United States Court of Appeals

For the Eighth Circuit

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No. 17-1484

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jerry Ray Puckett

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: February 12, 2018

 Filed: March 19, 2018

[Unpublished]

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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

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PER CURIAM.

JerryR. Puckett pled guilty to two counts of escaping fromcustody in violation

of 18 U.S.C. § 751(a). The district court sentenced him to concurrent terms of 48 1

The Honorable Roseann Ketchmark, United States District Judge for the

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Western District of Missouri.
months’ imprisonment. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

Puckett argues his 48-month sentence (guidelines range 24 to 30 months) is

procedurally and substantively unreasonable because the court denied him “his right

to allocution prior to determining an upward variance” and imposed an “overly

punitive sentence” that failed “to give appropriate weight to the mitigating

circumstances.”

Puckett did not object to procedural error at sentencing, and this court reviews

for plain error. See United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008)

(“Procedural sentencing errors are forfeited, and therefore may be reviewed only for

plain error, if the defendant fails to object in the district court.”). “Under plain error

review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects

substantial rights. If these conditions are met, an appellate court may exercise its

discretion to correct a forfeited error only if it ‘seriously affects the fairness, integrity,

or public reputation of judicial proceedings.’” United States v. Vaughn, 519 F.3d

802, 804 (8th Cir. 2008) (internal citations omitted), quoting Johnson v. United

States, 520 U.S. 461, 467 (1997).

Puckett believes the “district court committed plain error when it failed to

sufficiently permit [him] to exercise his right to allocution prior to determining an

upward variance in imposing sentence.” This belief is without merit. Federal Rule

of Criminal Procedure 32 requires a district court “to permit the defendant to speak

or present any information to mitigate the sentence” before imposing a sentence. Fed.

R. Crim. P. 32(i)(4)(A)(ii). “[F]ailure to comply with Rule 32’s requirement of

affording a defendant the right of allocution constitutes reversible error per se which

mandates a remand for resentencing.” United States v. Patterson, 128 F.3d 1259,

1261 (8th Cir. 1997). However, if the district court allows a defendant to speak

before it imposes the sentence, it does not violate either Rule 32(i) or the United

States Constitution. See United States v. Hentges, 817 F.3d 1067, 1069-70 (8th Cir.

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2016). Here, although the court stated its intention to vary upward before allocution,

it allowed Puckett to speak before announcing the sentence. This is not error, let

alone plain error. See id. at 1070 (holding no plain error where district court

announced “its intention to impose a 132-month sentence before granting [defendant]

his right of allocution”). See also United States v. Williams, 109 F.3d 502, 513 (8th

Cir. 1997) (“[I]f, after imposing the sentence, a trial judge realizes the defendant has

not been afforded his right to allocution, the judge may correct the omission by

reopening the sentencing proceeding and subsequently addressing the defendant

pursuant to Rule 32.”).

Puckett contendsthe 48-month sentence issubstantively unreasonable because

the “district court failed to give appropriate weight to the mitigating circumstances

of Mr. Puckett’s well-documented and undisputed history of [drug] addiction.” This

court reviews “the imposition of sentences, whether inside or outside the Guidelines

range, [with a] deferential abuse-of-discretion standard.” United States v. Feemster,

572 F.3d 455, 461 (8th Cir. 2009) (en banc). The district court considered Puckett’s

drug addiction, noting his drug use put the public at risk when he possessed a firearm

and drove “on public streets under the influence of methamphetamine.” Thus, while

the court acknowledged he did not have a “desire to go and get high,” he was “too

dangerous” and lacked “respect for the law.” The district court explained its reasons

for varying upward based on the § 3553(a) factors including “the history and

characteristics of the defendant, the need to promote respect for the law, the need to

afford adequate deterrence to criminal conduct, and the need to protect the public

from further crimes of the defendant.”

The district court did not abuse its discretion.

* * * * * * * 

The judgment is affirmed.

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