Second Circuit Holds that Sentences Without Presentence Allocution Must Be Vacated

All defense lawyers have experienced a client wresting victory from the jaws of defeat with their heartfelt words at sentencing (and vice versa).  Now, in United States v. Gonzalez, 07-4824-cr, 2008 WL 2357234 (2d Cir. June 11, 2008), the Second Circuit has held, overruling prior precedent, that the defendant's right under Rule 32 to address the sentencing court and save his butt or shoot himself in the foot prior to the imposition of sentence is absolute, and cannot be given effect after the sentence has been imposed.

As Judge Newman, writing for the Court, sensibly points out:  "Whatever the value of sentencing allocution, neither a defendant nor observers in the courtroom are likely to believe that an opportunity to try to talk a judge out of a sentence already imposed is as effective as an opportunity to speak before a sentence has been imposed."

Thus, the sentence of Gonzalez - and any defendant going forward who is similarly denied an opportunity at presentence allocution - is vacated and a new sentencing proceeding must be held in accordance with Rule 32. 

The Court also vacated the sentence for the judge's failure to explain his reasons for departing above the applicable guideline range.  Here, the district court had sentenced a defendant on supervised release to two years, more than double the ten-month high end of the applicable range for the supervised release violation.  The Court criticized the brevity of the reasons given for the departure, noting that it was unclear if the sentencing court considered the  Sentencing Commission's policy statement concerning violation of supervised release that "the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”