USA v. Knight

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 1, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-12408
Non-Argument Calendar
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D. C. Docket No. 4:10-cr-00228-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH O’NEAL KNIGHT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(November 1, 2011)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:

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Keith O’Neal Knight appeals his total 28-month sentence for theft of
government funds, in violation of 18 U.S.C. § 641, and copyright infringement, in
violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(1). Knight argues, and
the Government concedes, the district court committed reversible error at
sentencing by failing to provide Knight an opportunity to allocute, as required by
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).
Because there was no objection at sentencing, the district court’s denial of
Knight’s right of allocution is reviewed for plain error. United States v. Prouty,
303 F.3d 1249, 1251 (11th Cir. 2002). “To find reversible error under the plain
error standard, this Court must conclude (1) an error occurred, (2) the error was
plain, and (3) the error affected substantial rights.” Id. at 1251-52.
The relevant portion of Rule 32 states: “Before imposing sentence, the
court must: . . . (ii) address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(A). “The district court must clearly inform the defendant of his
allocution rights, leaving ‘no room for doubt that the defendant has been issued a
personal invitation to speak prior to sentencing.’ ” United States v. Gerrow, 232
F.3d 831, 833 (11th Cir. 2000) (quoting Green v. United States, 365 U.S. 301, 305
(1961)).
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Here, it is undisputed: (1) the district court erred by failing to provide
Knight an opportunity to allocute, (2) the district court’s error was a plain because
it was a clear and obvious violation of Rule 32, and (3) the error affected Knight’s
substantial rights because he did not receive the lowest possible sentence within
the Sentencing Guidelines range. Prouty, 303 F.3d at 1253.
Accordingly, we vacate the sentence and remand for resentencing.
VACATED AND REMANDED.
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