     Case: 16-11096   Document: 00514212831        Page: 1   Date Filed: 10/26/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals

                                    No. 16-11096
                                                                            Fifth Circuit

                                                                          FILED
                                                                   October 26, 2017

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

BRYAN KENDALL PITTSINGER,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant-Appellant Bryan Kendall Pittsinger pleaded guilty to
sexually exploiting a minor in violation of 18 U.S.C. § 2251(a). The district
court sentenced him to 360 months’ imprisonment, the statutory maximum.
Pittsinger now appeals that sentence, contending that the district court erred
in denying his motion for a downward variance before permitting him to
address the court and in applying the three-level reduction for acceptance of
responsibility to his total offense level of 51 rather than to his adjusted total
offense level of 43. We find no error and AFFIRM.
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                                    No. 16-11096
                                           I.
      Bryan Kendall Pittsinger pleaded guilty to sexually exploiting a minor
in violation of 18 U.S.C. § 2251(a). Section 2251 provides a statutory minimum
sentence of fifteen years’ imprisonment and a statutory maximum of thirty
years. 18 U.S.C. § 2251(e). A Presentence Report (“PSR”) determined that his
final offense level was 51 before applying a three-level reduction for acceptance
of responsibility. Because that calculation resulted in an offense level greater
than 43, the PSR treated his offense level of 48 as an offense level of 43. 1 The
PSR also determined that Pittsinger had a criminal history category of I. A
total offense level of 43 and a criminal history category of I produces a
recommended guideline sentence of life imprisonment. However, because that
would exceed § 2251’s statutory maximum, the PSR reduced the Guidelines
sentence to the statutory maximum of 360 months’ (or 30 years) imprisonment.
      Pittsinger moved for a downward variance from the Guidelines sentence
based on consideration of the factors set forth in 18 U.S.C. 3553(a). At the
sentencing hearing, the district court indicated its “tentative” decision that the
motion for a variance “should be denied,” then heard argument on the motion
from Pittsinger’s counsel. Pittsinger’s counsel and the court then had the
following exchange:
      MR. LEHMANN: And, Your Honor, Mr. Pittsinger would like to
      address the Court.

      THE COURT: We’re not there yet. We’re still working on the
      motion for downward departure – or variance.

      MR. LEHMANN: Thank you.
The court then “finally denied” the motion for a downward variance.



      1  Chapter 5, Part A, application note 2 of the Sentencing Guidelines provides that
offense levels of greater than 43 are to be treated as offense levels of 43.
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                                  No. 16-11096
      After denying the motion, the court recited the Guidelines calculation
from the PSR, stating that Pittsinger’s offense level and criminal history
category resulted in a Guidelines sentence of 360 months. The court then noted
that it had received several letters on Pittsinger’s behalf and asked Pittsinger’s
counsel if he “wish[ed] to make any remarks on [Pittsinger’s] behalf or present
anyone else further?”     Counsel made a few remarks, and the court and
Pittsinger then had the following exchange:
      THE COURT: Mr. Pittsinger, I’ve read your letter. Is there
      anything you would like to say further on your own behalf?

      DEFENDANT PITTSINGER: Yes, Your Honor.

      THE COURT: Go ahead, sir.

      DEFENDANT PITTSINGER: I want to apologize to you first. I
      know these are tough cases to have to deal with. I apologize to my
      family, and I just ask for mercy on sentencing. I’m ready for a
      change. I’m ready for help, and with the – talking with the
      psychologist, she agrees that I can get help and that makes me feel
      a lot better to know, to know that there is a chance out there.

      THE COURT: All right, sir. Thank you.
The court next addressed the government, asking if it “wish[ed] to be heard.”
      MS. SALEEM: Your Honor, if I understand correctly, the Court
      intends to impose a guideline sentence?
      THE COURT: Yes.
      MS. SALEEM: Then we have nothing further.
      The court then noted that the attorneys would “have a final chance to
make legal objections before sentence is finally imposed,” before announcing
that it was “the judgment of the Court that the defendant, Bryan Kendall
Pittsinger, . . . be committed to the custody of the Federal Bureau of Prisons
for a period of 360 months.” The court then called upon the parties “to indicate

