In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3935

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PATRICIA PITRE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 925—Harry D. Leinenweber, Judge.

____________

ARGUED JULY 10, 2007—DECIDED OCTOBER 3, 2007

____________

Before BAUER, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. While serving a term of supervised release, Patricia Pitre tested positive for cocaine. As

a result, the district court revoked her supervised release

and imposed a term of 18 months’ reimprisonment followed by 18 months’ supervised release. Ms. Pitre timely

appeals her term of reimprisonment on the grounds that

the district court imposed judgment without inviting her

to allocute or without considering the applicable policy

statements and imprisonment range set forth in § 7B1.4

of the guidelines. For the reasons set forth in this opinion,

we affirm the judgment of the district court.
2 No. 06-3935

I

BACKGROUND

After pleading guilty to mail fraud, credit card fraud and

conspiracy to commit credit card fraud, Ms. Pitre was

sentenced to six months’ imprisonment followed by a

single three-year term of supervised release. Ms. Pitre

was released from prison and began serving her term of

supervised release in November 2004. As relevant to this

appeal, the conditions of her supervised release required

her to refrain from unlawful drug use, to submit to periodic drug testing and to participate in drug aftercare.

Within two weeks of her release from prison, Ms. Pitre

violated the conditions of her supervised release when

she tested positive for cocaine. She then tested positive on

four more occasions over the next three months. On the

recommendation of her probation officer, Ms. Pitre voluntarily entered a 30-day drug rehabilitation program.

Following completion of the program, Ms. Pitre remained

clean for almost five months before testing positive for

cocaine three more times in August 2005. As a result, the

district court ordered her to serve 120 days at the Salvation Army Community Correctional Center, where she

would receive inpatient drug treatment. Ms. Pitre completed that program in February 2006, but met with only

short-term success; in June 2006 she once again tested

positive for cocaine.

Given her history of illegal drug use and the lack of

further treatment programs available through the probation office, Ms. Pitre’s probation officer petitioned the

district court to revoke her supervised release. The probation officer determined that Ms. Pitre had committed a

Grade C violation, resulting in a guidelines imprisonment
No. 06-3935 3

range of three to nine months. However, the probation

officer recommended that Ms. Pitre be reimprisoned for

18 months to ensure that she would be able to complete

the in-custody drug treatment program provided by the

Bureau of Prisons. The probation officer further recommended that this term of reimprisonment be followed by

18 months’ supervised release. The probation officer also

noted that revocation of Ms. Pitre’s supervised release

was mandatory because she had tested positive for cocaine more than three times during the past year. See 18

U.S.C. § 3583(g)(4).

The hearing to revoke Ms. Pitre’s supervised release

proceeded in two parts. It initially convened on August 31,

2006. The Government presented evidence that Ms. Pitre

had tested positive for cocaine on four occasions during the

preceding year; the most recent positive result was 16 days

before the hearing. The Government sought 18 months’

imprisonment to ensure that Ms. Pitre could enter and

complete the Bureau of Prisons’ nine-month drug treatment program. The Government also requested an equal

term of post-incarceration supervised release. Ms. Pitre,

through counsel, objected to the proposed term of incarceration and subsequent supervised release. Counsel noted

that she had been employed gainfully and had obtained

an apartment while on supervised release. Counsel then

suggested that the court continue the revocation hearing

for 30 days to see how she did with respect to drug tests

over that period.

The district court agreed to continue the hearing for 30

days, but warned Ms. Pitre that, if she missed or failed

any drug tests in that time, she would be reimprisoned

for 18 months. Ms. Pitre acknowledged these conditions:
4 No. 06-3935

THE COURT: I will continue the matter for 30 days

and if she is dirty at all then she is getting the 18

months, and if not, then—if she can stay off for 30 days

then we will maybe give her another 60 days or so,

but one dirty drop or if she fails to show, I mean it, it

is going to be automatic. Do you understand that?

DEFENDANT: Yes.

THE COURT: I don’t know if that will do any good or

not, but you know, I am not going to hear any arguments one way or the other, you are going for the

18 months if you miss a drop or if you have a dirty

drop, okay?

DEFENDANT: Okay.

R.114-1 at 11.

When the hearing reconvened on October 3, 2006, the

Government reported that Ms. Pitre had tested positive

twice since the continuance. Ms. Pitre, through counsel,

conceded the Government’s account, but requested that

the court recommend that her sentence be served as

close to Chicago as possible. Counsel advanced no arguments against her reimprisonment, including the length

of reimprisonment. Without affording Ms. Pitre an opportunity to address personally the court, the district court

then revoked Ms. Pitre’s supervised release and imposed

the term of reimprisonment recommended by the Government. Neither Ms. Pitre nor her counsel objected to the

lack of opportunity for Ms. Pitre to allocute.
No. 06-3935 5

II

DISCUSSION

Ms. Pitre now appeals her sentence of reimprisonment on

two grounds. First, she contends that the district court

must reconsider the terms of reimprisonment and supervised release because they were imposed without inviting her to allocute. Second, she submits that the district

court abused its discretion when it imposed an 18-month

term of reimprisonment because the court failed to consider the imprisonment range or policy statements set

forth in U.S.S.G. § 7B1.4 before imposing sentence.

