Appeal from the United States District Court for the District of Nevada. D.C. No. CR-89-00294-LDG. Lloyd D. George, District Judge, Presiding.
Before: Ruggero J. Aldisert,*fn* Charles Wiggins, and Melvin Brunetti, Circuit Judges. Opinion by Judge Brunetti.
The district court sentenced Larry Wayne Carper, Jr. to eighteen months imprisonment after it revoked his supervised release. Carper challenges this sentence on the ground that the district court did not afford him the right of allocution required by Federal Rule of Criminal Procedure 32(a)(1)(C). We have jurisdiction under 18 U.S.C. § 3742(a).
Carper was sentenced on May 3, 1990 to a term of forty-one months imprisonment, followed by three years of supervised release. On March 24, 1993, the United States Probation Office petitioned the district court to revoke Carper's supervised release, alleging five violations. Carper admitted that he failed to (1) submit monthly reports, (2) notify the probation officer of changes in employment, (3) attend a drug treatment program, and (4) make restitution payments. He contested the allegation that he used and possessed an illegal substance.
The sole issue at the revocation hearing was whether the government properly established drug use or possession. The parties and court agreed that if the government's evidence did not meet the requirements of United States v. Martin, 984 F.2d 308 (9th Cir. 1993), the applicable range of punishment would be between five and eleven months imprisonment. See U.S.S.G. § 7B1.4(a) (1992). If the government carried its burden, the court would be required under 18 U.S.C. § 3583(g) to impose a minimum sentence of twelve months. At the end of the revocation hearing, the district court stated:
I'll enter a written finding, but it's the judgment of the Court that supervision should be revoked and that the defendant should be placed in custody for a substantial period of time under one concept or the other.
Both attorneys then indicated they had nothing further to add and the court adjourned without addressing Carper personally and determining if he wished to make a statement before sentence was imposed. Neither Carper nor his counsel affirmatively requested that Carper be permitted to speak.
On April 21, 1993, the district court entered a written order finding that the government's evidence did not meet the Martin requirements. It further determined that it need not adhere to the five to eleven month sentencing range suggested in section 7B1.4(a) because that policy statement is merely advisory.*fn1 Because the court found "that the range suggested in section 7B1.4 would not adequately afford deterrence to further criminal conduct and would not address Defendant's need for treatment of his drug problems," it sentenced Carper to eighteen months imprisonment under 18 U.S.C. § 3583(e)(3).
Carper challenges only the district court's failure to allow him to speak on his own behalf before it imposed a sentence.
"The right of allocution allows a defendant to personally address the court before sentencing in an attempt to mitigate punishment." United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991). Carper contends that Rule 32(a)(1)(C) of the Federal Rules of Criminal Procedure confers the right of allocution upon defendants who are sentenced after revocation of probation or supervised release.*fn2 We review de novo the district court's interpretation of the Federal Rules. United States v. Freitas, 800 F.2d 1451, 1454 (9th Cir. 1986).
This court has not previously addressed the issue of whether Rule 32 gives a defendant the right of allocution after revocation of supervised release. However, we have emphasized the importance of the right in the context of sentencing following conviction:
Recognizing the personal nature of the Sixth Amendment's guarantee of the right to make a defense, the unique ability of a defendant to plead on his own behalf, and the Supreme Court's acknowledgment of the continuing vitality of the practice of permitting a defendant to allocute before sentencing, we hold that allocution is a right guaranteed by the due process clause of the Constitution.
Boardman v. Estelle, 957 F.2d 1523, 1529-30 (9th Cir.), cert. denied, 121 L. Ed. 2d 221, 113 S. Ct. 297 (1992). In Boardman, we limited our holding to circumstances in which a defendant requests permission to speak to the trial court before sentencing. Id. at 1530. Carper did not make such a request. Nor are there other aggravating circumstances that might raise his claim to the level of a constitutional deprivation. See Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962) (trial court's failure to ask defendant whether he had anything to say was not constitutional error when defendant did not request an opportunity to speak, did not suggest the district Judge was uninformed as to relevant circumstances, and did not claim he would have had ...