United States Court of Appeals

For the Eighth Circuit

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No. 14-3567

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Howard Matthew Fleetwood

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: May 11, 2015

 Filed: July 27, 2015

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Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

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RILEY, Chief Judge.

After Howard Fleetwood admitted, through counsel, to violating certain 

conditions of the supervised release he was serving for failing to register as a sex

offender, see 18 U.S.C. § 2250, the district court revoked Fleetwood’s supervised 1

The Honorable John A. Jarvey became Chief Judge of the United States 1

District Court for the Southern District of Iowa on March 1, 2015. 
release and sentenced him to twelve months imprisonment to be served—as

Fleetwood requested—concurrently with his state sentence for assaulting two police

officers. At Fleetwood’s revocation hearing, the district court addressed Fleetwood

directly only to advise him of his right to appeal. Fleetwood never spoke. 

Fleetwood now appeals the judgment and sentence, arguing “the district court

violated [Federal Rule of Criminal Procedure] 32.1(b)(2)(E) by failing to personally

address [Fleetwood] and accord him the right to make a statement prior to imposition

of the revocation sentence.” Because Fleetwood failed to raise this issue at the

revocation hearing, the parties agree we review for plain error. See United States v.

Robertson, 537 F.3d 859, 863 (8th Cir. 2008); United States v. Pirani, 406 F.3d 543,

549 (8th Cir. 2005) (en banc) (“Errors not properly preserved are reviewed only for

plain error under Rule 52(b) of the Federal Rules of Criminal Procedure.”). To

prevail, Fleetwood “must show an error that is clear or obvious under current law, and

he must demonstrate that the error affected his substantial rights and seriously

affected the fairness, integrity, or reputation of the judicial proceedings.” United

States v. Hinkeldey, 626 F.3d 1010, 1012 (8th Cir. 2010). “In the sentencing context,

an error is prejudicial [to a defendant’s substantial rights] only if the defendant proves

a reasonable probability that he would have received a lighter sentence but for the

error.” United States v. Molnar, 590 F.3d 912, 915 (8th Cir. 2010).

Rule 32.1(b)(2)(E) provides that a person subject to revocation for allegedly

violating a condition of supervised release “is entitled to . . . an opportunity to make

a statement and present any information in mitigation.” Although he concedes “[t]he

language of the rule . . . is admittedly a bit loose on the point,” Fleetwood urges us

to “join the other circuits in interpreting Rule 32.1(b)(2)(E) as requiring the district

court to personally address the defendant regarding his or her right to make a

statement prior to imposition of a revocation sentence.” See, e.g., United States v.

Daniels, 760 F.3d 920, 924 (9th Cir. 2014) (“Rule 32.1(b)(2)(E) requires a court to

address a supervised releasee personally to ask if he wants to speak before the court

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imposes a post-revocation sentence”); United States v. Gonzalez, 529 F.3d 94, 97 (2d

Cir. 2008); United States v. Carruth, 528 F.3d 845, 846-47 (11th Cir. 2008) (per

curiam); United States v. Pitre, 504 F.3d 657, 662 (7th Cir. 2007). But cf. United

States v. Rausch, 638 F.3d 1296, 1300-01 (10th Cir. 2011) (recognizing “Rule 32.1

. . . does not mention anything about the court addressing the defendant personally,”

but declining to decide the issue because the defendant failed to establish plain error).

We have previously considered a criminal defendant’s right to “an opportunity

to” allocute under Rule 32.1(b)(2)(E)—as distinct from a sentencing court’s

obligation to “address the defendant personally in order to permit the defendant to

speak or present any information to mitigate the sentence” under Federal Rule of

Criminal Procedure 32(i)(4)(A)(ii). See Robertson, 537 F.3d at 862. In Robertson,

we observed that “[d]espite this significant textual difference,” the courts in Carruth

and Pitre “held that the two rules create an identical right to allocution.” Id. But we

“consider[ed] th[o]se decisions suspect because they were based in large part on

flawed reasoning” derived from an incorrect interpretation of an outdated version of

Rule 32 applied in Green v. United States, 365 U.S. 301, 303 n.1 (1961) (plurality

opinion). Robertson, 537 F.3d at 862 & n.2. 