A.

Ms. Pitre concedes that she forfeited her challenge based

on the denial of her right to allocute. Therefore, our

review is limited to plain error. United States v. Luepke,

No. 06-3285, 2007 WL 2091227, slip op. at 10 (7th Cir. Jul.

24, 2007); United States v. Reyna, 358 F.3d 344, 348-50 (5th

Cir. 2004) (en banc).

Plain error review requires us to determine whether:

(1) error occurred; (2) the error was plain; and (3) the

error affected the defendant’s substantial rights. United

States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007). If these

criteria are met, we may reverse, in an exercise of discretion, if we determine that the error “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.; accord United States v. Olano, 507 U.S. 725,

732 (1993).
6 No. 06-3935

1.

A criminal defendant’s right to address the court on her

own behalf at sentencing long has been recognized at

common law and has been incorporated into Federal

Rule of Criminal Procedure 32. See Green v. United States,

365 U.S. 301, 304 (1961); Fed. R. Crim. P. 32(i)(4)(A)(ii); see

also United States v. Barnes, 948 F.2d 325, 328-29 (7th Cir.

1991). Although Rule 32 does not govern specifically

revocations of supervised release, Federal Rule of Criminal Procedure 32.1 was amended in 2005 to state explicitly that the defendant is entitled to address the

court during a hearing to revoke supervised release. See

Fed. R. Crim. P. 32.1(b)(2)(E); Fed. R. Crim. P. 32.1 advisory

committee’s note.

Unlike Rule 32’s right to allocution, which requires the

court to “address the defendant personally in order to

permit the defendant to speak or present any information to mitigate the sentence” before imposing its sentence,

Fed. R. Crim. P. 32(i)(4)(A)(ii), Rule 32.1 states only that

the defendant “is entitled to . . . an opportunity to make a

statement and present any information in mitigation,” Fed.

R. Crim. P. 32.1(b)(2)(E). The Government contends that,

as a result of this difference in language, Rule 32.1 imposes

a lesser obligation on the district court at revocation of

supervised release than that imposed by Rule 32 at initial

sentencing. However, the language of amended Rule 32.1

tracks the language of an earlier version of Rule 32 that

the Supreme Court interpreted as granting criminal

defendants a personal right to allocution and as imposing

on trial judges a duty personally to invite defendants to

speak before sentencing. See Green, 365 U.S. at 303 n.1; see

also Luepke, slip op. at 11-12 & n.5 (discussing history of

right to allocution under Rule 32). We therefore hold
No. 06-3935 7

that the right to allocution created by Rule 32.1 is not

substantively different than the right created by Rule 32.

Rule 32.1 requires a district court to ask the defendant if

she wishes to make a statement for the court to consider

before imposing a term of reimprisonment following

revocation of supervised release. Cf. Green, 365 U.S. at 304;

Luepke, slip op. at 12-13 (collecting cases).

In this case, there is little question that the district court

did not address directly Ms. Pitre and give her an opportunity to allocute prior to imposing reimprisonment. At the

August 2006 revocation hearing, the court asked her two

closed-ended questions and issued a warning that failure

to remain clean would result in 18 months’ incarceration.

When the hearing resumed on October 3, 2006, even

though Ms. Pitre interjected, through counsel, a request

that the district court recommend that her imprisonment

be as close to Chicago as possible, at no time did the court

ask Ms. Pitre if she wished to address the court or otherwise open the door to comment. Under these circumstances, as a practical matter, Ms. Pitre had no chance to

speak on her own behalf. See Reyna, 358 F.3d at 346-50

(finding plain error where court asked defendant only

pointed questions and issued warnings but did not

invite defendant to speak in mitigation).

2.

We now must consider whether this error affected Ms.

Pitre’s substantial rights. The Supreme Court has stated

that the burden of establishing whether a defendant’s

substantial rights were affected by an error generally

requires the defendant to demonstrate prejudice. See Olano,

507 U.S. at 735. In cases where a defendant’s right to
8 No. 06-3935

allocution has been violated, however, “a reviewing

court should presume prejudice when there is any possibility that the defendant would have received a lesser

sentence had the district court heard from [her] before

imposing sentence.” Luepke, slip op. at 15; see also Reyna,

358 F.3d at 351-52; United States v. Adams, 252 F.3d 276,

285-86, 289 (3d Cir. 2001). But cf. United States v. Cole, 27

F.3d 996, 999 (4th Cir. 1994) (declining to adopt a per se

rule that denials of the right to allocution are prejudicial).

