FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTONIO URRUTIA-CONTRERAS,

AKA Antonio Urrutia,

Defendant-Appellant.

No. 14-50113

D.C. No.

3:13-cr-07085-

GT-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Gordon Thompson, Senior District Judge, Presiding

Argued and Submitted

February 5, 2015—Pasadena, California

Filed April 10, 2015

Before: Ronald M. Gould and Andrew J. Kleinfeld, Circuit

Judges, and Robert W. Gettleman, Senior District Judge.*

Opinion by Judge Gettleman

* The Honorable Robert W. Gettleman, Senior District Judge for the

U.S. District Court for the Northern District of Illinois, sitting by

designation.
2 UNITED STATES V. URRUTIA-CONTRERAS

SUMMARY**

Criminal Law

Vacating a sentence imposed for violation of the terms of

supervised release and remanding for resentencing, the panel

held that Fed. R. Crim. P. 32, which requires the district court

to solicit the government’s position with respect to

sentencing, should be used to “fill in the gap” in Fed. R.

Crim. P. 32.1, which is silent as to whether the government

must be given an opportunity to make a statement with

respect to revocation sentencing.

The panel held that the district court erred by failing to

give the government an opportunity to make such a statement

during the sentencing portion of the defendant’s revocation

proceeding, and that the error was not harmless.

COUNSEL

Kent D. Young (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter

and Lawrence E. Spong (argued), Assistant United States

Attorneys, San Diego, California, for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. URRUTIA-CONTRERAS 3

OPINION

GETTLEMAN, Senior District Judge:

Defendant-appellant Antonio Urrutia-Contreras appeals

from a 15 month sentence for violation of the terms of his

supervised release, which was imposed by the United States

District Court for the Southern District of California to run

consecutively to a 12 month sentence for illegal re-entry in

violation of 8 U.S.C. § 1326. We have jurisdiction under

28 U.S.C. § 1291, and vacate the consecutive sentence and

remand.

I.

The procedural history in this case is unusual. In

September 2011, after pleading guilty to a charge of illegal

re-entry in the District of Arizona, defendant was sentenced

to 15 months of imprisonment followed by a 3 year period of

supervised release. That sentence was based on a Guideline

offense level (after a fast-track reduction) of 10 and a

criminal history of IV, resulting in an advisory Guideline

sentence of between 15 and 21 months of imprisonment. The

court sentenced defendant to the low end of the Guideline

range.

As the government now concedes, however, the offense

level for that sentence was erroneously computed because it

was increased by 8 points based on a prior aggravated felony,

pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Defendant’s prior

conviction, in fact, was for a misdemeanor, not a felony, and

his correct offense level should have been 2 with a criminal

history of I, resulting in an advisory Guideline sentence of

between 0 and 6 months. Because this error was not
4 UNITED STATES V. URRUTIA-CONTRERAS

discovered until after defendant completed his custodial

sentence on April 1, 2012 (and was subsequently deported),

defendant served that sentence and was on supervised release

at the time he attempted to re-enter the United States illegally

in southern California on September 13, 2013.

In November 2013, jurisdiction for defendant’s

supervised release was transferred to the Southern District of

California and defendant was charged in an information in

that district with attempted illegal re-entry, to which he

pleaded guilty on October 31, 2013. On March 5, 2014, the

district court held both a sentencing hearing on defendant’s

guilty plea to attempted illegal re-entry and a revocation

hearing concerning his admitted violation of the terms of his

supervised release. The court sentenced defendant to 12

months of incarceration on the illegal re-entry charge (from

which defendant does not appeal) and heard argument from

defense counsel with respect to what defendant’s sentence

should be for violating the terms of supervised release by his

attempted re-entry.

Defense counsel argued that a 3 month consecutive

sentence was appropriate, for a total of 15 months in custody,

noting that defendant had already served more time than he

likely would have had the Guideline miscalculation not

occurred in 2011. The court also heard defendant’s personal

allocution, but did not solicit or otherwise ask for the

government’s sentencing recommendation. After noting that

the Guideline range for the violation was 12 to 18 months,

and citing United States v. Simtob, 485 F.3d 1058 (9th Cir.

