                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-2008

USA v. Jackson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2902




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                   No.06-2902
                                ________________

                        UNITED STATES OF AMERICA

                                         v.

                             ANTHONY JACKSON,
                                               Appellant
                              ________________

                   Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                             (E.D. Pa. No. 03-cr-00642)
                District Judge: The Honorable Michael M. Baylson
                                ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               February 4, 2008

                  Before: McKEE and AMBRO, Circuit Judges
                      and IRENAS *, Senior District Judge

                        (Opinion Filed: December 9, 2008)

                                    OPINION


MCKEE, Circuit Judge.

       Anthony Jackson appeals the sentence that was imposed on remand

following his appeal from the sentence that was originally imposed. He argues that


       *
         Honorable Joseph E. Irenas, Senior United States District Judge for the
District of New Jersey, sitting by designation.
the district court committed plain error by denying him his right of allocution

before resentencing him. For the reasons that follow, we will affirm.

                                          I.

       As we are writing primarily for the parties who are familiar with this case,

we need not set forth the factual or procedural background except insofar as may

be helpful to our brief discussion.

       Jackson’s original counsel was allowed to withdraw and we are now in

receipt of a letter from subsequently appointed counsel, Peter A. Levin, wherein

counsel informs us that after reviewing the record and consulting with his client,

he has decided not to file a supplemental brief.

       We previously vacated the defendant’s conviction on Count One of the

indictment because that offense was a lesser included offense of the charges in

Count Two. See United States v. Jackson, 443 F.3d 293 (3d Cir. 2006).

Accordingly, we vacated the sentence on Count One and remanded for

resentencing on Count Two. On remand, the district court reimposed the same

sentence on Count Two without hearing from Jackson.

       Jackson now cites Fed. R. Crim. P. 32(i)(4)(A) in arguing that this was error

because he was denied his right of allocution. Rule 32(i)(4)(A)(ii) provides that a

sentencing court must “address the defendant personally in order to permit the

defendant to speak or present any information to mitigate the sentence.” Although

the district court did not ask Jackson if he wished to speak at the resentencing,


                                          2
Jackson never objected to the proceeding, nor did he ask to be heard before the

new sentence was imposed. Accordingly, we review only for “plain error.” United

States v. Plotts, 359 F.3d 247, 248-249 (3d Cir. 2004). Under that standard of

review, we may award relief if Jackson can establish an error, that was plain, and

“affected [his] substantial rights.” See United States v. Olano, 507 U.S. 725, 734-

735 (1993).

       Jackson also relies on United States v. Plotts, 359 F.3d 247, 250 (3d Cir.

2004). Plotts was sentenced for a violation of supervised release, a transgression

that is not punished with mandatory imprisonment. Id. at 251. Accordingly,

Plotts’ ability to address the court was potentially important to the court’s

determination of an appropriate sentence. “[A] defendant is often his most

persuasive and eloquent advocate.” Under those circumstances, we concluded that

denying Plotts an opportunity to address the court before sentence was imposed

affected his substantial rights. Id. at 250.

       We reasoned that a “violation of the right of allocution could play a role in

a court's sentencing decision whenever there exists any disputed facts in

connection with sentencing or any defense arguments that might reduce the

applicable guideline range or ultimate sentence.” Id.

       Jackson’s situation is different. The court already heard from Jackson at the

original sentencing. Jackson points to nothing to suggest that he was in any way

prejudiced by not addressing the court once again before resentencing on remand,


                                           3
and we see nothing in the record to indicate that the loss of that opportunity

affected his substantial rights in any way. Nothing on this record suggests that he

was prejudiced and allowing this sentence to stand despite that procedural defect in

no way undermines the public’s confidence in the judicial system. United States v.

Young, 470 U.S. 1, 16 (1985).       Relief based upon plain error should only be

granted to correct those errors “in which a miscarriage of justice would otherwise

result.” Id., at 15. That is simply not this case.

                                      CONCLUSION

       For the reasons set forth above, we will affirm the judgment of sentence.




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