                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2004

USA v. Plotts
Precedential or Non-Precedential: Precedential

Docket No. 02-4575




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Recommended Citation
"USA v. Plotts" (2004). 2004 Decisions. Paper 950.
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                      PRECEDENTIAL      Robert Epstein
                                        Assistant Federal Defender
       UNITED STATES                    Brett Sweitzer, Esq.
      COURT OF APPEALS                  David L. McColgin, Esq.
    FOR THE THIRD CIRCUIT               Maureen Kearney Rowley, Esq.
                                        Defender Association of Philadelphia
                                        Federal Court Division
            No. 02-4575                 Curtis Center, Independence
                                        Square West, Suite 540 West
                                        Philadelphia, PA 19106

 UNITED STATES OF AMERICA                      Attorneys for Appellant

                 v.                     Patrick L. Meehan
                                        U.S. Attorney, Eastern District
        RICHARD PLOTTS,                 of Pennsylvania
                                        Laurie Magid
                  Appellant             Deputy U.S. Attorney
                                        Robert A. Zauzmer
                                        Assistant U.S. Attorney
                                        Terri A. Marinari
        On Appeal from the              Assistant U.S. Attorney
 United States District Court for the   615 Chestnut Street
   Eastern District of Pennsylvania     Philadelphia, PA 19106
D.C. Crim. Action No. 02-cr-00020-01
     (Honorable Stewart Dalzell)               Attorneys for Appellee


 Submitted Under Third Circuit LAR            OPINION OF THE COURT
              34.1(a)
         October 30, 2003
                                        AM BRO, Circuit Judge
   Before: SCIRICA, Chief Judge,
    NYGAARD and AMBRO,                         Richard Plotts appeals the District
           Circuit Judges               Court’s decision revoking supervised
                                        release and imposing a sentence of
  (Opinion filed February 19, 2004)     imprisonment. Because Plotts was
                                        denied the right of allocution at
                                        sentencing, we reverse and remand to the
District Court for resentencing.1                 of counsel, the District Court found that
                                                  Plotts had: (1) been in possession of a
I. Factual and Procedural Background              firearm; (2) engaged in credit card
                                                  fraud2 ; (3) used drugs, including opiates,
       In July 1995, Plotts was arrested          on repeated occasions; and (4) lied to his
in Delaware on the suspicion of bank              probation officer. 3 Following these
robbery. Shortly thereafter, a grand jury         findings, the District Court revoked
returned an indictment against Plotts,            Plotts’s supervised release and sentenced
charging him with bank robbery in                 him to 30 months imprisonment followed
violation of 18 U.S.C. § 2113(a). He              by 30 months supervised release. Prior
pled guilty to a single count and received        to sentencing, Plotts was not given an
a sentence of 80 months imprisonment              opportunity to address the Court, known
followed by three years supervised                as allocution. He appeals, alleging that
release. In February 2002 (after serving          (1) he was denied the right of allocution
his sentence and while on supervised              at his release revocation hearing before
release), responsibility for his                  sentence was imposed, and (2) the
supervision was transferred to the                District Court improperly treated a
Probation Office for the Eastern District         charged Grade C violation as a Grade A
of Pennsylvania.                                  violation for sentencing purposes (thus
                                                  increasing his sentence). 4
        Plotts was arrested in November
2002 by the Pennsylvania State Police
for violating 18 Pa. Cons. Stat. § 6105
(felon in possession of a firearm).
Shortly thereafter, the Probation Office
                                                         2
filed a petition to revoke Plotts’s                         While we are unaware of any
supervised release, alleging six violations       formal criminal charges against Plotts for
of his release conditions. The District           credit card fraud, he admitted to his parole
Court conducted a revocation hearing in           officer using another individual’s credit
December 2002. The Government                     card for an unauthorized purpose.
presented the testimony of six witnesses.
                                                         3
Plotts presented no evidence. After                          On appeal, Plotts and the
considering the evidence and arguments            Government present different versions of
                                                  the facts and circumstances surrounding
                                                  the revocation of his supervised release.
                                                  While this may be an area for the District
       1
        In its brief, the Government states       Court to explore on resentencing, it is
it does not oppose resentencing in this           irrelevant to our resolution of this case.
case. We commend the United States
                                                         4
Attorney’s Office for its candor and                     We have jurisdiction pursuant to
professionalism.                                  28 U.S.C. § 1291.

