                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                              April 12, 2011

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                  No. 10-2235
                                                     (D.C. No. 2:08-CR-01599-JEC-1)
 v.                                                            (D. N. Mex.)

 FRANCISCO M. NANEZ,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, GORSUCH and MATHESON, Circuit Judges.


       After examining the briefs and appellate record, this panel has unanimously

determined to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

       Francisco M. Nanez appeals from his sentence imposed following the revocation

of his supervised release, contending that the district court failed to afford him his right of


       *This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Citation to
an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
allocution before imposing the sentence. Because Mr. Nanez cannot demonstrate plain

error warranting reversal, we AFFIRM.

                                    BACKGROUND

       Mr. Nanez pleaded guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 30 months’

imprisonment and 3 years’ supervised release. His supervised release began on March

24, 2009. On August 27, 2009, a petition to revoke supervised release was filed, which

was later superseded by an amended petition. Mr. Nanez admitted to violating the terms

of his supervised release by drinking in public, possessing an open container of alcohol in

a vehicle, failing to submit to random drug testing, and failing to report. He was

sentenced to 43 days’ imprisonment (time served) and 2 years’ supervised release.

       Mr. Nanez was arrested on August 17, 2010, pursuant to another petition to revoke

his supervised release. Mr. Nanez admitted to violating the terms of his supervision by

possessing methamphetamine. After Mr. Nanez admitted that he was in violation of the

terms of his supervised release, the district court asked: “Do you wish me to proceed to

sentencing?” Tr. of Sentencing Hr’g at 2, R. Vol. 3 at 4. Mr. Nanez’s counsel

responded: “Yes, Your Honor.” Id. at 3, R. Vol. 3 at 5. The district court then explained

its reasoning for imposing a 24-month sentence with no further term of supervised

release.

       After the court had imposed this sentence, Mr. Nanez’s counsel stated:

              Your Honor, I meant to address you before you made your decision. Mr.
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              Nanez is now getting Social Security disability and SSI. He also faces a
              State charge for this. So I was hoping you would consider just giving him
              time served in this case and letting the State deal with this, because it was a
              personal use amount of methamphetamine.

Id. at 4, R. Vol. 3 at 6. The district court reiterated that Mr. Nanez’s sentence was for 24

months’ imprisonment, and the hearing concluded.

       Mr. Nanez timely filed a notice of appeal. We exercise jurisdiction under 28

U.S.C. § 1291.

                                        DISCUSSION

       Mr. Nanez presents one issue on appeal: whether the district court’s failure to offer

him the opportunity to allocute before imposing a sentence requires reversal. Because

Mr. Nanez did not object to the purported violation of his allocution rights at the

revocation hearing, we review for plain error.1 United States v. Rausch, ___ F.3d ___,

No. 10-1388, 2011 WL 1137004, *3 n.1 (10th Cir. Mar. 30, 2011) (“[A] defendant who

fails to object to the district court’s procedures regarding the right of allocution must

demonstrate plain error to warrant reversal on appeal.”). “Plain error occurs when there

is (1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at *3 (quotations omitted).


       1
        Mr. Nanez makes no argument in his brief that any of his or his counsel’s
statements at the revocation hearing constituted an objection regarding the opportunity to
allocute. He simply argues that the facts of his case require reversal regardless of the
standard of review.

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       Mr. Nanez argues that the district court plainly erred in violating Federal Rule of

Criminal Procedure 32, which states that before imposing a sentence the district 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). He

cites to United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010), as recent 10th

Circuit support for this position. But Rule 32 applies to original sentencing hearings.

Revocation proceedings are governed by Rule 32.1, which states that a defendant is

“entitled to: . . . an opportunity to make a statement and present any information in

mitigation.” Fed. R. Crim. P. 32.1(b)(2)(e).

       Rules 32 and 32.1 differ. First, Rule 32 requires an opportunity to allocute before

a sentence is imposed; Rule 32.1 contains no explicit timing requirement within the

revocation hearing. Second, Rule 32 directs the court to address the defendant personally

in affording an opportunity to allocute; Rule 32.1 refers to a defendant’s opportunity to

allocute without instructing the court on how to afford it. Rule 32.1 does not specify if it

is the court’s responsibility to offer the opportunity to allocute or the defendant’s

responsibility to request it.

       As Rausch explained, other circuits have disagreed as to whether the similarity of

language between Rules 32.1 and 32 requires a district judge at a revocation hearing to

address the defendant personally and provide an opportunity to allocute before

sentencing. See 2011 WL 1137004, *3 (explaining that the Seventh and Eleventh

Circuits support finding the same allocution requirements under both Rules 32 and 32.1,
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while the Eighth Circuit criticizes that approach based on textual differences). 2 The U.S.

Supreme Court has also recognized that a revocation hearing

       is not part of a criminal prosecution and thus the full panoply of rights due a
       defendant in such a proceeding does not apply. . . . Revocation deprives an
       individual, not of the absolute liberty to which every citizen is entitled, but only of
       the conditional liberty properly dependent on observance of special parole
       restrictions.

Morrisey v. Brewer, 408 U.S. 471, 480 (1972). As recognized by our court in Rausch, it

is therefore unclear whether a district court’s failure at a revocation hearing to address a

defendant personally regarding an opportunity to allocute before sentencing is an error

under Rule 32.1. 2011 WL 1137004, *3.

       If there was error, it was certainly not plain given our court’s recognition of

       2
          To better understand this disagreement, it is helpful to review some history of
Rule 32. Although the present language regarding allocution in Rule 32 is considerably
different than that in Rule 32.1, a previous version of Rule 32 was more similar. The
U.S. Supreme Court interpreted this previous version of Rule 32 as granting criminal
defendants a personal right of allocution and as imposing on trial judges an obligation to
unambiguously address defendants and invite them to speak before sentencing. Green v.
United States, 365 U.S. 301, 305 (1961). As quoted in Green, the previous version of
Rule 32 stated: “Before imposing sentence the court shall afford the defendant an
opportunity to make a statement in his own behalf and to present any information in
mitigation of punishment.” Id. at 303 n.1 (quoting pre-amendment Fed. R. Crim. P.
32(a)).
         Some circuits supporting identical rights of allocution under Rules 32 and 32.1
point to the similarities between the current Rule 32.1 and this previous version of Rule
32. See e.g., United States v. Carruth, 528 F.3d 845, 847 (11th Cir. 2008); United States
v. Pitre, 504 F.3d 657, 661-62 (7th Cir. 2007). However, the previous version of Rule 32
still differs from Rule 32.1 in that the latter has no language regarding providing the
allocution opportunity before sentencing, nor directing that the court “shall afford” the
opportunity. Instead, a literal reading of Rule 32.1 provides that a defendant is entitled to
an allocution opportunity at some point during the revocation hearing. See United States
v. Robertson, 537 F.3d 859, 862 (8th Cir. 2008).

                                              5
ambiguity in Rausch. Id. “For purposes of plain error review, the term ‘plain’ requires

that the error be clear or obvious under current law.” United States v. Pablo, 625 F.3d

1285, 1293 (10th Cir. 2010). Because any error could not have been plain, Mr. Nanez

cannot succeed in this appeal under the applicable plain error standard of review.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM Mr. Nanez’s sentence.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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