2007), the court ordered a sentence of 15 months to run

consecutively to the 12 months imposed for attempted illegal

re-entry. When imposing the 15 month consecutive sentence,

the court stated that it had “considered the breach of trust
UNITED STATES V. URRUTIA-CONTRERAS 5

which even though it was not the correct sentence, [the

Arizona judge] did give [defendant] the low end of the

Guideline range. So certainly, she was putting a substantial

amount of trust in him at that time.” This resulted in a total

custodial sentence for the attempted illegal re-entry and

consequent violation of the terms of supervised release of 27

months.

Following the sentence, defense counsel immediately

objected “to the procedural and substantive

unreasonableness” of the sentence, arguing that the court “did

not ask the government to give its recommendation and it did

not acknowledge probation’s 12 month recommendation.”

The district judge summarily rejected that objection, stating,

“Well, you see, it’s the court’s judgment, not the U.S.

Attorney. This is not the U.S. Attorney’s decision, it’s the

court’s decision.”

Defendant bases his appeal on two grounds. First,

defendant argues that the district court committed error by

violating Fed. R. Crim. P. 32.1, in failing to “provide an

attorney for the government an opportunity to speak

equivalent to that of the defendant’s attorney,” as required by

Criminal Rule 32. Second, defendant argues that the sentence

is objectively unreasonable in light of the incorrect sentence

imposed in 2011 and other factors articulated in 18 U.S.C.

§ 3553(a). Because we agree that the district court violated

Criminal Rule 32.1, we vacate the sentence and remand the

case with directions to resentence defendant consistent with

this opinion. We do not reach defendant’s argument that the

15 month consecutive sentence was unreasonable.
6 UNITED STATES V. URRUTIA-CONTRERAS

II.

We review the district court’s compliance with the

Federal Rules of Criminal Procedure de novo. United States

v. Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010). We

begin by noting that Rule 32.1 primarily governs the

procedures at revocation proceedings. United States v.

Leonard, 483 F.3d 635, 638–39 (9th Cir. 2007). Although

Rule 32.1 grants a defendant the right to make a statement, it

is silent as to whether the government must also be given an

opportunity to do so. Rule 32, which governs sentencing

proceedings, however, provides that “[b]efore imposing

sentence, the court must . . . provide an attorney for the

government an opportunity to speak equivalent to that of the

defendant’s attorney.” Fed. R. Crim. P. 32(i)(4)(A)(iii).

This court has held in a number of cases that where Rule

32.1 is silent with respect to the matters that must be

considered by a district court in imposing a sentence for

violating the terms of supervised release, Rule 32 may be

used to “fill in the gap” in Rule 32.1. Thus, in United States

v. Whitlock, 639 F.3d 935, 940 (9th Cir. 2011), this court held

that the provisions of Rule 32(e)(3), permitting district courts

to refuse to disclose the probation officer’s sentencing

recommendations, should “fill in the gap” in Rule 32.1 with

respect to revocation proceedings. As noted in Whitlock, this

conclusion is consistent with our ruling in United States v.

Carper, 24 F.3d 1157 (9th Cir. 1994), in which the court

“filled the gap” in Rule 32.1 (as then written) to include the

defendant’s right to allocute at a revocation proceeding.

1

Whitlock, 639 F.3d at 939–40.

1 Rule 32.1 was amended in 2005 to provide for a right of allocution

during revocation proceedings. Fed. R. Crim. P. 32.1(b)(2)(E).
UNITED STATES V. URRUTIA-CONTRERAS 7

Like the defendant’s right to allocute and the probation

officer’s recommendation, the government’s position with

respect to the sentence to be imposed for violating the

conditions of supervised release is an important factor for the

sentencing court to consider and include in its reasoning. 

Particularly since the landmark decision in United States v.

Booker, 543 U.S. 220 (2005), and its progeny, the Supreme

Court and the circuit courts have emphasized the requirement

that district judges consider and discuss the sentencing factors

contained in the Sentencing Guidelines and 18 U.S.C.

§ 3553(a) when imposing a sentence.2

This requirement cannot be met if the district court fails

to solicit the government’s position, whether at a postconviction sentencing or at a revocation proceeding. We

have held that the failure to permit the government to speak

at a post-conviction sentencing is plain error. United States

v. Waknine, 543 F.3d 546 (9th Cir. 2008). As explained by

the court:

2

See, e.g., Rita v. United States, 551 U.S. 338, 356 (2007) (“The

sentencing judge should set forth enough [reasons for the imposed

sentence] to satisfy the appellate court that he has considered the parties’

arguments . . . .”); Gall v. United States, 552 U.S. 38, 49–50 (2007)

(“[A]fter giving both parties an opportunity to argue for whatever sentence

they deem appropriate, the district judge should then consider all of the

§ 3553(a) factors to determine whether they support the sentence

requested by a party.”); Peugh v. United States, __ U.S. __, 133 S. Ct.