                                              2
         II. Standard of Review                     case for resentencing.5

        As Plotts failed to preserve his
objections at the revocation hearing, we                   5
                                                               Plotts also argues the District
review the decision of the District Court
                                                    C ourt committed plain error b y
for plain error. United States v. Adams,
                                                    mischaracterizing a Grade C violation,
252 F.3d 276, 279 (3d Cir. 2001); see
                                                    unauthorized use of a credit card, as a
also Fed. R. Crim. P. 52(b). Under plain
                                                    Grade A violation for sentencing purposes.
error review, we may grant relief if
                                                    As resentencing is granted on the ground
(1) the District Court committed an
                                                    that allocution was improperly denied, we
“error,” (2) it was “plain,” and (3) it
                                                    decline to entertain this alternative
affected “substantial rights” of the
                                                    argument. We note, however, that the
defendant. United States v. Olano, 507
                                                    revocation petition filed by the Probation
U.S. 725, 732 (1993). “A deviation from
                                                    Office with the District Court alleges a
a legal rule is [an] ‘error.’” United States
                                                    Grade C violation. In its brief, the
v. Russell, 134 F.3d 171, 180 (3d Cir.
                                                    Government concedes that Plotts’s actions
1998) (citation omitted). It is “plain”
                                                    do not constitute a Grade A violation, but
when “‘clear’ or ‘obvious.’” Id. (citation
                                                    instead insists they should be Grade B (not
omitted). In order for an error to affect
                                                    Grade C). Because the petition already
“substantial rights,” it must have been
                                                    alleges a Grade A violation (possession of
“prejudicial”; in other words, “it must
                                                    a firearm), Plotts would suffer little
have affected the outcome of the district
                                                    prejudice if, prior to resentencing, the
court proceedings.” Olano, 507 U.S. at
                                                    Probation Office were to amend the
734. If these requirements are satisfied,
                                                    violation grade assigne d to h is
we should exercise our discretion to
                                                    unauthorized use of a credit card. See U.S.
grant relief if the error “‘seriously affects
                                                    Sentencing Guidelines Manual § 7B1.4(a)
the fairness, integrity or public reputation
                                                    (listing the suggested imprisonment ranges
of judicial proceedings.’” Id. at 736
                                                    for Grades A, B and C violations). Until
(citation omitted); see also Adams, 252
                                                    revised by the Probation Office, however,
F.3d at 284-85.
                                                    these actions rema in as initia lly
                                                    characterized, a Grade C violation. See
               III. Analysis
                                                    generally 18 U.S.C. § 3603(2) (stating that
                                                    it is the duty of the probation officer to be
       We conclude that a criminal
                                                    aware of the conditions of supervised
defendant’s right of allocution extends to
                                                    release and to report to the sentencing
release revocation hearings. Because the
                                                    court conduct which may violate those
District Court committed plain error in
                                                    terms); U.S. Sentencing Guidelines
denying Plotts’s right, we remand this
                                                    Manual § 7B1.2 (same); see also Fed. R.
                                                    Crim. P. 32.1(b)(2)(A) (requiring that a
                                                    defendant at a revocation hearing receive

                                                3
        The rule in our Circuit is that            disputed facts in connection with
denying the right of allocution (at least in       sentencing or any defense arguments that
sentencing hearings) will generally result         might reduce the applicable guideline
in resentencing under plain error review.          range or ultimate sentence. Id. All of
Adams, 252 F.3d at 289.                            this is based on the belief that a
Rule 32(i)(4)(A)(ii) of the Federal Rules          defendant is often his most persuasive
of Criminal Procedure states a court               and eloquent advocate. Id. at 288.
must, before imposing sentence, “address
the defendant personally in order to                       While not constitutional, the right
permit the defendant to speak or present           of allocution is “ancient in origin, and it
any information to mitigate the                    is the type of important safeguard that
sentence.” In Adams, we concluded the              helps assure the fairness, and hence,
District Court in that case committed an           legitimacy, of the sentencing process.”
“error” that was “plain” by failing to             Id. Accordingly, we concluded in
address the defendant personally prior to          Adams that denial of allocution at the
sentencing. 252 F.3d at 286. With                  defendant’s sentencing hearing was plain
regard to the “affects substantial rights”         error and warranted resentencing. Id. at
portion of the plain error analysis, we            288-89.
interpreted Olano as requiring “the
defendant to make a specific showing of                    We have not ruled whether a
prejudice, unless he can show that the             defendant’s right of allocution extends to
error should be presumed prejudicial, or           a revocation hearing. The Federal Rules
that the error belongs in a special                of Criminal Procedure fail to define
category of errors that should be                  explicitly the scope of allocution rights.
corrected regardless of prejudice (i.e., the       Almost every circuit court to consider the
category of structural errors).” Id. at            issue, however, has ruled that allocution
285-86. Prejudice should be presumed,              must be permitted before imposition of
however, when a defendant shows the                sentence at a supervised release (or
violation of a right could “have played a          parole) revocation hearing. See United
role in the district court’s sentencing            States v. Reyna, No. 01-41164, 2004
decision.” Id. at 287. We also stated that         U.S. App. LEXIS 1134 (5th Cir. Jan. 26,
violation of the right of allocution could         2004) (en banc)6 ; United States v.
play a role in a court’s sentencing
decision whenever there exists any
                                                          6
                                                           The Reyna Court approved of the
                                                   plain error analysis in Adams, including
“written notice of the alleged violation”).        the conclusion that prejudice should be
On resentencing, the District Court should         presumed when violation of a right could
consider the effect, if any, of its alleged        have affected a court’s sentencing
mischaracterization in the first instance.         decision. 2004 U.S. App. LEXIS at *16.

