United States of America v. Richard Plotts

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4575
UNITED STATES OF AMERICA
v.
RICHARD PLOTTS,
Appellant
On Appeal from the
United States District Court for the
Eastern District of Pennsylvania
D.C. Crim. Action No. 02-cr-00020-01
(Honorable Stewart Dalzell)
Submitted Under Third Circuit LAR
34.1(a)
October 30, 2003
Before: SCIRICA, Chief Judge,
NYGAARD and AMBRO,
Circuit Judges
(Opinion filed February 19, 2004)
Robert Epstein
Assistant Federal Defender
Brett Sweitzer, Esq.
David L. McColgin, Esq.
Maureen Kearney Rowley, Esq.
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence
Square West, Suite 540 West
Philadelphia, PA 19106
Attorneys for Appellant
Patrick L. Meehan
U.S. Attorney, Eastern District
of Pennsylvania
Laurie Magid
Deputy U.S. Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Terri A. Marinari
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
Richard Plotts appeals the District
Court’s decision revoking supervised
release and imposing a sentence of
imprisonment. Because Plotts was
denied the right of allocution at
sentencing, we reverse and remand to the

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District Court for resentencing.1
I. Factual and Procedural Background
In July 1995, Plotts was arrested
in Delaware on the suspicion of bank
robbery. Shortly thereafter, a grand jury
returned an indictment against Plotts,
charging him with bank robbery in
violation of 18 U.S.C. § 2113(a). He
pled guilty to a single count and received
a sentence of 80 months imprisonment
followed by three years supervised
release. In February 2002 (after serving
his sentence and while on supervised
release), responsibility for his
supervision was transferred to the
Probation Office for the Eastern District
of Pennsylvania.
Plotts was arrested in November
2002 by the Pennsylvania State Police
for violating 18 Pa. Cons. Stat. § 6105
(felon in possession of a firearm).
Shortly thereafter, the Probation Office
filed a petition to revoke Plotts’s
supervised release, alleging six violations
of his release conditions. The District
Court conducted a revocation hearing in
December 2002. The Government
presented the testimony of six witnesses.
Plotts presented no evidence. After
considering the evidence and arguments
of counsel, the District Court found that
Plotts had: (1) been in possession of a
firearm; (2) engaged in credit card
fraud2; (3) used drugs, including opiates,
on repeated occasions; and (4) lied to his
probation officer.3 Following these
findings, the District Court revoked
Plotts’s supervised release and sentenced
him to 30 months imprisonment followed
by 30 months supervised release. Prior
to sentencing, Plotts was not given an
opportunity to address the Court, known
as allocution. He appeals, alleging that
(1) he was denied the right of allocution
at his release revocation hearing before
sentence was imposed, and (2) the
District Court improperly treated a
charged Grade C violation as a Grade A
violation for sentencing purposes (thus
increasing his sentence).4
1 In its brief, the Government states
it does not oppose resentencing in this
case. We commend the United States
Attorney’s Office for its candor and
professionalism.
2 While we are unaware of any
formal criminal charges against Plotts for
credit card fraud, he admitted to his parole
officer using another individual’s credit
card for an unauthorized purpose.
3 On appeal, Plotts and the
Government present different versions of
the facts and circumstances surrounding
the revocation of his supervised release.
While this may be an area for the District
Court to explore on resentencing, it is
irrelevant to our resolution of this case.
4 We have jurisdiction pursuant to
28 U.S.C. § 1291.