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                                  No. 16-11096
any legal reason why sentence should not be imposed as stated.” Counsel for
the government and Pittsinger stated that they had none. The court then
imposed the sentence.
      Pittsinger timely appealed his sentence, contending that the district
court erred by denying him the opportunity to address the court before ruling
on the motion for a downward variance and by applying the three-level
reduction for acceptance of responsibility to his total offense level of 51 rather
than his adjusted offense level of 43.
                                         II.
      The parties initially dispute whether Pittsinger adequately preserved
his objection to the denial of his opportunity to allocute prior to the court’s
ruling on his motion for a downward variance. Whether his claim is preserved
dictates whether this court applies de-novo or plain-error review.
      “A party must raise a claim of error with the district court in such a
manner so that the district court may correct itself and thus, obviate the need
for our review.” United States v. Bullard, 13 F.3d 154, 156 (5th Cir. 1994).
Accordingly, an error must be raised with “sufficient specificity” to permit the
district court to hear argument and “deal[] with” the issue. United States v.
Maldonado, 42 F.3d 906, 910, 912 (5th Cir. 1995). Accord United States v.
Ellis, 720 F.3d 220, 224-25 (5th Cir. 2013) (“To preserve error, an objection
must be sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” (internal quotation
marks omitted)).
      Pittsinger’s objection to the timing of his allocution was not sufficiently
raised below.      After presenting argument on Pittsinger’s motion for a
downward variance, his counsel informed the court that “Mr. Pittsinger would
like to address the Court.” The court responded “We’re not there yet. We’re
still working on the motion for downward departure – or variance.”
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                                  No. 16-11096
Pittsinger’s counsel said “Thank you,” and the court proceeded to deny the
motion. Based on that exchange, Pittsinger now contends that his claim of
error is preserved because he informed the court of the action he wished the
court to take. See Fed. R. Crim. P. 51(b) (“A party may preserve a claim of
error by informing the court . . . of the action the party wishes the court to take,
or the party’s objection to the court’s action and the grounds for that
objection.”).
      However, Pittsinger’s counsel said nothing about when Pittsinger
wanted to address the court. He requested only the opportunity to address the
court, not the opportunity to address the court before it ruled on the downward
variance. Furthermore, when the court responded that it was not yet time for
the allocution, Pittsinger’s counsel did nothing to clarify his request. By simply
saying “Thank you,” he failed to bring to the court’s attention the nature of the
alleged error. Accordingly, the alleged error was not presented with sufficient
specificity to allow the district court to address the issue and, if necessary,
correct itself.
      Additionally, Pittsinger’s counsel failed to ever raise an objection to the
timing of Pittsinger’s allocution, despite numerous opportunities to do so. He
did not object when the court stated that it was not yet time for the allocution;
he did not object when the court denied the motion for a variance without
having first heard from Pittsinger; and he did not object when the court asked
for the parties to “indicate any legal reason why sentence may not be imposed
as stated.”
      Because the claim of error was not sufficiently presented to the district
court, it is not preserved on appeal and we review for plain error only. See
United States v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). Accordingly,
we ask whether the district court (1) committed an “error,” (2) that is “plain,”
and (3) that affects “substantial rights.’” United States v. Reyna, 358 F.3d 344,
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                                  No. 16-11096
350 (5th Cir. 2004) (quoting United States v. Olano, 507 U.S. 725, 732 (1993))
(internal quotation marks omitted). “If those criteria are met, we have the
discretion to correct the forfeited error but should do so only if the error
‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Olano, 507 U.S. at 732) (alteration in original).
                                       III.
      Rule 32 of the Federal Rules of Criminal Procedure provides that,
“[b]efore imposing sentence, the court must . . . address the defendant
personally in order to permit the defendant to speak or present any
information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). To
satisfy that rule, “the district court must communicate ‘unequivocally’ that the
defendant has a right to allocute.” United States v. Magwood, 445 F.3d 826,
829 (5th Cir. 2006) (quoting United State v. Echegollen-Barrueta, 195 F.3d 786,
790 (5th Cir. 1999)). “[T]he 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 a right to speak on any subject of his choosing prior
to the imposition of sentence.” Echegollen-Barrueta, 195 F.3d at 789 (internal
quotation marks omitted) (alteration in original).
      Rule 32(i)(4)(A)(ii) includes two components: a defendant must have
both the opportunity to speak before the imposition of sentence and the
opportunity to “present any information.” Pittsinger contends that the district
court deprived him of both by denying his motion for a downward variance
before giving him the opportunity to address the court.
                                        A.
      While it may be the “better practice . . . to rule on any request for a Booker
variance after the defendant has allocuted,” we find persuasive that the district
court did not commit plain error by ruling on Pittsinger’s motion for a


