No.06-2902 UNITED STATES OF AMERICA v. Anthony Jackson

Honorable Joseph E. Irenas, Senior United States District Judge for the *
District of New Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No.06-2902
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UNITED STATES OF AMERICA
v.
ANTHONY JACKSON,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 03-cr-00642)
District Judge: The Honorable Michael M. Baylson
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Submitted Under Third Circuit LAR 34.1(a)
February 4, 2008
Before: McKEE and AMBRO, Circuit Judges
and IRENAS , Senior District Judge*
(Opinion Filed: December 9, 2008)
OPINION
MCKEE, Circuit Judge.
Anthony Jackson appeals the sentence that was imposed on remand
following his appeal from the sentence that was originally imposed. He argues that

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the district court committed plain error by denying him his right of allocution
before resentencing him. For the reasons that follow, we will affirm.
I.
As we are writing primarily for the parties who are familiar with this case,
we need not set forth the factual or procedural background except insofar as may
be helpful to our brief discussion.
Jackson’s original counsel was allowed to withdraw and we are now in
receipt of a letter from subsequently appointed counsel, Peter A. Levin, wherein
counsel informs us that after reviewing the record and consulting with his client,
he has decided not to file a supplemental brief.
We previously vacated the defendant’s conviction on Count One of the
indictment because that offense was a lesser included offense of the charges in
Count Two. See United States v. Jackson, 443 F.3d 293 (3d Cir. 2006).
Accordingly, we vacated the sentence on Count One and remanded for
resentencing on Count Two. On remand, the district court reimposed the same
sentence on Count Two without hearing from Jackson.
Jackson now cites Fed. R. Crim. P. 32(i)(4)(A) in arguing that this was error
because he was denied his right of allocution. Rule 32(i)(4)(A)(ii) provides that a
sentencing court must “address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the sentence.” Although
the district court did not ask Jackson if he wished to speak at the resentencing,

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Jackson never objected to the proceeding, nor did he ask to be heard before the
new sentence was imposed. Accordingly, we review only for “plain error.” United
States v. Plotts, 359 F.3d 247, 248-249 (3d Cir. 2004). Under that standard of
review, we may award relief if Jackson can establish an error, that was plain, and
“affected [his] substantial rights.” See United States v. Olano, 507 U.S. 725, 734-
735 (1993).
Jackson also relies on United States v. Plotts, 359 F.3d 247, 250 (3d Cir.
2004). Plotts was sentenced for a violation of supervised release, a transgression
that is not punished with mandatory imprisonment. Id. at 251. Accordingly,
Plotts’ ability to address the court was potentially important to the court’s
determination of an appropriate sentence. “[A] defendant is often his most
persuasive and eloquent advocate.” Under those circumstances, we concluded that
denying Plotts an opportunity to address the court before sentence was imposed
affected his substantial rights. Id. at 250.
We reasoned that a “violation of the right of allocution could play a role in
a court's sentencing decision whenever there exists any disputed facts in
connection with sentencing or any defense arguments that might reduce the
applicable guideline range or ultimate sentence.” Id.
Jackson’s situation is different. The court already heard from Jackson at the
original sentencing. Jackson points to nothing to suggest that he was in any way
prejudiced by not addressing the court once again before resentencing on remand,

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and we see nothing in the record to indicate that the loss of that opportunity
affected his substantial rights in any way. Nothing on this record suggests that he
was prejudiced and allowing this sentence to stand despite that procedural defect in
no way undermines the public’s confidence in the judicial system. United States v.
Young, 470 U.S. 1, 16 (1985). Relief based upon plain error should only be
granted to correct those errors “in which a miscarriage of justice would otherwise
result.” Id., at 15. That is simply not this case.
CONCLUSION
For the reasons set forth above, we will affirm the judgment of sentence.

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