Tuesday, July 28, 2015

Failure to Allow Allocution at Sentencing on Supervised Release Revocation is not Plain Error

U.S. v. Craig, 2015 WL 4509435 (10th Cir. 7/27/15)(Kan.) - At sentencing on a supervised release revocation, it was not plain error to deprive the defendant of his right to allocute. Although defense counsel was asked by the court if counsel had any objections to the proposed sentence or wished to make any statements, the defendant was not personally asked if he would like to make a statement. There was no objection, so the plain error standard applies. It is no excuse that counsel would have been rude to interrupt. "It is a lawyer's job to object--by way of interruption, if the circumstances warrant--when the court is in the midst of committing an error." The court also doesn't buy Mr. Craig's argument that it would have been futile to object. While the complete denial of allocution at an original sentencing requires reversal, violations of the right of allocution under Rule 32.1 do not. The error was not plain under Tenth Circuit and Supreme Court law. The fourth requirement of plain error review is also unmet because any potential error did not seriously affect the fairness, integrity, or public reputation of the proceeding. Defense counsel acknowledged that Mr. Craig understood and did not seek to challenge the district court's proposed sentence. Besides, there was no suggestion that Mr. Craig had some unspoken words ready to go that might have mitigated his sentence.