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                                  No. 16-11096
downward variance before giving him the opportunity to allocute. See United
States v. Hedary, 672 F. App’x 434, 435 (5th Cir. 2016) (unpublished opinion).
      Rule 32 is to be applied “quite literally,” Magwood, 445 F.3d at 829
(internal quotation marks omitted), but even its literal application may be
insufficient where compliance is “merely in form.” United States v. Sparrow,
673 F.2d 862, 865 (5th Cir. 1982). Accordingly, other circuits have held that
an opportunity to allocute before a sentence is technically imposed is not
meaningful if the court has already stated in conclusive terms that a particular
sentence will be imposed. See United States v. Landeros-Lopez, 615 F.3d 1260,
1265, 1268 (10th Cir. 2010) (holding that district court erred in stating that “it
is and will be the judgment of this Court that the defendant . . . is hereby
committed to the custody of the Bureau of Prisons to be imprisoned for a term
of 115 months” before inviting defendant to address the court (emphasis in
original)); United States v. Luepke, 495 F.3d 443, 445, 450 (7th Cir. 2007)
(holding that district court plainly erred in stating that it was “adjudged the
defendant is committed to the custody of the Bureau of Prisons for
imprisonment for a term of 240 moths” before inviting defendant to address
the court).
      However, Rule 32 does not prohibit courts from stating their mere
intentions to impose a particular sentence before giving defendants the
opportunity to speak. See United States v. Mendoza-Lopez, 669 F.3d 1148,
1150, 1152 (10th Cir. 2012) (holding that district court did not plainly err by
calculating the Guidelines range and stating that “[i]t’s the Court[‘s] intention
to sentence within that Guideline range” before inviting defendant to allocute
(second alteration in original)), overruled on other grounds by United States v.
Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017); United States v. Engle,
676 F.3d 405, 424-26 (4th Cir. 2012) (holding that district court did not plainly
err in ruling on motions for variances and stating that “480 months will
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                                 No. 16-11096
reasonably protect society” before inviting defendant to allocute); United States
v. Boose, 403 F.3d 1016, 1017 (8th Cir. 2005) (per curium) (affirming 270 month
sentence where district court stated its intent to impose a 270 month sentence
before giving defendant the opportunity to speak); United States v. Laverne,
963 F.2d 235, 236-37 (9th Cir. 1992) (holding that district court did not violate
Rule 32 by indicating intention to impose 225 month sentence before inviting
defendant to allocute). The touchstone is whether the defendant’s opportunity
to address the court and ask for a lower sentence is meaningful. Where a court
merely states its tentative intention to impose a particular sentence but
remains open to hear and consider what the defendant has to say, Rule 32 is
not violated. See Mendoza-Lopez, 669 F.3d at 1152 (finding no error where
defendant-appellant failed to show how district court’s statement of intent
“predetermined” his sentence or that “he had no meaningful opportunity to
influence that sentence”); Engle, 676 F.3d at 925 (finding no error where there
was “nothing in the record to establish that the court did not consider Engle’s
comments before finally imposing sentence”). Cf. United States v. Burgos-
Andujar, 275 F.3d 23, 30 (1st Cir. 2001) (“When a judge announces a sentence
before hearing an allocution, it is fair to assume that such a sentence is
tentative and that the judge will consider the defendant’s statements before
imposing a final sentence.”).
      Pittsinger contends that by denying his motion for a variance, the
district court committed itself to imposing a 360 month Guidelines sentence
and that his opportunity to address the court was therefore meaningless. But
the court did no such thing.     By denying the motion for a variance and
calculating the resulting sentence under the Guidelines, the court merely




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                                      No. 16-11096
stated its tentative intention to impose that sentence. 2                 That the court
remained open to consider other factors that might influence the sentence
actually imposed is clear from its invitation, after ruling on the motion, to hear
not only from Pittsinger but also to hear further argument from counsel
regarding the appropriate sentence. There was thus no “indicat[ion] that the
judge would remain unmoved in the face of anything the defendant had to say.”
United States v. Myers, 150 F.3d 459, 463 (5th Cir. 1998), abrogated by United
States v. Reyna, 358 F.3d 344 (5th Cir. 2004).
                                             B.
       Rule 32 also gives a defendant the “right to speak [at sentencing] on any
subject of his choosing.” United States v. Palacios, 844 F.3d 527, 530-31 (5th
Cir. 2016) (internal quotation marks omitted). Accordingly, the rule is violated
when courts limit the subject matter about which defendants may speak at
sentencing. See id. at 531 (finding plain error where district court permitted
defendant to speak regarding acceptance of responsibility only); Mendoza-
Lopez, 669 F.3d at 1152 (finding plain error where district court invited
defendant “to address only ‘where within [the Guidelines] range this Court
should sentence’”).




