Opinion
No. 09-14674 Non-Argument Calendar.
April 15, 2010.
Nicole Marie Kaplan, Stephanie Kearns, Anna Blitz, Federal Public Defender Program, Atlanta, GA, for Plaintiff-Appellee.
Mary Christine Roemer, John Andrew Horn, U.S. Attorney's Office, Atlanta, GA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 06-00034-CR-MHS-1.
Before BARKETT, WILSON and FAY, Circuit Judges.
E. Goodman Obot appeals the district court's revocation of his supervised release and imposition of a sentence for four months of imprisonment and twelve months of supervised release, pursuant to 18 U.S.C. § 3583(e). Obot argues that even though he did eventually allocute at sentencing, the district court pronounced and imposed his sentence before affording him that opportunity in violation of the Due Process clause and Federal Rule of Criminal Procedure 32.1(b)(2)(E). Specifically, Obot asserts that the district court erred for failure to personally invite him to speak. Upon review of the record and the parties' briefs, we affirm.
The record shows that Obot was released on February 5, 2010.
We review "questions involving the legality of a criminal sentence de novo." United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (per curiam). We also review " de novo legal questions concerning the Federal Rules of Criminal Procedure." United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006) (per curiam).
"Allocution is the right of the defendant to make a final plea on his own behalf to the sentencing judge before his sentence." United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008) (per curiam) (citation omitted). "In any probation or supervised release revocation hearing, `a defendant must be afforded an opportunity to make a statement and present any information in mitigation.'" Id. (citing Fed.R.Crim.P. 32.1(b)(2)(E)). Therefore, a district court's failure to afford to the defendant the right of allocution warrants reversal. Id. at 847; United States v. Eads, 480 F.2d 131, 133 (5th Cir. 1973) (per curiam) (holding that, in a revocation hearing, "sentences imposed upon those convictions are vacated and the cause remanded to the district court for resentencing after affording the appellant his right to allocute"); see also United States v. Phillips, 936 F.2d 1252, 1256 (11th Cir. 1991).
We hold that, consistent with the requirements of Rule 32.1(b)(2)(E), the district court did not abridge Obot's right to allocute. The transcript from the revocation hearing indicates that the district court specifically asked if Obot "wish[ed] to make a statement." Doc. 48 at 6. While the district court suggested that the recommended sentence was appropriate, the record shows that the district court did not impose the sentence until Obot had completed his allocution at length. Doc. 49 at 8, 9-13. Therefore, the district court did not prematurely announce Obot's sentence. Accordingly, we affirm.