2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

UNITED STATES 

COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 02-4575

 

UNITED STATES OF AMERICA

v.

RICHARD PLOTTS,

Appellant

 

On Appeal from the 

United States District Court for the

Eastern District of Pennsylvania

D.C. Crim. Action No. 02-cr-00020-01

(Honorable Stewart Dalzell)

 

Submitted Under Third Circuit LAR

34.1(a)

October 30, 2003

Before: SCIRICA, Chief Judge,

NYGAARD and AMBRO, 

Circuit Judges

 (Opinion filed February 19, 2004) 

 

Robert Epstein

Assistant Federal Defender

Brett Sweitzer, Esq.

David L. McColgin, Esq.

Maureen Kearney Rowley, Esq.

Defender Association of Philadelphia

Federal Court Division

Curtis Center, Independence

Square West, Suite 540 West

Philadelphia, PA 19106

Attorneys for Appellant

Patrick L. Meehan

U.S. Attorney, Eastern District

of Pennsylvania

Laurie Magid

Deputy U.S. Attorney

Robert A. Zauzmer

Assistant U.S. Attorney

Terri A. Marinari

Assistant U.S. Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Richard Plotts appeals the District

Court’s decision revoking supervised

release and imposing a sentence of

imprisonment. Because Plotts was

denied the right of allocution at

sentencing, we reverse and remand to the
2

District Court for resentencing.1

I. Factual and Procedural Background

In July 1995, Plotts was arrested

in Delaware on the suspicion of bank

robbery. Shortly thereafter, a grand jury

returned an indictment against Plotts,

charging him with bank robbery in

violation of 18 U.S.C. § 2113(a). He

pled guilty to a single count and received

a sentence of 80 months imprisonment

followed by three years supervised

release. In February 2002 (after serving

his sentence and while on supervised

release), responsibility for his

supervision was transferred to the

Probation Office for the Eastern District

of Pennsylvania.

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

filed a petition to revoke Plotts’s

supervised release, alleging six violations

of his release conditions. The District

Court conducted a revocation hearing in

December 2002. The Government

presented the testimony of six witnesses. 

Plotts presented no evidence. After

considering the evidence and arguments

of counsel, the District Court found that

Plotts had: (1) been in possession of a

firearm; (2) engaged in credit card

fraud2; (3) used drugs, including opiates,

on repeated occasions; and (4) lied to his

probation officer.3 Following these

findings, the District Court revoked

Plotts’s supervised release and sentenced

him to 30 months imprisonment followed

by 30 months supervised release. Prior

to sentencing, Plotts was not given an

opportunity to address the Court, known

as allocution. He appeals, alleging that

(1) he was denied the right of allocution

at his release revocation hearing before

sentence was imposed, and (2) the

District Court improperly treated a

charged Grade C violation as a Grade A

violation for sentencing purposes (thus

increasing his sentence).4 

1

 In its brief, the Government states

it does not oppose resentencing in this

case. We commend the United States

Attorney’s Office for its candor and

professionalism.

2 While we are unaware of any

formal criminal charges against Plotts for

credit card fraud, he admitted to his parole

officer using another individual’s credit

card for an unauthorized purpose.

3 On appeal, Plotts and the

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

Court to explore on resentencing, it is

irrelevant to our resolution of this case. 

4 We have jurisdiction pursuant to

28 U.S.C. § 1291.
3

II. Standard of Review

As Plotts failed to preserve his

objections at the revocation hearing, we

review the decision of the District Court

for plain error. United States v. Adams,

252 F.3d 276, 279 (3d Cir. 2001); see

also Fed. R. Crim. P. 52(b). Under plain

error review, we may grant relief if

(1) the District Court committed an

“error,” (2) it was “plain,” and (3) it

affected “substantial rights” of the

defendant. United States v. Olano, 507

U.S. 725, 732 (1993). “A deviation from

a legal rule is [an] ‘error.’” United States

v. Russell, 134 F.3d 171, 180 (3d Cir.

1998) (citation omitted). It is “plain”

when “‘clear’ or ‘obvious.’” Id. (citation

omitted). In order for an error to affect

“substantial rights,” it must have been

“prejudicial”; in other words, “it must

have affected the outcome of the district

court proceedings.” Olano, 507 U.S. at

734. If these requirements are satisfied,

we should exercise our discretion to

grant relief if the error “‘seriously affects

the fairness, integrity or public reputation

of judicial proceedings.’” Id. at 736

(citation omitted); see also Adams, 252

F.3d at 284-85.

III. Analysis

We conclude that a criminal

defendant’s right of allocution extends to

release revocation hearings. Because the

District Court committed plain error in

denying Plotts’s right, we remand this

case for resentencing.5

5

 Plotts also argues the District

Court committed plain error by

mischaracterizing a Grade C violation,

unauthorized use of a credit card, as a

Grade A violation for sentencing purposes.

As resentencing is granted on the ground

that allocution was improperly denied, we

decline to entertain this alternative

argument. We note, however, that the

revocation petition filed by the Probation

Office with the District Court alleges a

Grade C violation. In its brief, the

Government concedes that Plotts’s actions

do not constitute a Grade A violation, but

instead insists they should be Grade B (not

Grade C). Because the petition already

alleges a Grade A violation (possession of

a firearm), Plotts would suffer little

prejudice if, prior to resentencing, the

Probation Office were to amend the

violation grade assigned to his

unauthorized use of a credit card. See U.S.

