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    United States v. Craig, 10th Cir. (2015)

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    This document summarizes a court case involving a defendant, David Louis Craig, whose supervised release was revoked for violating conditions. At a revocation hearing, Craig stipulated to various violations. The district court announced a tentative sentence and asked for objections, but did not personally ask Craig if he wanted to make a statement. Craig's attorney requested a continuance for further drug treatment, which was denied. On appeal, Craig argued the district court denied his right to allocute under Rule 32.1. The appeals court reviewed for plain error since no objection was made. It affirmed, finding Rule 32.1 does not clearly require courts to personally invite defendants to speak at revocation hearings.

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    United States v. Craig, 10th Cir. (2015)

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    14 views9 pages
    This document summarizes a court case involving a defendant, David Louis Craig, whose supervised release was revoked for violating conditions. At a revocation hearing, Craig stipulated to various violations. The district court announced a tentative sentence and asked for objections, but did not personally ask Craig if he wanted to make a statement. Craig's attorney requested a continuance for further drug treatment, which was denied. On appeal, Craig argued the district court denied his right to allocute under Rule 32.1. The appeals court reviewed for plain error since no objection was made. It affirmed, finding Rule 32.1 does not clearly require courts to personally invite defendants to speak at revocation hearings.

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    Filed: 2015-07-27 Precedential Status: Precedential Docket: 14-3187

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    This document summarizes a court case involving a defendant, David Louis Craig, whose supervised release was revoked for violating conditions. At a revocation hearing, Craig stipulated to various violations. The district court announced a tentative sentence and asked for objections, but did not personally ask Craig if he wanted to make a statement. Craig's attorney requested a continuance for further drug treatment, which was denied. On appeal, Craig argued the district court denied his right to allocute under Rule 32.1. The appeals court reviewed for plain error since no objection was made. It affirmed, finding Rule 32.1 does not clearly require courts to personally invite defendants to speak at revocation hearings.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    14 views9 pages

    United States v. Craig, 10th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case involving a defendant, David Louis Craig, whose supervised release was revoked for violating conditions. At a revocation hearing, Craig stipulated to various violations. The district court announced a tentative sentence and asked for objections, but did not personally ask Craig if he wanted to make a statement. Craig's attorney requested a continuance for further drug treatment, which was denied. On appeal, Craig argued the district court denied his right to allocute under Rule 32.1. The appeals court reviewed for plain error since no objection was made. It affirmed, finding Rule 32.1 does not clearly require courts to personally invite defendants to speak at revocation hearings.

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    FILED

    United States Court of Appeals


    Tenth Circuit

    July 27, 2015


    PUBLISH

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    No. 14-3187
    v.
    DAVID LOUIS CRAIG,
    Defendant - Appellant.

    APPEAL FROM THE UNITED STATES DISTRICT COURT


    FOR THE DISTRICT OF KANSAS
    (D.C. No. 5:10-CR-40054-JAR-1)

    Melody Brannon Evans, Federal Public Defender, Topeka, Kansas, for Defendant
    - Appellant.
    Carrie N. Capwell, Assistant United States Attorney (and Barry R. Grissom,
    United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff Appellee.

    Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.

    KELLY, Circuit Judge.

    Upon conviction of possessing a stolen firearm, Defendant-Appellant David


    Craig was sentenced to 30 months imprisonment and three years supervised

    release. After his release from prison, he violated various conditions of his
    supervised release. He stipulated to several violations, and the district court
    revoked his supervised release and sentenced him to 14 months imprisonment
    and one year of supervised release. On appeal, he contends that the district court
    denied him the right to allocute, as afforded him by Federal Rule of Criminal
    Procedure 32.1. Exercising jurisdiction pursuant to 28 U.S.C. 1291 and 18
    U.S.C. 3742(a), we affirm.

    Background
    Mr. Craig appeared at a revocation hearing held on August 15, 2014, where
    he was represented by counsel. After Mr. Craig stipulated to various violations of
    the conditions of his supervised release, the district court informed counsel that it
    would announce its proposed findings and sentence and then hear from you all
    about it. 2 R. 9.
    The court then stated its proposed findings, noted the applicable statutory
    maximum and Guidelines range, and announced its tentative sentence. 1 As
    justification for the sentence, the court highlighted Mr. Craigs continuing
    noncompliant behavior and his failure to cooperate with the intermediate steps
    taken by the United States Probation Office to address his violations. Id. at 13.