In Luepke, we addressed the quandary facing a defendant who must prove prejudice resulting from a violation of the right to allocution:

It would be almost impossible to determine whether,

in the context of the advisory guidelines and the

court’s balancing of the statutory sentencing factors,

a defendant’s statement, that was never made, would

have altered the conclusions of the sentencing court.

That the right to allocution, properly afforded, could

have had such influence is the most we reasonably

can expect a defendant to demonstrate.

Slip op. at 16. Given the nature of the right and the dearth

of input from Ms. Pitre, we cannot conclude that Ms. Pitre

would not have received a lesser sentence had she been

allowed to address the court.

3.

We now turn to our final inquiry under the established plain error analysis: Whether the interests of justice

dictate that we exercise our discretion to correct the

error. We shall exercise our discretion in such a manner

when the error “seriously affect[s] the fairness, integrity,
No. 06-3935 9

or public reputation of judicial proceedings.” Johnson v.

United States, 520 U.S. 461, 467 (1997) (citing Olano, 507 U.S.

at 732) (modification in original).

Remand ordinarily is required when a defendant has

been denied the right to allocution. Luepke, slip op. at 16;

Reyna, 358 F.3d at 352; Adams, 252 F.3d at 288. Denial of the

right to allocution, however, “is not a fundamental defect

which inherently results in a complete miscarriage of

justice, nor an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States,

368 U.S. 424, 428 (1962). Thus, the general rule does not

foreclose the possibility that the facts of a particular

case may compel a conclusion that any violation of the

defendant’s right to allocution did not affect seriously the

fairness of the judicial proceedings. See Reyna, 358 F.3d

at 352.

Upon review of the record, we believe that the district

court’s failure to afford Ms. Pitre an opportunity to allocute

does not so seriously affect the fairness, integrity or

public reputation of judicial proceedings that reversal is

required. This was Ms. Pitre’s third appearance before

the district court for violations of the terms of her supervised release. On the first occasion, the court modified the

terms of her release to require inpatient drug treatment

at the Salvation Army Community Correctional Center.

Within six months of completing that program, Ms. Pitre

once again appeared before the district court on subsequent

violations. Instead of revoking her release at that time, the

court granted Ms. Pitre’s request to continue the revocation

hearing to see how “she do[es] in the next 30 to 60 days.”

R.114-1 at 10. The court, however, warned that:

I will continue the matter for 30 days and if she is

dirty at all then she is getting the 18 months, and if not,
10 No. 06-3935

then—if she can stay off for 30 days then we will

maybe give her another 60 days or so, but one dirty

drop or if she fails to show, I mean it, it is going to be

automatic.

. . . .

. . . . I am not going to hear any arguments one way

or the other, you are going for the 18 months if you

miss a drop or if you have a dirty drop, okay?

Id. at 11. Ms. Pitre replied, “Okay.” Id. When the hearing

reconvened on October 3, 2006, the court enforced its

agreement with Ms. Pitre; it sentenced her to 18 months’

imprisonment. Ms. Pitre’s acknowledgment of the district court’s warning during the earlier hearing demonstrates that she knew what would happen if she tested

positive for illegal drug use. Her attorney’s comments

when the hearing reconvened 33 days later likewise

indicate that Ms. Pitre arrived at court intending to fulfill

her end of the “bargain”: “Ms. Pitre had only a single

request for me today, and that is that the Court recommend to the U.S. Bureau of Prisons that she be incarcerated as close to Chicago as possible.” R.114-2 at 4.

Thus, on the facts of this case, we are satisfied that the

district court’s error in failing to address Ms. Pitre and

allow her to speak in mitigation of her term of reimprisonment did not affect seriously the fairness, integrity or

public reputation of her revocation proceedings. See, e.g.,

Reyna, 358 F.3d at 352-53. We therefore decline to exercise our discretion to require a further hearing.

B.

Ms. Pitre next challenges the district court’s decision to

impose an 18-month term of reimprisonment. According
No. 06-3935 11

1 But see United States v. Flagg, 481 F.3d 946, 948-49 (7th Cir.

2007) (noting that it is an open question whether the plainly

unreasonable standard has been supplanted by the reasonableness standard applied to review of sentences under United

States v. Booker, 543 U.S. 220 (2005)).

to Ms. Pitre, the district court never mentioned its reasons

for choosing a term of reimprisonment double the top of

the applicable imprisonment range nor did it adopt the

probation officer’s findings or make findings of its own.