                                               4
Waters, 158 F.3d 933, 944-45 (6th Cir.               921 (5th Cir. 1994); United States v.
1998); United States v. Patterson, 128               Carper, 24 F.3d 1157, 1160-62 (9th Cir.
F.3d 1259, 1260-61 (8th Cir. 1997);                  1994); United States v. Barnes, 948 F.2d
United States v. Rodriguez, 23 F.3d 919,             325, 329-30 (7th Cir. 1991). 7 In light of
                                                     our previously expressed views in Adams
                                                     on the importance of allocution, and in
                                                     reliance on the well-reasoned opinions in
        The Fifth Circuit, however,
                                                     other circuits, we too conclude that a
disagreed with Adams somewhat as to
                                                     defendant’s right of allocution extends to
when an appellate court should exercise its
                                                     revocation hearings.
discretion in correcting a plain error. In
Adams, we stated without qualification
                                                             For similar reasons, we conclude
that denial of the right of allocution affects
                                                     that the District Court’s error in this case
the “fairness, integrity or public reputation
                                                     was “plain.” An error may be clear or
of judicial proceedings.” 252 F.3d at 288
                                                     obvious absent controlling Supreme
(citation and quotations omitted). In
                                                     Court or Third Circuit precedent. United
contrast, the Fifth Circuit concluded that
                                                     States v. Evans, 155 F.3d 245, 251-52
“[i]n a limited class of cases, a review of
                                                     (3d Cir. 1998). In such a case, decisions
the record may reveal, despite the presence
                                                     from other circuit courts are instructive.
of disputed sentencing issues, that the
                                                     See United States v. Barbosa, 271 F.3d
violation of a defendant’s right to
                                                     438, 456 (3d Cir. 2001) (relying on
allocution does not violate the last Olano
                                                     previous decisions of two circuit courts
prong. This case is a good example.”
                                                     in finding plain error). In Plotts’s case,
Reyna, 2004 U.S. App. LEXIS at *19.
                                                     the weight of appellate authority
        We are bound, however, to follow
                                                     discussed above is sufficient to render
Adams, and it carves out no exception on
                                                     the District Court’s error clear and
its face. Further, the Reyna exception is,
by its own terms, limited; indeed, the Fifth
Circuit concluded that resentencing is
                                                            7
“ordinarily” required. Id. at *22. Reyna,                     Although the Eleventh Circuit’s
for example, had appeared before the same            decision in United States v. Frazier, 283
judge three times, twice for violations of           F.3d 1242 (11th Cir. 2002), appears to
the terms of his supervised release.                 support the position that allocution is not
Although Reyna did not have the                      required at a revocation hearing, this
opportunity to allocute at his                       opinion was later vacated. 324 F.3d 1224
most recent revocation hearing, he “had              (11th Cir. 2003). The only other circuit
the opportunity to allocute both at his              court to endorse the initial position in
original sentencing and when resentenced             Frazier is the Tenth Circuit in an
following his first violation of supervised          unpublished decision. See United States v.
release.” Id. at *20. Reyna is thus                  Fennell, 986 F.2d 1430, 1992 WL 401587
distinguishable.                                     (10th Cir. 1992).

                                                 5
obvious.

        Based upon Adams, we also
conclude that prejudice to “substantial
rights” may be presumed in this case
because allocution could have played a
role in the Court’s sentencing decision.
252 F.3d at 287. First, there exists no
statutory minimum term of imprisonment
upon revocation of supervised release.
See 18 U.S.C. § 3583(e)(3) (permitting
imprisonment for “all or part” of the term
of defendant’s supervised release); see
also 18 U.S.C. § 3583(h). Second, even
though Plotts’s 30-month added prison
term was the lowest sentence within the
recommended Guidelines Manual range
of 30 to 37 months, the Court had
discretion to impose an even lower
sentence, as the revocation provisions in
the Guidelines are advisory policy
statements and not binding. See United
States v. Schwegal, 126 F.3d 551, 554-55
(3d Cir. 1997).

        Finally, denial of the right of
allocution “is not the sort of ‘isolated’ or
‘abstract’ error that we might determine
does not impact the ‘fairness, integrity or
public reputation of judicial
proceedings.’” Adams, 252 F.3d at 288
(citation omitted). As such, this is an
appropriate case in which to grant relief.

                 *****

       We reverse and remand to the
District Court for resentencing.




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