New York Federal Criminal Practice Blog
April 15, 2009

Second Circuit Issues Notable Ruling on Defense Advocacy at Sentencing

Guest contributor David Johnson, Esq., writes:

The right to have one’s lawyer speak (and speak, and speak . . .) at sentencing has been given some lifeblood in United States v. Gutierrez, 2009 WL 323271 (2d Cir. February 11, 2009).  In the context of deciding whether a district judge (SDNY Judge Carter) had adequately rectified his initial failure to give defense counsel an opportunity to speak at sentencing, the Second Circuit held that the same standards governing a defendant’s right to speak at sentencing would govern the right to have defense counsel speak.  These include “a meaningful right to express relevant mitigating information before an attentive and receptive district judge.”  The case is a useful precedent to keep in mind and use strategically at sentencing hearings where judges are not so, well, attentive and receptive.


Gutierrez faced a guideline range of 24 to 30 months following his conviction after trial for possession of counterfeit checks and bank fraud.  His lawyer submitted a sentencing memorandum raising several grounds for a non-Guidelines sentence, including Gutierrez’ family circumstances and prior unblemished record, the fact that the prosecution emanated from a sting operation and therefore entailed no actual loss, and that the defendant had been subject to “imperfect entrapment.”  At the sentencing hearing, the district judge confirmed that the defendant had no objections to the presentence report, and then gave the defendant an opportunity to address the court.  The defendant offered a brief apology, after which, the court proceeded to adopt the findings and guideline calculations in the psr, and sentence the defendant to 24 months. 

Defense counsel immediately objected to the sentence on the grounds that the court had not adequately considered the defendant’s sentencing memorandum and had imposed a sentence without first hearing from defense counsel.  Stating there had been a “misunderstanding,” the court vacated its sentence and permitted defense counsel to speak on defendant’s behalf.  Argument ensued on the issues raised in the sentencing memorandum.  We especially like defense counsel’s argument on rebuttal that the government’s policy of advocating guideline sentences in every case (other than cooperator cases) makes their arguments essentially meaningless in any individual case – not to mention anachronistic in light of Booker et al.  The court, however, reinstated the 24-month sentence.  On appeal, the defendant claimed that his defense counsel had not been given a meaningful opportunity to speak, in violation of Rule 32 of the Federal Rules of Criminal Procedure.


Under Rule 32, a court must provide defendant (and defendant’s counsel) an opportunity to speak prior to imposing sentence.  The Second Circuit has previously interpreted this rule to require resentencing where a defendant had inadvertently been denied the right to speak in their defense.  However, where the error was an “inadvertent or harmless mistake” that was promptly corrected, the Court has held that the initial mistake would be excused.  In Gutierrez, the Court held that “defendant’s personal allocution and defense counsel’s argument on the defendant’s behalf serve essentially the same purpose at a sentencing hearing.”  Accordingly, “the same standards should govern the omission of allowing either to speak.”  Here, the district court’s quick and “conscientious” acknowledgement of the misunderstanding, its vacation of the prior sentence and its allowance for defense counsel to speak remedied any prior mistake.  The Court further held that defense counsel’s opportunity to speak was meaningful, where the substantive arguments made in the new hearing mirrored arguments made in the previously submitted sentencing memorandum. 

JaneAnne Murray adds:

The factual scenario here will presumably only arise rarely.  What’s notable about this case is the Court’s holding that the standards governing a defendant’s right to speak at sentencing also govern the right to have defense counsel speak, even where defense counsel submitted an extensive sentencing memorandum.  Thus, defense counsel must be giving a “meaningful” opportunity to speak, and, as noted above, must be heard by “an attentive and receptive” judge.  This is no mere technicality.  As any experts in the art of persuasion will agree, an oral presentation – with its passion, sincerity, and empathy – can have a far more searing effect than the written word.  Moreover, the jousting in oral argument can distil and hone issues in a way that a briefing schedule cannot.  As the Court notes itself in Gutierrez, defense counsel play an important role in the “adversarial resolution of the legal and factual issues to ensure that a defendant is not sentenced on the basis of materially untrue statements or misinformation” (emphasis in the original).  And while many defense lawyers are too loquacious for their own good, they are usually far better advocates at sentencing than the defendants themselves.

Lawyers: Edward Zas, Federal Defenders, Inc. (defendant); AUSAs Nicholas Lewin, Daniel Braun

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