            Case: 16-17203   Date Filed: 04/07/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17203
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:16-cr-00036-RV-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

PATRICIA L. BUTLER,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                              (April 7, 2017)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Patricia Butler appeals her sentence of 12 months and 1 day, imposed after

she pled guilty to one count of theft of government money, in violation of

18 U.S.C. § 641. Butler argues that the district court plainly erred in not allowing

her the right of allocution before imposing her sentence. The district court asked

Butler if she wanted to speak during the discussion about acceptance of

responsibility. The government, however, concedes error and that, after ruling on

that guidelines issue, the district court should have later addressed Butler

personally and allowed her to allocute on any subject of her choosing prior to the

imposition of the sentence.

      A district court’s failure to accord a defendant the right of allocution at

sentencing is reviewed for plain error when the defendant fails to timely object to

this omission. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). Federal

Rule of Criminal Procedure 32(i)(4)(A)(ii) requires a district court, prior to

imposing a sentence, to address the defendant personally and determine whether

the defendant wishes to make a statement and to present any information in

mitigation of the sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii). Addressing defense

counsel, instead of the defendant directly, does not satisfy this requirement. Perez,

662 F.3d at 584.

      Our inquiry is whether the district court’s colloquy with the defendant is the

“functional equivalent” of what Rule 32(i)(4)(A)(ii) prescribes. Id. at 585. In


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order for us to find functional equivalency, the record must demonstrate that the

court, the prosecutor, and the defendant must, at the very least, have interacted in a

manner that shows clearly and convincingly that the defendant knew that she had a

right to speak on any subject of her choosing prior to the imposition of sentence.

Id.

      All four prongs of the plain error standard are established when a district

court failed to comply with Rule 32(i)(4)(A)(ii) and the district court sentenced the

defendant to more than the low end of the defendant’s guidelines range. Id. at 585-

86.

      Here, as in Perez, the record does not reflect that the district court, the

government, and Butler herself interacted in a manner that showed that Butler was

given the opportunity to speak on any subject of her choosing prior to the

imposition of sentence, not just the limited subject of acceptance of responsibility.

See Perez, 662 F.3d 585; Fed. R. Crim. P. 32(i)(4)(A)(ii). As we determined in

Perez, all four prongs of plain error review have been established here because the

district court failed to comply with Rule 32(i)(4)(A)(ii) and the district court

sentenced Butler to more than the low end of the guidelines range. Id. at 585-86.

Therefore, the district court committed reversible plain error. Id. at 585-86. We

vacate Btuler’s sentence and remand for Butler to be afforded the right of full




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allocution and then for resentencing. Nothing herein speaks to the merits or the

amount of the sentence.


      VACATED AND REMANDED.




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