FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 25, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 01-12880

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D. C. Docket No. 00-00024-CR-SPM-1

UNITED STATES of AMERICA, 

Plaintiff-Appellee,

versus

SIDNEY CARL FRAZIER, 

a.k.a. Sydney Oliver, 

Defendant-Appellant.

___________________________

Appeal from the United States District Court

for the Northern District of Florida

___________________________

(February 25, 2002)

Before WILSON, HILL and FAY, Circuit Judges.

PER CURIAM:

Appellant Sidney Carl Frazier ("Frazier") appeals from the judgment of the

district court revoking his term of supervised release and sentencing him to additional

incarceration. Frazier argues that the district court erred by sentencing him for

violating the terms of his supervised release without allowing him to allocute before

imposing the sentence. Specifically, Frazier argues that the district court improperly
 On February 24, 2001, Beverly Slappy filed charges against Frazier for assault and battery. 

1

Allegedly, Frazier punched Ms. Slappy in the head and threw her on the ground, punching and

kicking her several times. Further, he threatened her with a tire iron and stole her money. 

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denied him his right of allocution pursuant to Rule 32 of the Federal Rules of

Criminal Procedure. We reject this argument and affirm.

Frazier was originally convicted of possessing counterfeit notes with the intent

to defraud, in violation of 18 U.S.C. § 472. On February 18, 1998, the district court

sentenced him to 15 months imprisonment followed by a three year term of

supervised release. Under the conditions of the supervised release, Frazier was not

to commit any federal, state or local crime.

Frazier began his term of supervised release on December 1, 1998. On April

14, 2000, the jurisdiction of his supervised release was transferred to the Northern

District of Florida. On April 6, 2001, the probation officer, alleging a violation of a

condition of his supervision, filed a Petition for Warrant for Offender Under

Supervision. Specifically, the petition alleged that Frazier had committed aggravated

assault and battery. On May 16, 2001, the district court, after conducting a hearing,

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found that Frazier had violated the terms of his supervised release and committed him

to an additional 24 months incarceration. The record is clear that prior to sentencing

the district court did not provide Frazier with an opportunity to personally address the

court. Frazier made no objection at the time.

 Where the defendant fails to make a timely objection, we review a district

court's failure to address a defendant personally at sentencing for plain error. United

States v. Gerrow, 232 F.3d 831, 833 (11th Cir.2000), rev'd on other grounds, United
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States v. Sanchez, 269 F.3d 1250 (11th Cir.2001) (en banc ). Further, this Court will

remand only if "manifest injustice" results from the omission. Gerrow, 232 F.3d at

834 (quoting United States v. Tamayo, 80 F.3d 1514, 1521 (11th Cir.1996)). After

reviewing the record, the parties briefs and the argument of counsel, we find no plain

error.

 This Court has not yet addressed the question of whether a defendant has the

right to allocute upon resentencing for violating the terms of his or her supervised

release. Rule 32 of the Federal Rules of Criminal Procedure specifies the process by

which a sentence and judgment are imposed upon a defendant following conviction.

Rule 32(c)(3)(C) provides a party with the right to allocute, requiring a district court

to, "address the defendant personally and determine whether the defendant wishes to

make a statement and to present any information in mitigation of the sentence,"

before the court imposes a sentence. Fed.R.Crim.P. 32(c)(3)(C). Effective December

1, 1980, Rule 32.1 was added to the Federal Rules of Criminal Procedure. It is

entitled "Revocation or Modification of Probation or Supervised Release," and

provides, in part, that at a revocation hearing, a person shall be afforded:

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

(C) an opportunity to appear and to present evidence in the person's own

behalf;

(D) the opportunity to question adverse witnesses; and

(E) notice of the person's right to be represented by counsel.

Fed.R.Crim.P. 32.1(a)(2).
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Appellant urges us to find that Rule 32.1 incorporatesthe provision of Rule 32

concerning the right of allocution. He bases his argument on the rationale used by

several of our sister circuits which have held that the right of allocution in Rule 32

applies at supervised release revocation hearings. See United States v. Patterson, 128

F.3d 1259, 1261 (8th Cir.1997) (holding that Rule 32 provides a defendant with the

right to allocute at supervised released revocation hearings); United States v.

Rodriguez, 23 F.3d 919, 921 (5th Cir.1994) (same); United States v. Carper, 24 F.3d

1157, 1162 (9th Cir.1994) (same). Although we find these decisions reasonable, we

find the conclusion of the Sixth Circuit in United States v. Waters, 158 F.3d 933 (6th

Cir.1998), more persuasive.

The focus of the discussion before us is whether Rule 32.1 also incorporates

the additional provisions of Rule 32 including, but not limited to, the right of

allocution. We think not. The appellant in Waters argued that the lower court erred

by failing to provide him with an opportunity to allocute prior to sentencing for

violating his supervised release. See id. at 942. In deciding that Rule 32.1 does not

incorporate the provisions of Rule 32, the court noted that, "[Rule 32.1] is silent with

respect to whether a defendant has a right to allocute before sentence is imposed at

a revocation hearing." Id. at 943. The court concluded that the right of allocution

specified in Rule 32 does not apply at supervised release revocation hearings. See id.

at 944. Were we to hold that Rule 32.1 incorporates all of the provisions of Rule 32,

the sentencing court would not only have to give the defendant a right to allocution,

it would have to require presentence investigation reports along with all of the other
 This Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior 2

to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en

banc ). 

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demands of the rule. See id. In our opinion, this would render Rule 32.1 superfluous.

However, given the importance of allocution, we agree that the better practice is for

district courts to provide defendants with an opportunity to allocute prior to the

imposition of a sentence based upon a violation of supervised release.

In suggesting this procedure we are mindful of what we did in United States

v. Eads, 480 F.2d 131, 133 (5th Cir.1973). In Eads, we sua sponte noted that the 2

defendant was not given the right to allocute prior to sentencing at a revocation

hearing which terminated his term of probation. See id. The Court, stressing the

importance of the right to allocute and the fundamental nature of such in the process

of imposing any sentence of incarceration, granted the appellant the right to allocute.

Although the right to allocution was granted to Eads, we recognize that a

revocation of probation is different from the revocation of supervised release. See

Waters, 158 F.3d at 943 (distinguishing sentencing for a violation of supervised

release from a probation violation). We also note that Rule 32.1 was not in existence

until 1980. Because Rule 32.1 is silent with respect to the right to allocute at a

revocation hearing, and since Eads does not control our situation, there exists no legal

requirement to grant a defendant the right to allocution at a revocation hearing for

supervised release. Consequently, Frazier's rights were not violated; and thus, there

is no error, plain or otherwise.

It does appear to us, however, that this question is one that should be addressed
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by the Advisory Committee on the Federal Rules of Criminal Procedure. The right

of allocution seems both important and firmly embedded in our jurisprudence. We

suspect that its omission from Rule 32.1 could be the result of a simple oversight.

In conclusion, the district court did not commit plain error in denying Frazier

an opportunity to allocute prior to imposing the sentence because there presently

exists no such requirement. Further, there was no manifest injustice that resulted

from the omission. The judgment of the district court is affirmed.

AFFIRMED.