F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J O H N F I T Z G E R

A L D D A N I E L S , Defendant-Appellant

. No. 13-50331

D.C. No. 2:90-cr-00652-SVW -5

OPI NI ON

A ppeal from the United States District Court for the Central District of California Stephen V. W ilson, District J u dg e, Presiding

Arg ued and Submitted J u ne 6, 2014—Pasadena, California

F iled J uly 23, 2014

B efore: Ronald M. Gould and N.R. Smith, Circuit J u dg es, and Edward R. Korman, Senior District J udg e. *

O pinion by

J udg e Gould

* T h e Ho n o rab le Ed w ard R. Ko rm an , Sen io r District J u d g e f o r th e U .S. District C o u rt f

o r th e Eastern District o f New Yo rk

, sittin g b y d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

Vacating a se n t e n c e imposed after r evocation o f supervised r elease and remanding for resentencing

, the panel held that F ed. R. Crim. P. 32.1(b)(2)(E) requires a c o u r t to address a supervised releasee personally to ask if he wants to speak before the court imposes a post-revocation sentence, and that a district court that does not offer a superv i s e d releasee the c hance to ex e r cise that rig h t commits plain error.

COUNSEL

K. Eliz abeth Dahlstrom ( arg u ed), Deputy F ederal P u blic D efender, Santa Ana, California; Sean K. Kennedy

, F e d e ra l P u blic Defender; B rianna F uller Mircheff, Deputy F eder al P u b l ic Defender, L os Ang eles, California, for D efendantAppellant.

Mónica M. Ramírez ( arg ued), Assistant U nited States Attorney ; André B irotte, J r., United States Attorney ; Robert E. Dug dale, Assistant United States Attorney
, L o s Ang eles, California, for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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OP INION

GOUL D, Circuit J udg e :

Defendant-Appellant J ohn F i t zg e r a l d D a niels (“Daniels”) appeals a 4 0-month senten c e imposed by the district court after revocation of h is supervised release. Daniels contends that the district court vio l at e d F ederal Rule of Criminal Procedure 32. 1 ( b ) ( 2 )(E) when it did not affirmatively offer him an opportunity

to allocute before imposing its sentence. W e have jurisdict i o n under 18 U.S.C. § 3742(a) a nd 2 8 U

. S.C. § 1291, and we vacate and remand f o r resentencing

.

I

I n F ebruary 1991, Daniels was sen t enced to 2 0 y ears in federal prison, to be f

ollowed by 10 y ears of supervised release, a fter pleading g uilty to possessi o n with intent to distribute cocaine, in violation o f 21 U.S.C. § 841. He served

more than 17 y ears of his sentence b e f o re being released in J une 2008, when his term of supervised release beg a n. 1

I n October 2012, L os Ang e les police officers pulled over

a vehicle driven by Dani e l s

. During a search, the officers found marijuana, drug t rafficking p araphernalia such a s plastic bag s and dig ital scales

, a nd other indicia of d rug trafficking including c e ll phones and c ash. Daniels admitted
to the arresting officers that he w as driving on a suspen d ed license and that he sold sma l l q u a ntities o f marijuana “to make ex tra cash from time t o t i m e.” Daniels faced charg e s

1 T h e co n d itio n s o f Dan iels’ su p erv ised rel e a s e w e r e tw i ce

m o d if ied —f irst in A u g u st 2 0 1 0 , an d ag ain

in Octo b er 2 0 1 2

.U N I T E D S T A T E S V

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for (1) being a convicted f elon in possession of a firearm, see C al. Penal Code § 29900(a)(1); (2) transporting marijuan a,

see Cal. Health & Safety Code § 11360(a); (3) p o s s e s s ing

ma r i j u a n a for sale, see id. § 11359; and (4) driving a motor vehicle when his driving p rivileg e was suspended or r evoked,

see Cal. Veh. Code § 14601.1(a). 2

On F ebruary 4, 2013, the United States Probation Office filed a petition in the dist r ict court to revoke Daniels’ supervised release based on alleg a tions (1) throug h (4) above,

as well as h i s f

ailure to complete a court-ordered residential

r ecovery prog ram ( “ a lleg ation ( 5)”). Daniels admitt e d alleg ations (1), (2), and (5), but denied alleg ations (3) and (4). A t a J uly 15, 2013, evidentiary hearing

, the district cou r t found that the Govern

m e n t had established alleg ations (3) a nd (4) b y clear and convincing evidence, and sentenced Daniels
to 40 months imprisonment a nd 20 mon t hs of supervised release “under the same terms and con d itions previously imposed.” To justify its sentence, the district court reasoned that it had considered factors other than t h e Sentencing Guidelines, including “the defendant’ s h i story , the need for deterrence and, of course, respect for the law and the fact that these crimes were com m i t t e d while he was on supervised release, a nd there was a series o f crimes, and in order to justly punish and uphold the respect for law.” Daniels did not ask
to speak before sentencing

, and t h e d i strict court d id not affirma tively tell him that he could speak. This appeal followed.

