Denial of Allocution Right on Supervised Release Resentencing Requires Remand
The Seventh Circuit Court of Appeals has reversed a federal prisoner’s sentence because an Illinois federal district court denied his right to allocution upon revocation of his supervised release and imposition of a new sentence.
Bernard J. O’Hallaren III was required to serve 36 months of supervised release after completing his federal prison sentence on a charge of interstate transportation of stolen property. O’Hallaren did not comply with his conditions of release for long. At his first and only meeting with a probation officer, he tested positive for cocaine. The probation office then filed a special report that cited five grounds to revoke his supervised release.
At a hearing, the government agreed to O’Hallaren’s alternative sentencing proposal that involved a voluntary drug treatment program, provided that it included a subsequent 120-day outpatient program that would require O’Hallaren to live at the Salvation Army.
The probation office objected to this arrangement, arguing that O’Hallaren was a public risk because he continued to use drugs, past treatment programs had not worked for him, and he persisted in disobeying the law.
The district court scheduled another hearing to allow testimony on the validity and appropriateness of the treatment program in lieu of imprisonment. At that hearing, the Court reviewed the case history and acknowledged O’Hallaren had admitted to all five violations of his supervised release. After reciting O’Hallaren’s extensive criminal record and the various recommendations, the Court revoked his supervised release and imposed two consecutive 14-month sentences. O’Hallaren’s counsel objected and filed an appeal.
Under Federal Rule of Criminal Procedure 32.1(b)(2)(E), a defendant is entitled to “an opportunity to make a statement and present any information in mitigation” prior to sentencing for reimprisonment following the revocation of supervised release. This allocution rule requires the court to ask the defendant if he or she would like to make a statement for the court to consider in determining the sentence.
The Seventh Circuit found O’Hallaren was not afforded an opportunity to address the district court prior to the imposition of his new sentence. The appellate court held that it presumed prejudice when there was any possibility that the defendant could have received a lesser prison term had the district court allowed him to speak before imposing sentence.
While the Seventh Circuit could not speculate as to the persuasive ability of what O’Hallaren may have said, it did consider for the sake of argument what that statement might have been. The Court concluded that it could not say with any assurance that the denial of O’Hallaren’s allocution right did not affect his sentence. The denial of that right “seriously affected the fairness, integrity, or public reputation of judicial proceedings,” the appellate court held.
The case was thus remanded for resentencing. See: United States v. O’Hallaren, 505 F.3d 633 (7th Cir. 2007).
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Related legal case
United States v. O’Hallaren
|Cite||505 F.3d 633 (7th Cir. 2007)|
|Level||Court of Appeals|