07-4824-cr
U.S.A.. v. Gonzalez


                           UNITED STATES COURT OF APPEALS

                               FOR THE SECOND CIRCUIT

                                  August Term 2007

Heard: May 12, 2008                                     Decided: June 11, 2008

                               Docket No. 07-4824-cr

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UNITED STATES OF AMERICA,
     Appellee,

                      v.

ROLONDO GONZALEZ,
     Defendant-Appellant.
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Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

         Appeal from the October 31, 2007, judgment of the United States

District Court for the Southern District of New York (Samuel Conti,

District          Judge,   Northern   District   of   California,   sitting   by

designation), imposing a sentence of 24 months for violation of

supervised release.           Appellant challenges omission of presentence

allocution.

         Remanded for vacation of sentence and resentencing.

                                      Steven M. Statsinger, Federal Defenders
                                        of New York, Inc., Appeals Bureau, New
                                        York, N.Y., for Defendant-Appellant.

                                      David S. Leibowitz, Asst. U.S. Atty., New
                                        York, N.Y. (Michael J. Garcia, U.S.
                                        Atty., Diane Gujarati, Asst. U.S.
                                        Atty., New York, N.Y., on the brief),
                                        for Appellee.
JON O. NEWMAN, Circuit Judge:

     This sentencing appeal primarily concerns the omission of a

defendant’s opportunity to address the sentencing judge prior to

imposition of sentence. Defendant-Appellant Rolando Gonzalez appeals

from the October 31, 2007, judgment of the District Court for the

Southern District of New York, before Judge Samuel Conti (District

Judge, sitting by designation), sentencing him to the statutorily

maximum term of twenty-four months of incarceration for violating his

supervised release.       On appeal, he contends that Judge Conti’s

sentence was procedurally and substantively unreasonable. We conclude

that the case must be remanded for resentencing.

                               Background

     In January 2005, Gonzalez pled guilty to two firearms violations,

and in April 2005, was sentenced to concurrent prison terms of 33

months for each violation, to be followed by a term of supervised

release of three years.    He was released from prison in November 2006

and transferred to immigration custody, from which he was released in

December 2006.

     In April 2007, the Probation Department (“Probation”) filed a

warrant with the District Court, charging that Gonzalez had violated

the terms of his supervised release in five specific ways: (1) failure

to report to Probation within 72 hours of his release from immigration

custody, (2) failure to report to Probation after receiving notices

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on various dates, (3) possession of a gravity knife in violation of

New York law, (4) possession of a bag of marijuana, and (5) pleading

guilty to disorderly conduct in state court in February 2007.      The

petition listed each specified violation as a “Grade C” violation.

See U.S.S.G. § 7B1.1(a)(3).

     At an initial hearing, the parties agreed that, in satisfaction

of the petition, Gonzalez would admit to failing to report to

Probation within 72 hours of release.      However, at that hearing,

Gonzalez contended that he did report, and Judge Conti ordered a

hearing on that issue for the following week.     Probation issued an

amended petition, adding a sixth “Grade C” violation--that prior to

his arrest on the revocation warrant, Gonzalez had pled guilty to

criminal mischief, a violation of New York State Law.        Probation

advised Judge Conti that Gonzalez faced a statutory maximum sentence

of two years’ imprisonment for violation of supervised release, see

18 U.S.C. § 3583(e)(3), and that the Guidelines range, based on

Gonzalez’s commission of a Grade C violation and his Criminal History

Category of II, was four to ten months’ imprisonment, see U.S.S.G.

§ 7B1.4(a).

     At the resumed hearing, Gonzalez admitted the fourth violation--

possession    of   marijuana--in   satisfaction   of   the   remaining

specifications.    The Judge then instructed the probation officer to

report about Gonzalez’s conduct since his release from immigration

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custody in December 2006, and scheduled a sentencing hearing the

following week for the admitted supervised release violation.

     At the sentencing hearing, defense counsel attempted to clarify

the confusion that had arisen at the earlier hearing as to whether

Gonzalez had reported to his probation officer after his release.

Counsel   indicated     that   Gonzalez   had   reported      to    an   immigration

officer, but not to his probation officer.             Counsel acknowledged that

when Gonzalez was released from federal prison, he was instructed to

report    to   Probation,    but   explained    that    he   was    transferred   to

immigration custody and later released to immigration parole, for

which    he    was   given   separate   reporting      instructions.        Counsel

represented that Gonzalez reported to an immigration official “for a

time,” but did not report to the Probation office.                 Judge Conti made

no comment on this explanation.