2 Dan iels p lead ed

g u ilty to ch arg es (1 ) an d (2 ) in Calif o rn ia state co u rt

o n J an u ary 2 8 , 2 0 1 3.U N I T E D S T A T E S V

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II

Daniels and the Government d isag ree about the appropriate standard of review on Daniels’ claim that the district court v iolated Rule 32.1. W e g enerally revi e w de

novo a district court’s compliance with the F ederal R u l es o f Criminal Procedure. See United State s v

. Pineda-Doval

, 614 F .3d 1019, 1040 (9th Cir. 2010). T here is no d i s p u t e, however, that Daniels did no t contemporaneously object to the district court’s failure affirmatively to offer h im a chance to allocute before sentencing

.

W h ere a d e fendant raises a particular objection to his
sentence for the first time on appeal, our review is usually for plain e rror. See United States v. Gonzalez-Aparicio

, 663 F .3d 419, 426 (9th Cir. 2011) ( a p ply ing “the well-established plain

error standard of review with respect to alleg ed sentencing

errors n ot raised below”); United States v. W aknine

, 543 F .3d 5 4 6
, 551 (9th Cir. 2008) (reviewing for p lain error a defendant’s sentencing objections raised for the first time on appeal)

. And y et, Daniels contends that our p recedent commands a harmless error analy sis i n d e nial-of-allocution

cases—even in revocation sentencing proceeding s, and even where the objection was not raised below. See United States

v. Carper
, 24 F .3d 1157, 1162 (9th Cir. 1994 ) ( “ W e r eview the d istrict court’s f

a ilure to afford appellant his rig ht o f allocution f

or har m l e ss error.”); see also United States v

. Gunning
, 401 F

. 3 d 1145, 1147 (9th Cir. 2005) (s ame). The Government acknowledg es that we h ave in the past reviewed such cases for harmless e rror, but contends that int e r v e n i ng Supreme Court decisions clarify ing the broad scope of plain

error review require u s n o w to apply that standard. See United States v. Marcus
, 5 6 0 U

. S

. 258 (2010); Puckett v

. United States , 556 U.S. 129 (2009).U N I T E D S T A T E S V

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B e cause we conclude t h a t Daniels would prevail under either standard, we need not resolve that question h e r e

. See United States v. Y

oung , 470 U .S. 1, 1 6 n.14 (1985) (clarify ing that a plain error is, by definition, not harmless, and that there

can be no “harmless plai n e r rors”). F or purposes of this appeal, then, we a ssume w i t h out deciding that plain error review applies.

A plain error is one “that affects substantial rig hts.” F ed. R. Crim. P. 52(b). To establish that the district court’s Rule 32.1 error was plain, Daniels must “show that t h e d istrict
court made (1) an e r

ror (2) that was clear or obvious, (3) that affected substantial rig hts, and ( 4) that seriously affected the fairness

, i n t e gr ity or public reputation of judicial proceeding s.” United States v. Castillo-Marin

, 684 F .3d 914, 918 ( 9th Cir. 2012). Any error affected Daniels’ substantial rig hts o n ly if it was “ prejudicial” and “affected the outcome of the district court proceeding s.” United States v

. Olano

, 507 U.S. 725, 734 (1993).

