Dont Speak!

United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)

Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that neither the government nor the Probation Department had much credibility on that point, since they argued that a guideline sentence is the correct one in every case, which counsel argued was untrue. In response, the court told defense counsel, in essence, to shut up. It complained that he did not “respect the people who are working here” and ordered him to be “quiet” from then on. The court then reinstated the prior sentence, still without addressing any of counsel’s arguments.

The circuit affirmed. It agreed that under Rule 32 the sentencing court is required to give defense counsel an opportunity to speak. But here, the court followed the correct procedure. It vacated the prior sentence, and permitted defense counsel to make an argument. The court also rejected the claim that the district court did not give counsel a “meaningful” opportunity to be heard.

Comment

This case is maddening. Defense counsel made several specific arguments about why a below-guideline sentence should be imposed. And, even though the district court sentenced the defendant twice, it never addressed any of them, and the circuit was not bothered by this at all. It simply cannot be right that, as long as the sentencing court mentions 3553(a), it does not have to rule on the arguments raised by the defense.

Allocution Lessons

United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ)

In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute. It also criticizes the imposition of the statutory maximum sentence.

1. Facts

Gonzalez admitted that he violated his supervised release by possessing marijuana. At a sentencing hearing, Judge Conti, visiting from the Northern District of California, heard from the probation officer, who reported that Gonzalez was released from prison in November of 2006. He was sent from there to immigration custody, and released by immigration about two weeks later. Although the officer sent him three notices, Gonzalez never reported to probation. The officer later learned that Gonzalez had been convicted of two petty offenses after his release.

With respect to the failure to appear, defense counsel explained that, after his release, Gonzalez reported to an immigration officer, but did not report to probation because he did not understand that he was supposed to report to two separate agencies. Judge Conti, who did not comment on this explanation, sentenced Gonzalez to the statutory maximum - twenty-four months - without giving Gonzalez an opportunity to speak, and without advising him of his right to appeal.

Later that day, the judge re-called the case and advised Gonzalez of his right to appeal. When it was pointed out that the judge also forgot to allocute Gonzalez before sentencing, Judge Conti told him: “[Y]ou have the right to say anything to the Court you want to and it may very well be that there are occasions when the Court changes its mind.” Gonzalez told the court that he had a substance abuse problem, and the judge recommended treatment “during [his] incarceration.”

2. The Lack of an Allocution

The court of appeals held that Judge Conti’s method of dealing with the lack of a presentence allocution rendered the sentence procedurally unreasonable. “The appropriate response to an omission of presentence allocution implicates due regard for the appearance of fairness.” Thus, the “preferable course” for remedying such a denial is for the district judge “to vacate the sentence, accord the right of allocution, and sentence anew.” Since this procedure did not occur here, the correct remedy was to vacate the sentence and order a new sentencing in conformity with Rules 32 and 32.1.

The court established this procedure in the exercise of it supervisory powers to oversee the administration of justice within federal courts. In doing so, it also noted that the noncompliance with the allocution right here was not harmless error.

3. Substantive Reasonableness

Judge Conti’s reasons for maxing Gonzalez were both brief and bizarre. He said that (1) neither Gonzalez nor society would benefit from his being supervised by the probation department, (2) supervision had done Gonzalez no good - even though Gonzalez had never been actively supervised - and (3) Gonzalez knew what he was doing - even though counsel had just explained to the judge that Gonzalez was confused as to his reporting requirements.

The appellate court strongly suggested that, on the existing record, the twenty-four month sentence, which was more than twice the ten-month guideline maximum, was unreasonable. But since it was remanding anyway, it just noted that the “brevity of the reasons” for the sentence “hampered” appellate review of its length.