    The tentative sentence, which became the actual sentence, was below the
    statutory maximum and at the high end of the Guidelines range.
    -2-

    The court then asked if there were any objections to the tentative sentence or
    other statements that counsel wish to make. Id. at 14.
    Mr. Craigs counsel stated: I think everybody in this case is quite
    exasperated with Mr. Craig, and hes exasperated with himself, and he
    understands the sentence that the Court has laid out. Id. at 15. Counsel then
    requested a two-week continuance to allow Mr. Craig to pursue further treatment
    for his drug problem. Counsel offered several grounds for the requestnotably,
    Mr. Craigs recent participation in Narcotics Anonymous and consecutive days of
    clean drug test resultsand concluded, [Mr. Craig] is not here to argue about the
    severity of the sentence that the Court proposes. Hes simply asking lets put this
    off and give him one more chance to maybe be successful. Id. at 1718. The
    government stated it would not object to a two-week continuance.
    After a brief discussion about the availability and source of funding for
    further drug treatment, the court recessed. When the proceeding resumed, the
    court stated:
    Were back on the record and I am ready to impose the sentence for
    the stipulated and noncontested violations of the terms of supervised
    release. . . . It is the judgment of the Court that the defendant is
    sentenced to the custody of the Bureau of Prisons for 14 months.
    Upon release from imprisonment, the defendant shall be placed on
    supervised release for a term of one year.
    Id. at 2526. The court then told Mr. Craig that only he could turn his life around
    and asked counsel if there were any other issues to be addressed. Mr. Craigs

    -3-

    counsel requested that the court recommend to the Bureau of Prisons that Mr.
    Craig be placed as close to home as possible. The court agreed to make the
    recommendation and the proceedings came to a close. At no point did the court
    personally ask Mr. Craig if he would like to make a statement.

    Discussion
    In this circuit, a defendant who fails to object to the district courts
    procedures regarding the right of allocution must demonstrate plain error to
    warrant reversal on appeal. United States v. Rausch, 638 F.3d 1296, 1299 n.1
    (10th Cir. 2011). Mr. Craig acknowledges Rausch but argues his claim should be
    subject to de novo review for two reasons.
    First, he contends that cases after Rausch have applied de novo review to
    similar claims, thereby calling into question whether Rausch definitively settled
    the standard of review. Aplt. Br. 12. Making various legal and policy
    arguments, Mr. Craig argues de novo review is more appropriate in the context of
    a denial of allocution and asks us to revisit Rausch. Second, he argues that, due
    to the way the revocation hearing played out, any objection to the district courts
    procedures would have been futile. Futility renders the failure to object
    excusable, he concludes, and therefore de novo review should apply. We are not
    persuaded by either argument.
    In support of his first argument, Mr. Craig relies on United States v.
    -4-

    Castillo, 501 F. Appx 848, 849 (10th Cir. 2012) (unpublished), where we stated
    that [w]e review de novo whether the district court complied with its Rule 32
    obligations. Although Castillo was decided after Rausch, it does not call into
    question the standard of review adopted in Rausch. Castillo dealt with an original
    sentencing governed by Rule 32not a revocation hearing governed by Rule
    32.1. And Castillo merely applied this circuits rule that a complete denial of
    allocution at an original sentencing requires reversal. Castillo, 501 F. Appx at
    849 (citing United States v. Landeros-Lopez, 615 F.3d 1260, 1264 & n.4 (10th
    Cir. 2010) (acknowledging that, despite the automatic reversal rule, this circuit
    has yet to formally adopt a standard of review for alleged violations of Rule 32s
    right of allocution)). No similar rule exists in the Rule 32.1 context, and Rausch
    explicitly adopted the plain error standard for cases where there was no
    objection. 2 Accordingly, our most recent cases dealing with Rule 32.1 have
    faithfully adhered to Rausch. See id.
    We similarly find no merit in Mr. Craigs argument that his claim should be
    subject to de novo review because any objection to the district courts procedures
    would have been futile. In his view, the sequence of events at the hearing did

    Even assuming Castillo was in actual conflict with Rausch (it is not, for
    the aforementioned reasons), Castillo is an unpublished panel decision, carrying
    no precedential value. 10th Cir. R. 32.1. Rausch, on the other hand, is the law of
    this circuit; even if we found Mr. Craigs legal and policy arguments persuasive, a
    panel of this court generally cannot overrule a prior panels decision. United
    States v. Nichols, 775 F.3d 1225, 1230 (10th Cir. 2014).
    -5-

    not present a meaningful opportunity to object. Aplt. Br. 15. We disagree.


