Eleventh Circuit Court of Appeals - Published Opinions

Friday, October 06, 2017

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.