       2 Pittsinger makes much of the fact that the court’s ruling on his motion for a
downward ruling was “final.” However, that the court’s ruling on the motion was final does
not mean that the sentence was, too. The court retained the discretion to vary downward
from the Guidelines sentence after hearing Pittsinger address, in his own words, why a lower
sentence was appropriate. See United States v. Lopez-Valasquez, 526 F.3d 804, 808 (5th Cir.
2008) (noting that courts have discretion to vary from the Guidelines sua sponte). Cf. Green
v. United States, 365 U.S. 301, 304 (1961) (“The most persuasive counsel may not be able to
speak for a defendant as the defendant might, with halting eloquence, speak for himself.”).
       Pittsinger also contends that the prosecutor’s question clarifying her understanding
that the court intended to impose a 30-year Guidelines sentence demonstrates that it was
obvious to the parties that, by denying the motion for a variance, the court had made a final
decision to impose that sentence. However, the prosecutor’s understanding of the court’s
ruling does not convert its statement denying that motion into the kind of definitive
declaration of a sentence that raises a Rule 32 problem.
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                                 No. 16-11096
      Pittsinger contends that the district court effectively prohibited him from
addressing what he believed to be the most important mitigating factors
weighing in favor of a below-Guidelines sentence by permitting him to speak
only after ruling on his motion for a downward variance. However, while the
court denied the motion, thereby indicating that it did not find persuasive
counsel’s recitation of the arguments in favor of a variance, it said nothing to
indicate to Pittsinger that he could not speak for himself on those same issues.
Simply stating that the “motion for downward variance is finally denied” does
not communicate an unwillingness to hear statements from the defendant on
any issue he might want to address. Compare United States v. Li, 115 F.3d
125, 131-34 (2d Cir. 1997) (vacating sentence where district court stated that
defendant “doesn’t want to face the punishment for what she has done” and
then precluded defendant from explaining why she did not know that the
conduct leading to her conviction was unlawful) with United States v. Pacheco,
727 F.3d 41, 48-50 (1st Cir. 2013) (finding no error where district court told
defense counsel, who was arguing for a reduced sentence, to “shut up” before
asking defendant if there was “[a]nything [she] want[ed] to say”).
Furthermore, the court explicitly invited Pittsinger to speak on any topic of his
choosing by asking, in very broad terms, if there was “anything [he] would like
to say further on [his] own behalf.”
      Because the district court did not make a definitive and conclusive
statement regarding the sentence to be imposed, and because it directly invited
Pittsinger to speak on any topic of his choosing before it formally announced
and imposed the sentence, the court did not commit an error that was clear or
obvious. See Olano, 507 U.S. at 734.
                                       IV.
      Pittsinger also contends that the district court erred by applying the
three-level reduction for acceptance of responsibility to his adjusted offense
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                                     No. 16-11096
level of 51. He contends that, because offense level 43 is the highest level
recognized in the Guidelines, the court should have deducted three levels from
43 rather than from 51. Because he failed to raise this argument below, we
review for plain error.
      As Pittsinger concedes, his argument is foreclosed by this court’s decision
in United States v. Wood, 48 F.3d 530, 1995 WL 84100 (5th Cir. Feb. 8, 1995)
(unpublished), where we held that the district court did not err by applying the
reduction for acceptance of responsibility to the defendant’s total offense level
of 46 rather than to the final adjusted offense level of 43. See id. at *7. 3
Accordingly, we find no plain error here.
       For the foregoing reasons, we AFFIRM.




      3  Wood, while unpublished, is precedential because it was issued before January 1,
1996. See 5TH CIR. R. 47.5.3; Weaver v. Ingalls Shipbuilding, Inc., 282 F.3d 357, 359 & n.3
(5th Cir. 2002).
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