    Having reviewed the sentencing transcript, we find nothing unique about
    the district courts sentencing procedure. After providing an explanation for its
    tentative sentence, the district court expressly invited counsel to make objections
    or other relevant statements. At that time, counsel easily could have requested an
    opportunity for Mr. Craig to allocute should the request for a continuance be
    denied. Further, we reject the assertion that there was no opportunity to object
    when the proceeding resumed after the courts recess. Before announcing the
    sentence, the court stated, Were back on the record and I am ready to impose
    the sentence for the stipulated and noncontested violations of the terms of
    supervised release. 2 R. 2526. Counsels suggestion at oral argument that it
    would have been impolite or otherwise unprofessional to object at this time is
    simply not a valid excuse. It is a lawyers job to objectby way of interruption,
    if the circumstances warrantwhen the court is in the midst of committing an
    error. Thus, there is no record support for Mr. Craigs argument that an objection
    would have been futile.
    Because our review is limited to plain error, Mr. Craig must demonstrate
    (1) an error, (2) that is plain, (3) which affects his substantial rights, and (4)
    which seriously affects the fairness, integrity, or public reputation of judicial
    proceedings. Rausch, 638 F.3d at 12991300.
    Rule 32.1, which governs revocation hearings, provides that a person is
    -6-

    entitled to . . . an opportunity to make a statement and present any information in


    mitigation. Fed. R. Crim. P. 32.1(b)(2)(E). The Advisory Committees notes
    explain that the rule was amended to its current form to address a gap in the
    rulethe lack of an express provision providing for allocution rights for a
    person upon revocation of supervised release. Fed. R. Crim. P. 32.1 advisory
    committees notes. Thus, under current Rule 32.1, the court is required to give
    the defendant the opportunity to make a statement and present any mitigating
    information. Id. The issue here is whether Rule 32.1 requires a district court to
    affirmatively extend to the defendant a personal invitation to make a statement.
    If the rule does so require, the record before us would conclusively establish that
    the district court erred.
    This court has stated that, in light of significant textual differences between
    Rules 32.1 and 32, it is unclear whether Rule 32.1 imposes this requirement on
    district courts. Rausch, 638 F.3d at 130001; see also Mencia-Hernandez, 594 F.
    Appx at 459; United States v. Nanez, 419 F. Appx 880, 883 (10th Cir. 2011)
    (unpublished). Rule 32, which governs original sentencings, provides: Before
    imposing sentence, the court must . . . address the defendant personally in order
    to permit the defendant to speak or present any information to mitigate the
    sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added). In contrast, Rule
    32.1 does not expressly direct a district court to address the defendant
    personally before imposing sentence; it simply states that a defendant is entitled
    -7-

    to . . . an opportunity to make a statement. Further, Rule 32 distinguishes


    between a defendants right to speak on his own behalf and his right to have
    counsel speak on his behalf. Compare Fed. R. Crim. P. 32(i)(4)(A)(ii) with Fed.
    R. Crim. P. 32(i)(4)(A)(i); see also United States v. Landeros-Lopez, 615 F.3d
    1260, 1266 n.5 (10th Cir. 2010). Rule 32.1 makes no such distinction, suggesting
    that the rule does not require a district court to personally invite the defendant to
    speak on his own behalf.
    Despite these differences, a number of federal courts of appeals have held
    that Rule 32.1 does contain such a requirement. See United States v. Paladino,
    769 F.3d 197, 20001 (3d Cir. 2014); United States v. Carruth, 528 F.3d 845, 847
    (11th Cir. 2008); United States v. Pitre, 504 F.3d 657, 662 (7th Cir. 2007); but see
    United States v. Robertson, 537 F.3d 859, 862 (8th Cir. 2008) (criticizing some of
    these decisions as suspect because they were based in large part on flawed
    reasoning). That other courts of appeals have reached such a conclusion does
    not help Mr. Craig, however, because an error is only plain if it is clear or
    obvious under current, well-settled law. United States v. Story, 635 F.3d 1241,
    1248 (10th Cir. 2011). Whether the law is well-settled is determined by
    reference to Tenth Circuit and Supreme Court law. Id. And because neither the
    Supreme Court nor this circuit has interpreted Rule 32.1 to require a personal
    invitation to allocute, any potential error in not addressing Mr. Craig personally is
    not plain. See Mencia-Hernandez, 594 F. Appx at 459 ([A]ny error the court
    -8-

    may have committed by not sua sponte offering him the opportunity to do so was
    certainly not plain under either Rule 32.1, the advisory committees notes, or our
    precedent.); Rausch, 638 F.3d at 1301.
    We add that Mr. Craigs claim would also fail under the fourth requirement
    of plain error review because any potential error did not seriously affect the
    fairness, integrity, or public reputation of the proceeding. Here, defense counsel
    explicitly acknowledged that Mr. Craig both understood the district courts
    proposed sentence and had no intention to challenge its severity. 2 R. 17.
    Additionally, Mr. Craig has not indicated what he might have said to the court to
    mitigate his sentence. We have been hesitant to find the integrity of the
    proceedings to be impugned where the defendant fail[s] 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; see Mencia-Hernandez, 594 F. Appx at
    460. Under the facts of this case, we are not convinced that the fairness,
    integrity, or public reputation of the proceeding could be called into question.
    AFFIRMED.

    -9-

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