross-examine the defendant after his allocution. 809 F.3d at 778. In
Paladino and Plotts, the defendants were not offered an opportunity for allocution at all.
769 F.3d at 202; 359 F.3d at 248. In each of these cases, it did not matter what
arguments the defendants could have or did present to the district courts; the structural
defects made the allocutions themselves, or the lack thereof, improper.
                                              7
of within the guidelines or 14 months.” App. 72. Indeed, the Court explicitly discounted

the government’s argument by asking, “[i]s there anything else that the defendant did

other than tell lies? Because lying is a common occurrence with people on home

confinement, is that correct, the ones that violate?” App. 54-55. The Court then directed

the government to “put on some evidence about some other conduct, because what you’re

asking for is a significant sentence over and beyond the Sentencing Guidelines for a

violation in the C category. And they gave that C category for one reason. It’s not the

worst offense that this individual can commit.” App. 55.

       Examining the totality of the circumstances, we do not read the Court’s “big hit”

statement to Mason during his allocution as prohibiting him from making an argument

for a downward variance—it was worded in the exact same fashion as the Court’s earlier

question to the government, and the Court’s statement served as a reminder to Mason of

the arguments the government made that he might wish to address. This sort of back-

and-forth banter is not unusual in an adversarial proceeding.

       Mason, to support his argument that the Court made a reversible error when it

made its “big hit” statement by violating his right to allocution, cites two cases from other

courts of appeals, United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. 2012),

abrogated on other grounds by United States v. Bustamante-Conchas, 850 F.3d 1130

(10th Cir. 2017), and United States v. Sarno, 73 F.3d 1470 (9th Cir. 1995), as authority.

But we are not persuaded by either case. In fact, we do not find that Mendoza-Lopez

supports Mason’s claim. Mason focuses on Mendoza-Lopez’s conclusion that “[t]he

district court did plainly err, however, by inviting Mendoza–Lopez to address only

                                             8
‘where within [the Guidelines] range this Court should sentence.’” 669 F.3d at 1152.

However, the district court in Mendoza-Lopez made that comment as part of its invitation

to the defendant to make his allocution. Id. at 1150. Furthermore, Mendoza-Lopez also

held that the district court’s statement at the start of its invitation, “[i]t’s the Court[’s]

intention to sentence within that Guideline range[,]” was not plain error. See id. at 1150,

1152. As such, Mendoza-Lopez was concerned with the unequivocal nature of the

district court’s statements when inviting the defendant to present his allocution,

effectively limiting him to make only arguments in support of a within-Guidelines

sentence.

       Here, however, the District Court broadly invited Mason “to basically tell me

anything that you want me to hear this morning before I impose sentence on you.” App.

78. Moreover, its later “big hit” statement was more akin to the pronouncement of

intention in Mendoza-Lopez as opposed to an unequivocal limitation on Mason’s

arguments. Finally, we point out that Mendoza-Lopez held that the court did not commit

reversible error in allowing the allocution. 669 F.3d at 1153.

       In Sarno, the Court of Appeals for the Ninth Circuit discussed the allocution issue

in considerable detail but did not clearly articulate the standard for reversal on the basis

that the district court infringed that right. See 73 F.3d at 1503-04. The court appears to

hold that the district court committed reversible error because it somehow intimidated the

defendant. See id. at 1503 (“We refuse to countenance such court-inspired reticence and

therefore hold that the district court denied Mr. Nash his right of allocution.”). Some

defendants, of course, are intimidated simply by the circumstance of being in court.

                                                9
Additionally, like the district court in Mendoza-Lopez, the district court in Sarno invited

the defendant to show “what would be the appropriate sentence within that range[,]” id., a

question which the District Court did not ask here. Finally, Sarno was based on a

harmless-error analysis, not a plain-error analysis, see id. at 1503-04 (“The denial was not

harmless because the district court had the discretion to sentence Mr. Nash to a shorter

sentence.” (emphasis added)), so it was a lesser burden of proof. In sum we are satisfied

that neither Mendoza-Lopez nor Sarno is helpful to our analysis here.

       We reject Mason’s argument that the District Court’s questioning of Mason

impermissibly prevented him from making his arguments in support of mitigation. To

begin, he cites to no authority holding that district courts are not permitted to question

defendants during allocution. Cf. United States v. Covington, 681 F.3d 908, 910 (7th Cir.

2012) (“[A]n interruption by the court does not in itself amount to a denial of a

defendant's right of allocution.”); United States v. Hubbard, 721 F. App’x 102, 108 (3d

Cir. 2018) (citing Covington to conclude that a district court could engage “in a

substantive colloquy with [the defendant], seeking clarification on his explanations and

exploring the veracity of his justifications for his conduct”).

       Moreover, contrary to Mason’s contention, he was able to make his argument

seeking mitigation. He represented to the District Court that (1) the conditions of home

confinement were vague, (2) he only committed “85 percent” of the alleged violations,

and (3) he used the unaccounted-for times to visit his pregnant girlfriend. See App. 77-

82. Therefore, he was able to present the factual basis of his argument to the Court.

Mason avers that the Court’s questioning prevented him from making the argument that

                                              10
his violation was not very serious, but the record directly contradicts this claim. After all,

the Court asked him, “[s]o you’re saying that your justification for a sentence is because

you didn’t commit more serious violations?” App. 80. It is clear that the Court

understood Mason’s argument. In sum, we conclude that the Court did not commit an

error and limit Mason’s allocution.

       Inasmuch as the District Court did not commit any error in the proceeding and did

not prejudice Mason with respect to the allocution at the sentencing, obviously the Court

did not commit a plain error. Clearly, there was nothing unfair in the sentence that the

Court imposed. In fact, Mason almost conceded this point when at the sentencing he said

that “I expect jail time. I violated.” App. 79. For the foregoing reasons, we will affirm

the District Court’s September 25, 2018 sentence.




                                             11