In Robertson, despite registering our doubt about Carruth and Pitre and

questioning whether the plain language of Rule 32.1(b)(2)(E) obligates a sentencing

court to advise the defendant of his allocution right and invite him to make a

statement, we declined to definitively decide the parameters of a defendant’s rights

under Rule 32.1(b)(2)(E). See id. at 862. Instead, we “assume[d] without deciding 2

Regardless of whether Rule 32.1(b)(2)(E) requires a sentencing court to take 2

such affirmative steps to advise a defendant personally of his allocution rights,

prudence counsels “the better practice in sentencing is to assure the defendant” is

aware of his opportunity to allocute and has received “an express opportunity to

speak for himself, in addition to anything that his lawyer may have to say.” Green,

365 U.S. at 306 (Stewart, J., concurring); see also United States v. Griggs, 431 F.3d

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that the Rule at least requires the district court, at some point during a revocation

hearing, to address the defendant personally and make it clear he has a right ‘to make

a statement and present any information in mitigation.’” Id. (quoting Rule

32.1(b)(2)(E)). We then concluded that even if the Robertson sentencing court

“commit[ted] a Rule 32.1(b)(2)(E) error,” it “was not plain.” Id. at 863; accord

Rausch, 638 F.3d at 1301 (declining to decide whether the sentencing court erred in

applying Rule 32.1(b)(2)(E) “because it is clear that even if the district court erred,

the error d[id] not seriously affect the fairness, integrity, or public reputation of

judicial proceedings”).

We reach the same result here. Even if we assume (1) the district court erred

in failing to address Fleetwood personally and expressly offer him an opportunity to

make a statement before imposing his revocation sentence, and (2) such a requirement

was “clear or obvious under current law,” Fleetwood has not shown any such error

“affected his substantial rights and seriously affected the fairness, integrity, or

reputation of the judicial proceedings.” Hinkeldey, 626 F.3d at 1012.

 

When given the opportunity to address the district court at the revocation

hearing, Fleetwood’s counsel did not request a lower sentence, instead only asking

that Fleetwood’s revocation sentence run concurrently with his state sentence. 

Fleetwood’s counsel acknowledged further supervision was not only “necessary,” but

that a residential re-entry facility would be “good” to help Fleetwood get “on his feet

and get going” upon release. Honoring Fleetwood’s requests through counsel, the

district court sentenced Fleetwood to a concurrent twelve-month sentence and

imposed the statutoryminimumfive years of supervised release required by 18 U.S.C.

§ 3583(k)—beginning with residence at a residential re-entry center. 

1110, 1114-15 (8thCir. 2005) (emphasizing—in the absence ofreversible error—that

a sentencing court could best “protect a defendant’s rights and . . . avoid unnecessary

appeals” by unambiguously addressing himpersonally and allowing himto speak and

present mitigation evidence before sentencing as required by Rule 32).

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Having essentially received the sentence he requested, Fleetwood has failed to

present any evidence on appeal “prov[ing] a reasonable probability that he would

have received a lighter sentence,” Molnar, 590 F.3d at 915, if the district court had

asked him to make a personal statement before sentencing. Indeed, beyond a vague

reference in his appellate brief to proper punishment, placement, and

treatment—subjectsthoroughly covered by his counsel at the revocation hearing and

reflected in his sentence—Fleetwood fails “to set forth what he would have said to

the district court prior to sentencing that might have mitigated his sentence.” Rausch,

638 F.3d at 1302; accord United States v. Magwood, 445 F.3d 826, 830 (5th Cir.

2006) (denying relief on plain error review because the defendant failed to “furnish

any information about what he would have allocuted to that might have mitigated his

sentence” and did “not challenge his sentence,” but “simply challenge[d] the facial

violation of his right to allocute”). 

Because Fleetwood has not established plain error, we affirm the sentence and

judgment. 

MURPHY, Circuit Judge, concurring.

While I concur in the court’s opinion, I write separately because I believe it is

better practice for a sentencing judge to make it clear to the defendant that he or she

has a personal opportunity to make a statement before the imposition of a sentence. 

Five circuits have adopted such a rule for supervised release sentencing proceedings,

reasoning that Federal Rule of Criminal Procedure 32.1(b)(2)(E) “requires a court to

address a supervised releasee personally to ask if he wants to speak before the court

imposes a post-revocation sentence.” United States v. Daniels, 760 F.3d 920, 924

(9th Cir. 2014); see United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008); United

States v. Carruth, 528 F.3d 845, 846-47 (11th Cir. 2008) (per curiam); United States

v. Pitre, 504 F.3d 657, 662 (7th Cir. 2007). 

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When a judge addresses a defendant personally and asks if he or she has

anything to say before the court acts, that individual is given a clear opportunity to

speak. Not only is it a better practice to provide such an opportunity, but experience

shows that such a statement can occasionally make a difference in the actual

judgment pronounced as opposed to a tentative sentence prepared in advance of the

hearing. Such an opportunity to speak “enhanc[es a defendant’s] dignity” and

“provides offenders the opportunity to contest any disputed factual bases for

sentencing and persuade the judge to choose a favored sentence alternative.” Daniels,

760 F.3d at 924 (quotation omitted). A statement by the defendant can provide a

sentencing judge “more information on which to base its sentence,” id., as well as

clarify the issues which the district court may want to address. Moreover, such a

practice can also aid in review of a sentence on appeal.

Since Fleetwood has not shown plain error in this case, however, I agree that

the judgment of the district court should be affirmed. 

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