III

The F ederal Rules o f Criminal Procedure require a court, before impos i n g its sentence, to “address the defendant personally in order to permit the d efendant to speak or present any information to mitig a te the sentence.” F ed. R. Crim. P. 32(i)(4)(A)(ii). I

n U nited States v. Carper

, we held that this requirement applies with equal force “ to senten c i n g a fter revocation of supervised release when the district court imposes a new sentence based on conduct that oc c urredU N I T E D S T A T E S V

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during supervised re l e a s e.” 24 F .3d at 1162. 3 B ut Carper

was dec ided in 1994, when Rule 32.1 by its terms g ave supervised releas ees facing revocation no more than “an opportunity to appear a

nd to present evidence in [ their] behalf.” F e d. R. Crim. P. 32.1(a)(2)(C) (1994). I n 2 0 05, Rule 32.1 w a s a mended to g ive supervised releasees “an opportunity to make a statement and present any information in mitig ation” a t their revocation proceed i n gs

. Id. R. 32.1(b)(2)(E) (2006). That lang uag e is in force today

. See id. R

. 3 2

. 1 ( b ) ( 2 ) ( E )

. T h e a d v i s o ry c o m m i t t e e n o t e accompany

ing the 2005 amendment cla r i f i es that “[ t] he amended rule recog niz es the importance of allo c u tion,” a nd
states that “the c ourt is required to g ive the defendant the opportunity to make a statement and p resent any mitig ating information.” Id. R. 32.1 advisory committ e e’ s note ( 2005 amend.). A nd in 2007, we said that “sente n c i n g p r ocedures for probation and supervised release violations are p rimarily
g overned b y Rule 32.1 of the F ederal Rul e s of Criminal Procedure, not Rule 3 2.” United States v. Leonard

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

Daniels conten d s that the district court v iolated Rule 32.1(b)(2)(E) when it did not affirmatively offer h im an opportunity to allocute b efore imp o sing its sentence. The Government, o n t

h e other hand, acknowledg es that the district
court did n ot p ersonally ask D aniels whether he wanted to speak before sentencing him, but arg ues th a t R ule 32.1(b)(2)(E) does not mandate “a personal invitation to speak before t he imposition of a sentence.” Rather, the Government sug g ests, the Rule’s allocution p ro vision is

3 T h e v ersio n o f th e Ru le t o w h ich w e ref

erred in Ca rp er

—Ru le 3 2 (a)(1 )(C)—h as sin ce b eco m e R u le 3 2 (i)(4 )(A )(ii). T h e m ean in g o f th e tw o v ersio n s, h o w ev er, is su b stan tially th e sam e.U N I T E D S T A T E S V

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passive; it “requires only an opportunity to make a statement and present a

ny information in m itig ation during the revocation hearing .” 4 T h e Government’s p osition is, in

e ssence, that a court should honor a supervised releas e e ’s request to a llocute, but need not tell him of his rig ht to do so before imposing its sentence.

T h e Government misreads the Rule. The 2005 amendment to Rule 32.1 did not detract from our holding in Carper tha t a d i s t rict court errs “by f ailing to address [ a supervised releasee] p ersonally to determine if he wishe[ s] to speak on his own behalf before imposing sentence.” 24 F .3d
at 1162. Th e d rafters of the F ederal Rules of Criminal P ro cedure intended for Rule 32.1(b)(2)(E) to r equire cour t s “to g ive the defendant the opportunity to m ak e a statement and present any mitig ating information.” F ed. R. Crim. P. 32.1 advisory

committee’s note (2005 amend.).

Allocution by a supervised releasee g ives the c ourt more information on which to base its sentence. I t also encourag e s the supervised r eleasee to participate i n post-revocation sentencing

, enhancing his dig nity

. As one commentator has said, “allocution provides off e n ders the opportunity to contest any disputed factual bases for sen t e n c i n g and persuade the judg e to choose a favore d s entence a lternative.” Arthur W. Campbell, La w o

f Sentencing § 9:18 (2013). I ndeed, allocution “‘is much more than a n empty ritual: it represents

4 A cco rd i n g to th e Go v ern m en t, “ [i]t d o es n ot m atter

. . . th at th e d istrict

co u rt d id n o t ad d ress [Dan i els] perso n ally an d in v ite h im to s p eak b ef ore im p o s in g sen ten ce.” Becau se th e d istric t c o u rt d id af f o rd Dan iels— t h ro u g h h is co u n sel—m u ltip le o pp o rtu n ities to s p eak b ef ore

sen ten cin g , th e Go v ern m en t’ s th eo ry ru n s, th e d istrict co u rt d id n o t v io l ate Ru le 3 2 .1

.U N I T E D S T A T E S V

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a defendant’s last o pportunity to p le a d h i s case or ex press remorse.’” I

d. (quot i n g S tate v. Green
, 738 N.E.2d 1208, 1221 (Ohio 2000)). W e hold that Rule 32.1(b)(2)(E) requires

a court to address a supervised releasee personally to ask if he
wants to speak b efore the court imposes a post-revocation
sentence.

