US v. Vergil George, 11th Cir., filed October 6, 2017: Defendant entitled to resentencing when district court failed to allow him to allocate before imposition of sentence.

The Eleventh Circuit remands for re-sentencing when the judge did not provide George an opportunity to speak on his own behalf before it imposed its sentence.

The appellant here, George, raised several issues for the Court’s consideration, but I’m focusing on the one issue that entitled him to a new sentencing hearing– the judge’s failure to provide George with an opportunity to address the Court before he was sentenced.  Interestingly, after he was sentenced, the following occurred:

The Court: I want to make sure I gave the defendant — I did ask if the defense had anything further. I want to make sure that you understood that that included the defendant, if he had anything he wanted to say to me.

George: No, not at this moment. I’m okay, Your Honor. Thank you for everything.

The Court found this was not sufficient, and has granted George a new sentencing hearing.  “Allocution is the right of the defendant to make a final plea on his own behalf to the sentence before the imposition of sentence.”  United States v. Prouty, 303 F.3d 1249 1251 (11th Cir. 2002).  According to Rule 32 of the Federal Rules of Criminal Procedure, “before imposing sentence, the 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).

Because George did not object to the sentencing procedure at the time it happened, the Court reviewed the issue under the plain error standard.  Plain error requires (1) and error, (2) that is plain, (3) that affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.  United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017).

The Court found these elements met because, since Booker (which made the mandatory sentencing guidelines advisory and not mandatory), the judge has much wider discretion in sentencing a defendant.  If this were a mandatory minimum-type case, it might be impossible for a defendant to show that this error affects his or her substantial rights.  But here, the judge could have varied downward from the sentence imposed if convinced by George to do so.  He was therefore entitled to a presumption of prejudice, which satisfied the third prong of plain error analysis, and made it necessary for the Court to vacate his sentence.

Additionally, the Court’s remarks after his sentencing were insufficient to cure the error since it’s entirely likely that George refrained from saying anything additional because his sentence was already imposed. And also, the district court did not indicate that he was open to revising his sentence based on George’s allocution.  Therefore, the Court remands for a new sentencing hearing, this time allowing George to speak on his own behalf before the Court imposes its sentence.