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II. Standard of Review
As Plotts failed to preserve his
objections at the revocation hearing, we
review the decision of the District Court
for plain error. United States v. Adams,
252 F.3d 276, 279 (3d Cir. 2001); see
also Fed. R. Crim. P. 52(b). Under plain
error review, we may grant relief if
(1) the District Court committed an
“error,” (2) it was “plain,” and (3) it
affected “substantial rights” of the
defendant. United States v. Olano, 507
U.S. 725, 732 (1993). “A deviation from
a legal rule is [an] ‘error.’” United States
v. Russell, 134 F.3d 171, 180 (3d Cir.
1998) (citation omitted). It is “plain”
when “‘clear’ or ‘obvious.’” Id. (citation
omitted). In order for an error to affect
“substantial rights,” it must have been
“prejudicial”; in other words, “it must
have affected the outcome of the district
court proceedings.” Olano, 507 U.S. at
734. If these requirements are satisfied,
we should exercise our discretion to
grant relief if the error “‘seriously affects
the fairness, integrity or public reputation
of judicial proceedings.’” Id. at 736
(citation omitted); see also Adams, 252
F.3d at 284-85.
III. Analysis
We conclude that a criminal
defendant’s right of allocution extends to
release revocation hearings. Because the
District Court committed plain error in
denying Plotts’s right, we remand this
case for resentencing.5
5 Plotts also argues the District
C ourt committed plain error b y
mischaracterizing a Grade C violation,
unauthorized use of a credit card, as a
Grade A violation for sentencing purposes.
As resentencing is granted on the ground
that allocution was improperly denied, we
decline to entertain this alternative
argument. We note, however, that the
revocation petition filed by the Probation
Office with the District Court alleges a
Grade C violation. In its brief, the
Government concedes that Plotts’s actions
do not constitute a Grade A violation, but
instead insists they should be Grade B (not
Grade C). Because the petition already
alleges a Grade A violation (possession of
a firearm), Plotts would suffer little
prejudice if, prior to resentencing, the
Probation Office were to amend the
violation grade assigned to his
unauthorized use of a credit card. See U.S.
Sentencing Guidelines Manual § 7B1.4(a)
(listing the suggested imprisonment ranges
for Grades A, B and C violations). Until
revised by the Probation Office, however,
these actions rema in as initia lly
characterized, a Grade C violation. See
generally 18 U.S.C. § 3603(2) (stating that
it is the duty of the probation officer to be
aware of the conditions of supervised
release and to report to the sentencing
court conduct which may violate those
terms); U.S. Sentencing Guidelines
Manual § 7B1.2 (same); see also Fed. R.
Crim. P. 32.1(b)(2)(A) (requiring that a
defendant at a revocation hearing receive

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4
The rule in our Circuit is that
denying the right of allocution (at least in
sentencing hearings) will generally result
in resentencing under plain error review.
Adams, 252 F.3d at 289.
Rule 32(i)(4)(A)(ii) of the Federal Rules
of Criminal Procedure states a court
must, before imposing sentence, “address
the defendant personally in order to
permit the defendant to speak or present
any information to mitigate the
sentence.” In Adams, we concluded the
District Court in that case committed an
“error” that was “plain” by failing to
address the defendant personally prior to
sentencing. 252 F.3d at 286. With
regard to the “affects substantial rights”
portion of the plain error analysis, we
interpreted Olano as requiring “the
defendant to make a specific showing of
prejudice, unless he can show that the
error should be presumed prejudicial, or
that the error belongs in a special
category of errors that should be
corrected regardless of prejudice (i.e., the
category of structural errors).” Id. at
285-86. Prejudice should be presumed,
however, when a defendant shows the
violation of a right could “have played a
role in the district court’s sentencing
decision.” Id. at 287. We also stated that
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. All of
this is based on the belief that a
defendant is often his most persuasive
and eloquent advocate. Id. at 288.
While not constitutional, the right
of allocution is “ancient in origin, and it
is the type of important safeguard that
helps assure the fairness, and hence,
legitimacy, of the sentencing process.”
Id. Accordingly, we concluded in
Adams that denial of allocution at the
defendant’s sentencing hearing was plain
error and warranted resentencing. Id. at
288-89.
We have not ruled whether a
defendant’s right of allocution extends to
a revocation hearing. The Federal Rules
of Criminal Procedure fail to define
explicitly the scope of allocution rights.
Almost every circuit court to consider the
issue, however, has ruled that allocution
must be permitted before imposition of
sentence at a supervised release (or
parole) revocation hearing. See United
States v. Reyna, No. 01-41164, 2004
U.S. App. LEXIS 1134 (5th Cir. Jan. 26,
2004) (en banc)6; United States v.
“written notice of the alleged violation”).
On resentencing, the District Court should
consider the effect, if any, of its alleged
mischaracterization in the first instance.
6 The Reyna Court approved of the
plain error analysis in Adams, including
the conclusion that prejudice should be
presumed when violation of a right could
have affected a court’s sentencing
decision. 2004 U.S. App. LEXIS at *16.

