Section 32 - Sentencing and Judgment

1 Analyses of this statute by attorneys

  1. The Right to be Heard: Second Circuit Vacates Sentence of Criminal Defendant Denied Allocution

    Patterson Belknap Webb & Tyler LLPDecember 15, 2023

    ges. Lajeunesse moved to suppress the evidence found on his phone, but to no avail.Accordingly, Lajeunesse pled guilty to various child pornography-related offenses. His plea agreement included a partial appellate waiver. Specifically, Lajeunesse reserved his right to appeal the district court’s denial of the suppression motion but waived his right to appeal any sentence of 210 or fewer months of imprisonment.At his sentencing hearing, the district court judge expressly asked Lajeunesse if he understood the consequences of pleading guilty and, moreover, whether he understood that he would be unable to appeal his sentence if the court sentenced him to fewer than 210 months. Lajeunesse responded that he understood. After hearing about mitigating factors from Lajeunesse’s attorney, the court ordered a sentence of 198 months of imprisonment. The court did not ask Lajeunesse whether there was anything he would like to say or otherwise present an opportunity for allocution as is required by Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) (providing that “the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence”). Lajeunesse’s attorney did not object to this omission.AppealOn appeal, Lajeunesse argued, inter alia, that the court erred in failing to give him an opportunity to present an allocution during the sentencing.[1]The panel agreed with Lajeunesse and remanded for resentencing. The government’s primary argument was that Lajeunesse could not appeal his overall sentence—notwithstanding the lack of allocution—because the appellate waiver in his plea agreement barred him from appealing a sentence of fewer than 210 months of imprisonment.The panel disagreed and held that a broadly drafted, general appellate waiver did not cover a sentencing court’s omission of an allocution. Although courts construe plea agreements using ordinary contract principles, that interpretation is limited by a special concern for procedural safeguards. For ex