I n so holding

, we reject the Government’s sug g e stion that Rule 32.1 req u i res only that a supervised releasee’s lawy er may speak before imposition of sentence. Such a n ar r ow reading would stand in stark contrast to our precedent under Rule 32, see United States v. Navarro-Flores

, 628 F .2d 1178, 1184 (9th Cir. 1980) (noting that Rule 32 “is n o t complied with when the sentencing judg e affords only t o c ounsel the

o p portunity to speak”), a

nd would d o nothing to furthe r t h e in t e r e s t s o f justice or the dig nity of the individual who is being sentenced.

W e also reject the Gove r n m e n t’s contention that the district c ourt satisfied its oblig a tions under Rule 32.1 when it sentenced Daniels. Nothing in the record resembles the kind of personal invitation that Rule 32.1 comman d s

. The Government alludes to the district court’s colloquy with Daniels’ c ounsel, citing it a s evidence that Daniels had an opportunity to make a statement a n d to prese n t m i t ig ating information b e fore he w as sentenced. That Daniels’ counsel

was a ble to arg ue for his client, however, is an inadequate substitute for Daniels’ rig ht to allocute on behalf of himself. See Green v. United States , 365 U.S. 301, 304 (1961) (“The
most persuasive c o u n s e l may not be able to speak for a defendant as the defendant mig ht, with halting elo quence, speak for himself.”).U N I T E D S T A T E S V

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Our holding confirms our stat e m e n t in U nited States v

. W hitlock

, 639 F .3d 9 35 ( 9th Cir 2 011), that the 2005 amendment to Rule 32.1 “effectively codif[ ied] the holding in Carper b y ex plicitly enumerating the rig ht to a llocution at supervised r elease revocation sentencin g h e a r i n g s , ” id. at 940. And it comports with the views of our sister circuits that have addressed this issue since 2005. See, e.g. , U nited States v

. Gonzal e z , 529 F .3d 94, 9 7 (2d Cir. 2008) (“This rig ht o f presentence allocution applies to sentences imp o sed for revocation of supervised release.”); United States v. Carruth

, 528 F .3d 845, 847 (11th Cir. 2 008) (per c uriam) (“[ T] he rig ht
to allocute under R u le 32.1 is clearly not substantively d i f f erent from the rig ht to allocute u nder Rule 32.

. . . T h e court must personally ex tend to the defendan t the r ig ht o f allocution.”); United States v. Pitre
, 504 F .3d 657, 6 6 1

– 62 (7th Cir. 2007) (“Rule 32.1 requires a district court to ask the defendant if she wishes to make a statement for the c ourt to consider before imposing a term of reimprisonment following revocation o f supervised release.”); cf. United States v

. Robertson

, 537 F .3d 859, 862 (8th Cir. 2 008) (questioning the reasoning o f United States v. Carruth a n d U nited States v

. Pitre
, but assuming without deciding that Rule 3 2.1 “ at least requires the district court

. . . t o ad d r ess the defendant
p e rsonally and make it c lear he has a rig ht to m a k e a statement a

n d present any information in mitig ation” (internal quotation marks omitted)).

IV

The district court erred when it did not personally address Daniels to inquire whether he wished to s p e a k before sentencing

. To show that this error was plain, Daniels must demonstrate that i t (1) was “clear or o bvious”; (2) “affected substantial rig hts”; and (3) “ seriously affected the fairness,U N I T E D S T A T E S V

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integ rity or public reputation of judicia l p roceeding s.” Castillo-Marin , 684 F .3d at 918.

W e recog niz e that Rule 32.1’s allocution provision does
not mirror its Rule 32 counterpart. Compare F ed. R. Crim. P. 32.1(b)(2)(E) (stating that a supervised releasee is entitled to “an opportunity to make a statement and present any inform a t ion in mitig a tion”), with id. R. 32(i)(4)(A)(ii) (requiring a sentencing court to “ address the d e f e n d ant personally in order to permit the defendant to speak or present any information to mitig a te the sentence”). Nonetheless, we conclude that the district court’s error was “clear or obvious.” See Castillo-Marin , 684 F .3d at 918. W e do so because the plain lang uag e of Rule 3 2.1—and particularly o f the advisory committee note acco m pany ing the 2005 amendment to that Rule—make clear that, despite t h e ling uistic differences between Rules 32 a

nd 32.1, a court eng ag i n g in postrevocation sentencing must personally a d dress a supervised releasee to ask if he wants to speak before sen t e n cing

. See F ed. R. Cr i m

. P

. 32.1 advisory committee’s note ( 2005 amend.) (“[ T] he court is required to g i v e the defendant the opportunity to make a statement and p resent any mitig ating information.”).