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Waters, 158 F.3d 933, 944-45 (6th Cir.
1998); United States v. Patterson, 128
F.3d 1259, 1260-61 (8th Cir. 1997);
United States v. Rodriguez, 23 F.3d 919,
921 (5th Cir. 1994); United States v.
Carper, 24 F.3d 1157, 1160-62 (9th Cir.
1994); United States v. Barnes, 948 F.2d
325, 329-30 (7th Cir. 1991).7 In light of
our previously expressed views in Adams
on the importance of allocution, and in
reliance on the well-reasoned opinions in
other circuits, we too conclude that a
defendant’s right of allocution extends to
revocation hearings.
For similar reasons, we conclude
that the District Court’s error in this case
was “plain.” An error may be clear or
obvious absent controlling Supreme
Court or Third Circuit precedent. United
States v. Evans, 155 F.3d 245, 251-52
(3d Cir. 1998). In such a case, decisions
from other circuit courts are instructive.
See United States v. Barbosa, 271 F.3d
438, 456 (3d Cir. 2001) (relying on
previous decisions of two circuit courts
in finding plain error). In Plotts’s case,
the weight of appellate authority
discussed above is sufficient to render
the District Court’s error clear and
The Fifth Circuit, however,
disagreed with Adams somewhat as to
when an appellate court should exercise its
discretion in correcting a plain error. In
Adams, we stated without qualification
that denial of the right of allocution affects
the “fairness, integrity or public reputation
of judicial proceedings.” 252 F.3d at 288
(citation and quotations omitted). In
contrast, the Fifth Circuit concluded that
“[i]n a limited class of cases, a review of
the record may reveal, despite the presence
of disputed sentencing issues, that the
violation of a defendant’s right to
allocution does not violate the last Olano
prong. This case is a good example.”
Reyna, 2004 U.S. App. LEXIS at *19.
We are bound, however, to follow
Adams, and it carves out no exception on
its face. Further, the Reyna exception is,
by its own terms, limited; indeed, the Fifth
Circuit concluded that resentencing is
“ordinarily” required. Id. at *22. Reyna,
for example, had appeared before the same
judge three times, twice for violations of
the terms of his supervised release.
Although Reyna did not have the
opportunity to allocute at his
most recent revocation hearing, he “had
the opportunity to allocute both at his
original sentencing and when resentenced
following his first violation of supervised
release.” Id. at *20. Reyna is thus
distinguishable.
7 Although the Eleventh Circuit’s
decision in United States v. Frazier, 283
F.3d 1242 (11th Cir. 2002), appears to
support the position that allocution is not
required at a revocation hearing, this
opinion was later vacated. 324 F.3d 1224
(11th Cir. 2003). The only other circuit
court to endorse the initial position in
Frazier is the Tenth Circuit in an
unpublished decision. See United States v.
Fennell, 986 F.2d 1430, 1992 WL 401587
(10th Cir. 1992).

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obvious.
Based upon Adams, we also
conclude that prejudice to “substantial
rights” may be presumed in this case
because allocution could have played a
role in the Court’s sentencing decision.
252 F.3d at 287. First, there exists no
statutory minimum term of imprisonment
upon revocation of supervised release.
See 18 U.S.C. § 3583(e)(3) (permitting
imprisonment for “all or part” of the term
of defendant’s supervised release); see
also 18 U.S.C. § 3583(h). Second, even
though Plotts’s 30-month added prison
term was the lowest sentence within the
recommended Guidelines Manual range
of 30 to 37 months, the Court had
discretion to impose an even lower
sentence, as the revocation provisions in
the Guidelines are advisory policy
statements and not binding. See United
States v. Schwegal, 126 F.3d 551, 554-55
(3d Cir. 1997).
Finally, denial of the right of
allocution “is not the sort of ‘isolated’ or
‘abstract’ error that we might determine
does not impact the ‘fairness, integrity or
public reputation of judicial
proceedings.’” Adams, 252 F.3d at 288
(citation omitted). As such, this is an
appropriate case in which to grant relief.
* * * * *
We reverse and remand to the
District Court for resentencing.

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