She submits, therefore, that the court abused its discretion

in determining the term of reimprisonment because it

failed to consider the imprisonment range or policy

statements set forth in § 7B1.4 of the guidelines. We only

shall reverse the judgment of the district court following

a revocation proceeding if the sentence imposed is

plainly unreasonable. United States v. Harvey, 232 F.3d 585,

587 (7th Cir. 2000).1

 Further, because Ms. Pitre did not raise

these arguments before the district court, we review only

for plain error. See id. at 587.

The imprisonment range and policy statements set

forth in U.S.S.G. § 7B1.4, although not binding, are entitled

to great weight. United States v. Carter, 408 F.3d 852, 854

(7th Cir. 2005); United States v. Salinas, 365 F.3d 582, 588 (7th

Cir. 2004). Accordingly, the district court must consider the

factors set forth in § 7B1.4 in choosing a term of reimprisonment, but the recommended imprisonment range “informs

rather than cabins” the court’s sentencing discretion.

Salinas, 365 F.3d at 588. On review, our inquiry focuses not

“on the detail with which the district court expressed its

reasons for imposing” a specific period of confinement,

United States v. Marvin, 135 F.3d 1129, 1140 (7th Cir. 1998),

but on whether the district court’s statements on the record
12 No. 06-3935

reflect that it considered the appropriate factors in exercising its discretion, see Salinas, 365 F.3d at 588-89.

The record reveals that the district court considered the

factors set forth in § 7B1.4 before imposing the 18-month

term of reimprisonment. Although the district court did not

discuss § 7B1.4 on the record before rendering judgment,

the court told Ms. Pitre before it continued the revocation

hearing that “if she can stay off [drugs] for 30 days then we

will maybe give her another 60 days or so,” R.114-1 at 11.

The court therefore indicated that it had considered a

period of confinement at or below the recommended range

of three to nine months. See U.S.S.G. § 7B1.4(a); see also

Marvin, 135 F.3d at 1139 (explaining that district court may

impose term of reimprisonment anywhere from one day to

statutory maximum). The court’s remarks, however, also

indicate that it had considered the possibility that Ms. Pitre

would be unable to refrain from drug use and consequently

would warrant a longer period of confinement. See Carter,

408 F.3d at 854 (holding that the district court must consider factors under § 7B1.4 as well as 18 U.S.C. § 3553(a) in

fashioning penalty for violations of supervised release); see

also 18 U.S.C. § 3553(a)(1) (listing defendant’s history and

characteristics as sentencing factors). Although not expressly adopted by the court, the Government had explained at the August 31, 2006 hearing that an extended

period of confinement was necessary to ensure that Ms.

Pitre could complete the Bureau of Prisons’ custodial

drug-treatment program. See id. § 3553(a)(2)(D) (listing

need for medical care as sentencing factor). The court’s

failure formally to adopt the Government’s reasoning is not

plain error or, for that matter, any error at all. See Salinas,

365 F.3d at 589 (explaining that the district court need not

make findings as to each resentencing factor so long as the
No. 06-3935 13

record reveals that the court considered the appropriate

factors); see also United States v. Olivas-Ramirez, 487 F.3d 512,

517 (7th Cir. 2007) (explaining that district court need not

make findings as to each sentencing factor so long as the

record reveals that the court engaged in “meaningful

consideration” of the factors).

Ms. Pitre certainly has not shown that the sentence

imposed was plainly unreasonable. Here, the reason for

the 18-month sentence was to ensure that Ms. Pitre

would be able to complete the Bureau of Prisons’ drug

treatment program. This reasoning corresponds precisely

to the reason for her reimprisonment, her persistent

failure to remain free of cocaine.

Conclusion

The district court erred in imposing a term of reimprisonment without affording Ms. Pitre an opportunity to address the court. That error was plain and prejudice should

be presumed. Nevertheless, because this error did not

affect the fairness, integrity or public reputation of

Ms. Pitre’s revocation proceeding, we decline to exercise

our discretion to require a rehearing. We also conclude

that the district court did not err in determining the

length of Ms. Pitre’s term of reimprisonment. Accordingly,

the district court’s judgment is affirmed.

AFFIRMED
14 No. 06-3935

BAUER, Circuit Judge. I submit a reluctant concurrence.

It is very difficult to quarrel with the well-reasoned and

well-written opinion of the majority. On the other hand,

I think the matter should be returned to the district

court and the defendant should be permitted to allocute

even at this late date.

I totally agree with the position of the opinion that the

right of allocution before sentencing remains just as

strong when the defendant faces sentence after parole or

sentence revocation as at the original sentencing. In my

view, that right is as close to an absolute as any rule of

law can be. I would remand the matter to permit the

defendant to exercise her right of allocution.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-3-07