2072, 2080 (2013) (“The district court must then consider the arguments

of the parties and the factors set forth in § 3553(a).”); see also United

States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006) (“[D]istrict courts

must provide specific reasons for their sentencing decisions, such that the

record on appeal demonstrates explicit or implicit consideration of the

sentencing factors set forth in § 3553(a).”).
8 UNITED STATES V. URRUTIA-CONTRERAS

[T]he plain language of Rule 32 appears to

contemplate that the government, like the

defendant, will have an opportunity for a

speaking role at the sentencing hearing before

the district court has made a decision on the

sentence. This is what we consider to be the

normal reading of Rule 32, which here

establishes what the court must do before

imposing sentence and which provides that

the opportunity of the government to speak

shall be ‘equivalent to that of the defendant’s

attorney.’ Thus, it cannot make sense under

this rule to have the defendant speak and then

the court announce its sentence without letting

the government speak responsively. The

district court, therefore, plainly erred when it

permitted Waknine and his counsel to speak

but did not give the government an

opportunity to speak before imposing a

sentence of 121 months of imprisonment.

Id. at 553.

We hold that this court’s rationale in Waknine applies to

a revocation proceeding under Rule 32.1, thus requiring the

district court to solicit the government’s position with respect

to sentencing for violation of the terms of supervised release. 

It may appear irregular for a court to make a decision as

important as imposing a sentence of incarceration without

soliciting the position of all parties. After the court has heard

arguments from the defense, and considered a

recommendation by the probation officer in the violation

report, the imposition of a sentence without hearing the

government’s recommendation may create the appearance of
UNITED STATES V. URRUTIA-CONTRERAS 9

the court standing in for the government, calling into question

the impartiality of the sentencing court.

Just as the government must be given the opportunity to

disagree with a defendant’s or a probation officer’s

sentencing recommendation, the government must be given

the opportunity to indicate agreement. Even silence in the

face of a well-articulated defense argument for a particular

sentence may convey the message to the sentencing court that

the government has no objection to, or even agrees with, the

recommended sentence. This is an important factor that the

district court must consider, although, of course, there is no

requirement that the district court agree with that position.

In the instant case, the district judge’s comment that it

was the court’s decision, and not the U.S. Attorney’s, could

be applied as equally to the defendant’s position on

sentencing as to the government’s. As noted by defendant in

his submissions on appeal, the parties’ positions may be even

more important in a revocation proceeding governed

primarily by Rule 32.1 than in an original sentencing

proceeding governed by Rule 32, because revocation

proceedings do not include extensive presentence

investigation reports and rarely have the benefit of extensive

briefing or written sentencing positions submitted before the

revocation proceeding itself. Indeed, the only time the

district court hears from the government in such cases is

usually at the revocation proceeding.

We also conclude that the error was not harmless. We

have held that where the defendant is denied the right to

speak at sentencing, there is prejudice if the district court had

discretion to impose a lower sentence. See, e.g., United

States v. Gunning, 401 F.3d 1145, 1147–48 (9th Cir. 2005). 
10 UNITED STATES V. URRUTIA-CONTRERAS

The parties do not dispute that the district court had such

discretion here. We hold that the same rule applies here,

where the government was not invited to speak, in light of

our discussion above noting that government support can

add substantially to the persuasiveness of a defendant’s

sentencing argument. See also United States v. Whitney, 673

F.3d 965, 973 (9th Cir. 2012). Also, we said in Waknine,

applying plain error review, that there was no showing that a

substantial right had been affected in part because the

government in that case had submitted a sentencing

memorandum before the post-conviction sentencing hearing. 

543 F.3d at 553–54. As we observed above, revocation

proceedings do not typically involve written sentencing

positions submitted before the hearing.

III.

For the foregoing reasons, we conclude that the district

court erred by failing to provide the government with an

opportunityto make a statement during the sentencing portion

of defendant’s revocation proceeding. We therefore vacate

the district court’s consecutive 15 month sentence and

remand the case with directions to resentence defendant

consistent with this opinion.

VACATED and REMANDED.