An error affects substantial rig h ts only if it was “prej u d i c i a l” and “affected the outcome of the district court proceeding s.” Olano

, 507 U.S. at 734. I n the sentencing
contex t, we have held that “when a plain error may h ave led
to a sentence that was

. . . long er than necessary

. . . that error affects substantial rig hts.” United States v. Joseph

, 716 F .3d 1273, 1 280 ( 9th Cir. 2013) (internal qu o t a t i on marks omitted). More specifically

, o ur denial-of-allocution
p r e cedent is “ quite c lear: when a district court could have lowered a defendant’s sentence, w e h ave presumed prejudiceU N I T E D S T A T E S V

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and r emanded, even if we doubted that the district court would have d one so.” Gunning
, 401 F .3d at 1149 (collecting cases).

Daniels a

rg ues that b ecause t he district court h ad discretion to sentence him to a term of fewer than 40 months, its failure to offer him a personal invitation to allocute before sentencing was prejudicial. T h e Government, by contrast, sug g ests that “remand would be pointless” because (1) there is no indication that Daniels “would h a v e even availed himself of an invitation to or a l l y supplement his defense counsel’s statemen t s a

n d arg ument had the district court offered one,” and ( 2) Daniels cannot show “that the district
court would h a v e g iven him a lig hter sentence if he actually had supplemented defense counsel’s s t atements a nd
arg ument.” I ndeed, the G overnment theoriz es that “nothing that [ Daniels] mig ht have said du r ing an oral allocution would have been likely to motivate th e court to impose an even shorter sentence.”

That ar g u m e nt is p ure c onjecture. B ut even if it were true, it would not b e controlling

. T h e d i strict court h ad “discretion to impose a sentence shorter than the o n e i t selected.” Carper
, 24 F .3d at 1 162. I t could have sentenced Daniels to a term of f ewer th a n 40 months. The Government’s speculat ive sug g estion that the district court would not have f

ur ther reduced Daniels’ sentence even if it ha d heard directly f

rom him, then, is beside the point. The district court’s denial o f D aniels’ rig ht to all o c u te was “prejudicial” and “affected the o utcome of the

. . . proceeding s,” Olano , 507 U .S. at 7 34, precisely because the district court could h ave imposed a more lenient sentence after hearing Daniels speak, see Gunning
, 401 F .3d at 1149.U N I T E D S T A T E S V

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I n our view, the d is t r i c t court’s p lain error affected Daniels’ substantial rig h ts. See Joseph , 716 F .3d at 1280.

“I n e x ercising the rig ht to allocution, a defendant has the rig ht to fully present al l a vailable accurate information bearing on mitig ation o f p unishment, a nd the district court has a d uty to listen and g ive careful and serious consideration
to such informat i o n

. ” United States v. M ack

, 2 00 F .3d 653, 658 (9th Cir. 2000). Daniels was d enied this rig ht—and the district court did not fulfill i t s d u t y —when D aniels was not told of his rig ht to speak before sentencing

.

W e d o not know what Daniels mig ht have said if t h e district court ha d offered him a chance to speak before imposing its senten c e. B ut whether he would have said something to elicit a lower sentence is of n o m o m e n t. See United S tates v

. M edrano

, 5 F

. 3d 1214, 1219 (9th Cir. 1993). The rig ht to allocute, and to be told that al l o cution is an option, is both important to the person being sentenced a nd fundamental to our criminal justice sy stem. Su p ervised releasees—like criminal defendants—have an absolute rig ht to speak before the penalty imposed by law is handed down. A district court that does n o t o f f er a supervised releasee the chance to ex ercise that rig ht commits plain error.

W e v acate Daniels’ sentence and remand to t h e d i strict court for proceeding s consistent with our opinion. 5

VACATED and REMANDED.

5 B ecau se w e v acate an d rem an d D an i els’ sen ten ce b ased o n th e d istrict

co u rt’ s v io latio n o f Ru le 3 2. 1 (b )(2 )(E), w e n eed n o t reach Dan iels’ altern ativ e arg u m en t

th at th e d istrict co u rt co m m itted p ro ced u ral erro r.