Sentencing Guidelines Manual § 7B1.4(a)

(listing the suggested imprisonment ranges

for Grades A, B and C violations). Until

revised by the Probation Office, however,

these actions remain as initially

characterized, a Grade C violation. See

generally 18 U.S.C. § 3603(2) (stating that

it is the duty of the probation officer to be

aware of the conditions of supervised

release and to report to the sentencing

court conduct which may violate those

terms); U.S. Sentencing Guidelines

Manual § 7B1.2 (same); see also Fed. R.

Crim. P. 32.1(b)(2)(A) (requiring that a

defendant at a revocation hearing receive
4

The rule in our Circuit is that

denying the right of allocution (at least in

sentencing hearings) will generally result

in resentencing under plain error review. 

Adams, 252 F.3d at 289. 

Rule 32(i)(4)(A)(ii) of the Federal Rules

of Criminal Procedure states a court

must, before imposing sentence, “address

the defendant personally in order to

permit the defendant to speak or present

any information to mitigate the

sentence.” In Adams, we concluded the

District Court in that case committed an

“error” that was “plain” by failing to

address the defendant personally prior to

sentencing. 252 F.3d at 286. With

regard to the “affects substantial rights”

portion of the plain error analysis, we

interpreted Olano as requiring “the

defendant to make a specific showing of

prejudice, unless he can show that the

error should be presumed prejudicial, or

that the error belongs in a special

category of errors that should be

corrected regardless of prejudice (i.e., the

category of structural errors).” Id. at

285-86. Prejudice should be presumed,

however, when a defendant shows the

violation of a right could “have played a

role in the district court’s sentencing

decision.” Id. at 287. We also stated that

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. All of

this is based on the belief that a

defendant is often his most persuasive

and eloquent advocate. Id. at 288.

While not constitutional, the right

of allocution is “ancient in origin, and it

is the type of important safeguard that

helps assure the fairness, and hence,

legitimacy, of the sentencing process.” 

Id. Accordingly, we concluded in

Adams that denial of allocution at the

defendant’s sentencing hearing was plain

error and warranted resentencing. Id. at

288-89.

We have not ruled whether a

defendant’s right of allocution extends to

a revocation hearing. The Federal Rules

of Criminal Procedure fail to define

explicitly the scope of allocution rights. 

Almost every circuit court to consider the

issue, however, has ruled that allocution

must be permitted before imposition of

sentence at a supervised release (or

parole) revocation hearing. See United

States v. Reyna, No. 01-41164, 2004

U.S. App. LEXIS 1134 (5th Cir. Jan. 26,

2004) (en banc)6; United States v. 

“written notice of the alleged violation”).

On resentencing, the District Court should

consider the effect, if any, of its alleged

mischaracterization in the first instance.

6

 The Reyna Court approved of the

plain error analysis in Adams, including

the conclusion that prejudice should be

presumed when violation of a right could

have affected a court’s sentencing

decision. 2004 U.S. App. LEXIS at *16. 
5

Waters, 158 F.3d 933, 944-45 (6th Cir.

1998); United States v. Patterson, 128

F.3d 1259, 1260-61 (8th Cir. 1997);

United States v. Rodriguez, 23 F.3d 919,

921 (5th Cir. 1994); United States v.

Carper, 24 F.3d 1157, 1160-62 (9th Cir.

1994); United States v. Barnes, 948 F.2d

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

other circuits, we too conclude that a

defendant’s right of allocution extends to

revocation hearings. 

For similar reasons, we conclude

that the District Court’s error in this case

was “plain.” An error may be clear or

obvious absent controlling Supreme

Court or Third Circuit precedent. United

States v. Evans, 155 F.3d 245, 251-52

(3d Cir. 1998). In such a case, decisions

from other circuit courts are instructive. 

See United States v. Barbosa, 271 F.3d

438, 456 (3d Cir. 2001) (relying on

previous decisions of two circuit courts

in finding plain error). In Plotts’s case,

the weight of appellate authority

discussed above is sufficient to render

the District Court’s error clear and

The Fifth Circuit, however,

disagreed with Adams somewhat as to

when an appellate court should exercise its

discretion in correcting a plain error. In

Adams, we stated without qualification

that denial of the right of allocution affects

the “fairness, integrity or public reputation

of judicial proceedings.” 252 F.3d at 288

(citation and quotations omitted). In

contrast, the Fifth Circuit concluded that

“[i]n a limited class of cases, a review of

the record may reveal, despite the presence

of disputed sentencing issues, that the

violation of a defendant’s right to

allocution does not violate the last Olano

prong. This case is a good example.”

Reyna, 2004 U.S. App. LEXIS at *19.

We are bound, however, to follow

Adams, and it carves out no exception on

its face. Further, the Reyna exception is,

by its own terms, limited; indeed, the Fifth

Circuit concluded that resentencing is

“ordinarily” required. Id. at *22. Reyna,

for example, had appeared before the same

judge three times, twice for violations of

the terms of his supervised release.

Although Reyna did not have the

opportunity to allocute at his

most recent revocation hearing, he “had

the opportunity to allocute both at his

original sentencing and when resentenced

following his first violation of supervised

release.” Id. at *20. Reyna is thus

distinguishable.

7 Although the Eleventh Circuit’s

decision in United States v. Frazier, 283

F.3d 1242 (11th Cir. 2002), appears to

support the position that allocution is not

required at a revocation hearing, this

opinion was later vacated. 324 F.3d 1224

(11th Cir. 2003). The only other circuit

court to endorse the initial position in

Frazier is the Tenth Circuit in an

unpublished decision. See United States v.

Fennell, 986 F.2d 1430, 1992 WL 401587

(10th Cir. 1992). 
6

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.