     Gonzalez’s probation officer, Veronica Casanova, testified that

Gonzalez was released from prison on November 22, 2006, and from

immigration custody on December 7, 2006. She indicated that Probation

sent three notices to Gonzalez directing him to report, the third of

which advised him of a February 16, 2007, appointment and was returned

with his signature.      Gonzalez did not keep the appointment.            Casanova

also testified that, while conducting a criminal records check, she

learned that Gonzalez had been arrested twice in 2007, and that he had

been sentenced to a one-year conditional discharge for disorderly

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conduct and 30 days in prison for    criminal mischief.

     On cross-examination, defense counsel asked Casanova if she knew

whether Gonzalez had reported to any immigration officials after his

release on immigration parole, and Casanova answered that she had left

a message with an immigration officer but had not received any reply.

     After the testimony concluded, Judge Conti asked the Government

for its position.    The Government noted that the Guidelines range was

4 to 10 months, but stated that it “takes no position other than

that.”   Defense counsel argued for a sentence at or below the low end

of the range, noting that all alleged violations were Grade C and that

Gonzalez’s failure to report resulted, at least in part, from his not

having a complete understanding that he was required to report to two

separate agencies.

     Without affording Gonzalez an opportunity to address the Court

before imposition of sentence, Judge Conti stated:

     I can’t see any benefit to society or anybody else,
     including him, to have any other benefit of the probation
     department, which he’s completely ignored. He knows what
     he’s doing.   He’s not an unintelligent individual.      He
     spent some time incarcerated, he came out, he’s supposed to
     be on supervised release and it did him no good. It’s not
     going to do him any good in the future. The Court is very
     well cognizant of the fact that the guidelines are four to
     ten months, but I see no benefit of giving him this
     particular time. I am going to exceed it and revoke his
     supervised release and sentence him to the remaining term
     of it, which is three years.

At this point, the prosecutor noted that the statutory maximum was


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two, and Judge Conti said, “Two years then.”

     Defense counsel objected, stating that the sentence wasn’t

warranted, “certainly not in light of the reasons the Court gave.”

     Later that day, Judge Conti called the parties back to the

courtroom.   He informed Gonzalez that he had forgotten to tell him

that he had a right to appeal the sentence imposed, and that if he

could not afford an attorney, the Court would appoint one for him.

Then, after defense counsel reminded the Judge about the omission of

presentence allocution, the Judge explained to Gonzalez that he had

a right to speak on his own behalf, telling him, “[Y]ou have the right

to say anything to the Court you want to and it may very well be that

there are occasions when the Court changes its mind. You have a right

to say anything you want to at this time.”            Gonzalez stated, as an

explanation for his supervised release violation, that he had “an

alcohol and a drug problem.”       Judge Conti stated he would be “happy

to recommend an alcohol and drug program during your incarceration.”

                                  Discussion

     All federal sentences, including those imposed for violations of

supervised release, are reviewed for reasonableness. See United

United   States   v.   Fleming,    397   F.3d   95,    99   (2d   Cir.   2005).

Reasonableness has both substantive and procedural dimensions. See

Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v.

Crosby, 397 F.3d 103, 114 (2d Cir. 2005).

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     Procedural claims.      A sentence is unreasonable if it is the

product of a “significant procedural error.” Gall, 128 S. Ct. at 597.

Gonzales’s principal procedural claim is that he was denied his right

to presentence allocution.    A defendant has a right, protected by the

Federal Rules of Criminal Procedure, to address the sentencing judge

before   the   imposition    of   sentence.   See   Fed.   R.   Crim.   P.

32(i)(4)(A)(ii); United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.

1996).   This right of presentence allocution applies to sentences

imposed for revocation of supervised release. See Fed. R. Crim. P.

32.1(b)(2)(E); Margiotti, 85 F.3d at 103.

     We have stated that “[r]esentencing is generally required if a

court does not comply with the requirements of Rule 32,” Margiotti,

85 F.3d at 103 (citing United States v. Axelrod, 48 F.3d 72, 72-73 (2d

Cir. 1995)).   However, we did not require resentencing where a judge

omitted an opportunity for allocution but ”immediately recognized the

lapse and offered the defendant the right of allocution,” “gave [the

defendant’s] statements full consideration,” and “responded by giving

reasons for his decision to adhere to the previously announced

sentence.” Id.   Under these circumstances, we regarded the sentence

as only “announced” without prior allocution but not “imposed” until

after allocution. See id.; see also United States v. Barnes, 948 F.2d

325, 331 n.5 (7th Cir. 1991) (“[A] trial judge, realizing after

sentencing that the right of allocution has been neglected, may

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rectify the situation by, in effect, setting aside the sentence,

reopening the proceeding, and inviting the defendant to speak. . . .

[T]he trial court must genuinely reconsider the sentence in light of

the elicited statement.”).

