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Defendant’s case reversed to give him a chance to address the judge at sentencing

 

Doyle pled guilty to distribution of more than fifty grams of cocaine bade and was facing a 10 year minimum sentence and up to live imprisonment. After calculating his advisory guidelines rant of 262 to 327 at sentencing the district court asked his counsel if she had anything to say before the sentence was imposed and she used the opportunity to argue successfully for a sentence at the low end of the advisory guidelines range. The court did not ask Doyle himself if he wished to make a statement or to allocate as required by the Federal Rules of Criminal Procedure. Doyle’s counsel did not object. Doyle later filed a pro se motion to vacate pursuant to 28 U.S.C. section 2244 claiming that he had asked his former counsel to file a direct appeal but that she had failed to do so. The district court granted his 2255 motion with respect to his failure to appeal claim and the court ordered the remedy spelled out in U. S. v. Phillips, which requires vacating the original sentence and resentencing him to the same sentence as before, so it can be reviewed on appeal. It does not reopen the sentencing. The same sentence as before was imposed.

The sole issue for the appellate court was whether Doyle’s sentence must be vacated because his right to give allocution, as embodied in the Federal Rule of Criminal Procedure 32 was violated. In the pre-Booker era, the court of appeals presumed prejudice from the district court’s failure to ask a defendant if he had anything to say before sentence was pronounced, except where the defendant was sentenced at the low end of the applicable mandatory guideline range. The question here is whether that low-end exception to a presumption of prejudice still applies in the post-Booker advisory guideline era.

Because Doyle did not object at the sentence hearing to the district court’s denial of his right of allocution, the court reviewed the issue only for plain error. While the court found the error was plain, the court of appeal also found that the error affected Doyle’s substantial rights by causing prejudice. Prior to the Booker decision, the court of appeals would find prejudice for a defendant denied the right to allocate if he did not receive the lowest sentence available in the guidelines range, since there was room at the bottom of the guidelines range. There exception to a finding of error was if the defendant was sentenced to the very bottom of the guidelines because during the mandatory guidelines era there was virtually no possibility that the defendant could talk the judge into a lower sentence than one at the bottom of the guidelines range. Since the Booker decision, courts will be more likely to sentence below the guidelines range.

The court of appeals found that prejudice was presumed for Doyle by the denial of allocution but that at the resentencing he will only be given an opportunity to allocate and have the court sentence him after the judge hears from him. He is not entitled to an entirely new sentencing proceeding nor can he reassert or reargue ant of his objections to the PSI.

In Miami courts, it is not unusual for a skilled criminal defense attorney to obtain a sentence below the guidelines range.