Submitted May 11, 2015.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For Ruben Cruz, Petitioner: Jon Eric Jessen, Attorney, Law Offices Jon E. Jessen LLC, Stamford, CT.
For Eric H. Holder, Jr., United States Attorney General, Respondent: Oil, Stefanie A. Svoren-Jay, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges. MURPHY, Circuit Judge, concurring.
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 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 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, 81 S.Ct. 653, 5 L.Ed.2d 670 (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 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 ...