     In the pending case, the District Judge not only omitted an

opportunity for presentence allocution but also failed to conform to

the special circumstances deemed sufficient to avoid resentencing in

Margiotti.        First, the opportunity for allocution was not provided

immediately but only later in the day.           More important, there is no

indication that the District Judge responded to the Defendant’s

statement “by giving reasons for his decision to adhere to the

previously announced sentence.” Margiotti, 85 F.3d at 103.           The Judge

said only that he would recommend an alcohol and drug program during

the Defendant’s incarceration but did not mention the already imposed

sentence     or    give   reasons   for    adhering   to   it.    Under   these

circumstances, it cannot be said, as the Seventh Circuit stated in

Barnes, that the sentence was, “in effect, set[] aside” and the

proceedings “reopen[ed].” 948 F.2d at 331 n.5.

     The appropriate response to an omission of presentence allocution

implicates due regard for the appearance of fairness.            Whether or not

the allocution rights secured by Rules 32 and 32.1 can be satisfied

by full compliance with the Margiotti procedures, we believe that the

preferable course for remedying a denial of presentence allocution is

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to vacate the sentence, accord the right of allocution, and sentence

anew.   In the pending case, the District Judge did not vacate the

original sentence.       Instead, he told the Defendant that “there are

occasions when the Court changes its mind.”        Although the distinction

is subtle, there is a difference between speaking to a judge when the

slate is clean and speaking after sentencing in an effort to have the

judge change his mind.      Whatever the value of sentencing allocution,

neither a defendant nor observers in the courtroom are likely to

believe that an opportunity to try to talk a judge out of a sentence

already imposed is as effective as an opportunity to speak before a

sentence has been imposed.

      Without questioning any of our prior decisions, we conclude that

in   this   case   and   prospectively   the   remedy   for   omission   of   an

opportunity for presentence allocution should be vacation of the

sentence and a new sentencing proceeding in conformity with Rules 32

and 32.1.    We make this decision in the exercise of our “supervisory

powers to oversee the administration of criminal justice within

federal courts,” Daye v. Attorney General, 712 F.2d 1566, 1571 (2d

Cir. 1983), an authority we have exercised with respect to sentencing

procedures, see United States v. Ming He, 94 F.3d 782, 792 (2d Cir.

1996), “particularly when we are dealing with a procedure for which

a uniform practice is called for,” id.; see also United States v.

Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (asserting availability of

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supervisory powers for sentencing procedures).           We are mindful that

supervisory powers are not to be used to circumvent the harmless error

rule, see Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55

(1988), but we do not believe that noncompliance with Rule 32.1 was

harmless error in this case.

       Gonzalez also challenges the adequacy of the District Judge’s

brief statement of reasons for the sentence imposed, but, since

resentencing is required, we can expect that whatever sentence is

imposed will be appropriately explained.

       Substantive claim. Substantive reasonableness review concerns

“whether the length of the sentence is reasonable.” United States v.

Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006).          This review focuses on

a district court’s explanation of its sentence in light of the factors

contained in 18 U.S.C. § 3553(a). See United States v. Sindima, 488

F.3d   81,   84   (2d   Cir.   2007);    Rattoballi,   452   F.3d   at   134-35.

Substantive reasonableness review “is akin to review for abuse of

discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.

2006).    A district court is statutorily required to “state in open

court the reasons for its imposition of [a] particular sentence.” 18

U.S.C. § 3553(c).       Where, as here, the sentence is outside of an

advisory Guidelines range, “the court must also state with specificity

in the written order the specific reason for the sentence imposed.”

Sindima, 488 F.3d at 85 (internal quotation marks omitted).

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      Here, Gonzalez’s two-year sentence was more than twice as long

as the ten-month high-end of his Guidelines range. Cf. Sindima, 488

F.3d at 85-87 (36-month sentence for violation of probation not

supported by sufficiently compelling reasons).               Determination of

whether the sentence is unreasonable is hampered by the brevity of the

reasons given for it. We note that the Sentencing Commission’s policy

statement concerning violation of supervised release recommends that

“the court should sanction primarily the defendant’s breach of trust,

while taking into account, to a limited degree, the seriousness of the

underlying violation and the criminal history of the violator.”

U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b); see United States v.

Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008); Sindima, 488 F.3d at

86.   It is not clear whether the District Judge had this policy

statement in mind and endeavored to make a justified decision to

impose   a   non-Guidelines   sentence    without   regard    to   it.   Since

resentencing is required, a decision on reasonableness of sentence

length can be deferred until such time as a new sentence, properly

imposed, might be challenged on appeal.

                                Conclusion

      For the foregoing reasons, the case is remanded for vacation of

the sentence and resentencing.




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